Tears never far from the surface in family court case

Cross examination is a gruelling forum where, as Judge David Mather describes it, 'every scab is picked'. Picture Greg Bowker

The mother can't finish her sentence, unable to hold back the tears. "The best solution is [child's name] remaining ... ". Judge David Mather tells her to take her time. The mother struggles to speak again, but the tears flow. The judge suggests a break and adjourns the court. Everyone stands. As he leaves, the court registrar offers a box of tissues to the mother who takes them outside. The three lawyers, the father, the stepmother and the social worker sit down. There's an awkward silence.

Someone breaks the tension joking to the Child, Youth and Family Services (CYFS) lawyer Sam Anand.

"You've only just started Sam and look what you've done - you big meanie." Everyone knows what is really going on. In the previous hour and a half, the mother has been under respectful, but relentless cross examination by the father's lawyer Diane Ransfield and the strain is beginning to tell.

It's late afternoon on the second day of a Care of Children Act hearing at the Waitakere Family Court. Except for a large tapa cloth on the wall behind the judge's bench, and further Pacific art on another wall, the court space is like any other. At the centre the judge's bench, shielded by a closed balustrade, imposes authority on a line of lawyers' desks. On the judge's right the witness dock - a lonely fenced-off island. On the left the court registrar's desk. When they're addressing the judge the lawyers stand, but for most of the time everyone sits on utilitarian tubular steel framed chairs that make terrible graunching noises at the slightest movement. Everyone tries to sit still.

Earlier Judge Mather had welcomed me, the first journalist to attend his court since the new rules came into place allowing media access. He confirms I'm aware of the rules - no naming of any of the parties involved - and offers to explain the legal issues and process during some of the breaks. This case, he says, belongs to the 2 to 3 per cent of the particularly intractable kind - in this instance over a 10-year period. Poignantly, on this same day, the child in the middle of it all turns 11.

That morning the father, who is applying for day-to-day care (the new name for custody) of his daughter, is asked how much money the numerous court cases over the 10 years have cost him. He estimates $60,000 to $70,000. "One year it cost $22,000 in lawyer's fees. I had to sell my home to pay and was left with nothing to pay the other bills."

For much of the time during the battle the mother's lawyer was paid for by legal aid. But in more recent years when she returned to the workforce she became ineligible and also faced legal bills. Which may explain why for this hearing the mother is representing herself without a lawyer. It's a role in which the mother shows herself to be quite adept.

Mother: How did you find out [current partner's name] was made redundant?

Father: From your mother.

Mother: Have you ever questioned me about this or whether we were considering moving overseas?

Father: No.

Mother: Have you ever seen our house on the market?

Father: No.

Mother: Which member of my family do you believe lives overseas?

Father: [Family member's name] lives in Singapore.

Mother: Sorry, you're incorrect there.

Then when cross examining the father's new partner the mother asks: "When you made a decision to make a relationship with [father's name] did you at any time make contact with me to lessen the conflict between [father's name] and myself?'

Stepmother: "No I didn't think I needed to."

The parents split up when their child was 10 months. "It [the relationship] broke up because of the conflict that was happening in front of [child's name]," says the father. "I could see it was affecting [child's name]." Over the years there have been various shared parenting arrangements, many court orders, court warrants to enforce court orders and six psychologist's reports. Most recently, the child has been made a ward of the court - a guardianship order which is supervised by CYFS and which involves the child living out of Auckland with the paternal grandparents. The application for wardship by the child's lawyer, Judith Surgenor, arose out of concerns that the child was suffering emotional abuse. "Almost all of her life all she has known is her parents fighting. She has said that over and over," Surgenor prefaces a question to the mother.

Like all Family Court cases the evidence is pre-compiled in affidavits from all the parties. Children are kept well away from the proceedings, but the child's position is represented by the lawyer for the child. Judge Mather points out the Act specifically requires the lawyer for the child to take into account the child's views and wishes. Occasionally, when there may be a conflict between the views and the interests of the child, a lawyer "to assist the court" is appointed to represent the child's interests.

During the hearing the evidence is interrogated by cross examination of the witnesses who have sworn the affidavits. Unfortunately, media don't get to see the written evidence so have to piece together what's going on from the cross examinations. Over the two days witnesses are questioned and re-questioned from different points of view - by the mother representing herself, by the lawyers for the father, the child and CYFS, and by the judge. The result is a rather gruelling, sometimes cathartic, forum where, as Judge Mather describes it, "every scab is picked".

The central issue here is what's called "parental alienating behaviour" in the mother's home. It takes a variety of forms: the mother pressuring her daughter to prefer being with her; the mother being negative about the father to the daughter; and undue influence of the daughter by inappropriately involving her in adult issues. Even with the wardship in place, the mother has continued to try to influence her daughter at her grandparents' home via phone calls and by sending text messages and email.

The court-appointed psychologist is concerned that removing the child from the parents has failed to keep her "emotionally safe". She says the child is unhappy and confused.

"The major difficulty for her is to be careful that she does not offend the mother and [stepfather]." The distress has led to the child becoming overweight and craving food. The psychologist has concerns too about the stepfather who has opposed the child's involvement with her paternal family. At one stage he took out a trespass notice to prevent the father from attending the child's pre-school. In another instance the stepfather videoed the father when he collected the child from the mother's home. "[Stepfather's name] felt strongly about his role. He would like to have replaced [father's name]," says the psychologist.

On another occasion the mother took out a trespass notice preventing the father from coming on to her property. The result was that the child had to walk a "no-man's land" between her mother's front door and the gate whenever it was the father's turn for care. There was also the time the mother refused permission at the last minute for her daughter to go to school camp - sending her to school on the day of the camp without any camp gear. Her father was one of the parent-helpers.

The psychologist recounts some words of the child: "I really worry about saying the wrong thing and I'm worried and scared when I go back [to the mother's]." Another concern is how the child has been taught by the mother to keep secrets. "It's telling her [the child] important relationships require keeping secrets. If you don't keep them, you're not worthy of the relationship."

Asked about one of the many times she didn't keep to court orders defining when the father would have time with the child, the mother replies: "I was angry and upset about what the future might hold." Answers to other questions by the father's lawyer Dianne Ransfield are also evasive.

Ransfield: Can you now accept that the way you have involved [child's name] in these proceedings is inappropriate?

Mother: I was taught to answer children's questions when they ask them.

Ransfield: Do you accept that in your household you talk about [father's name] in negative terms?

Mother: No I do not.

By mid-afternoon on the second day, the case is looking as intractable as ever. Even the psychologist, when asked on the first day what her recommendations are, cries out "I don't know." She wants to ensure that if day-to-day care goes to the father, there is a safe way for continued contact (the new name for access) with the mother - important to ensure the child doesn't feel she is to blame.

The paternal grandmother also wants a solution. "I have to say [mother's name] could make things a lot easier from what I know." Asked how by CYFS lawyer Sam Anand the grandmother gives a list: by being more co-operative, by sticking to court orders, by not denigrating the father to the child; and by "generally helping [child's name] to feel easy about moving between the two households and not feeling guilty - she doesn't need to pick sides, it's not necessary".

CYFS has come in for some criticism during the hearing - mainly for assigning an inexperienced social worker to oversee the wardship and monitoring of parents' contact with the child. The department has since appointed a new social worker who both parents confirm has helped the situation markedly. Both ask that she be permanently assigned to their case.

When the mother returns to the court composed, but upset, she surprises everyone by saying: "I want the conflict to discontinue. I do think that with the monitoring that CYFS provides and with support from a third-party mediator, it is probably best if [child's name] lives with her father."

The CYFS lawyer has no further questions. Judith Surgenor, lawyer for the child, remarks that based on what the mother has said much of her cross examination is no longer necessary. The mother's concession has also made it redundant for the stepfather's evidence to be cross examined. But Surgenor does ask whether the mother understands that "it's not just conflict, it's undermining [child's name] and bringing her into adult issues".

At first the mother wants to share fault with the father: "I understand we both have and it's been very detrimental." Surgenor asks more directly. "Are you going to be able to support [father's name] in his parenting?"

Mother: "I have to." Surgenor suggests that discussion about parenting issues should be "between the two of you, rather than with [stepfather's name] as a go-between". Mother: "Yes it does seem appropriate."

Surgenor: "You're not going to walk away from [child's name] are you?"

Mother: "No."

In light of the development Judge Mather suggests the parents take some time to discuss issues - particularly with the lawyer for the child - and try and come to an agreement on how to proceed. He adjourns the court. "I try to give the parties and lawyers the opportunity to resolve cases at every stage prior to when the boom gets lowered," he tells me in the break, pointing out that here it's much better to engage the mother to do things better than to impose restrictions on her.

An hour later everyone is back in court. The stepfather is asked to join the session, but refuses. Judith Surgenor tells the judge what's been agreed: that the father will have day-to-day care of his daughter and the mother will have contact - restricted initially to day-time rather than overnight stays.

The wardship will continue with CYFS as the court's agent monitoring the situation. The lawyer for the child who has been involved with the case for eight years, will provide regular mediation sessions between the parents. The child and the parents should also have specialist counselling.

"It's accepted by both parents the conflict between both parents had to stop," says Judge Mather as he makes the consent orders. To do otherwise "would be to continue the emotional abuse of their daughter, and it's appropriate to describe the pressure which [child's name] had been subjected to in those terms".

The judge praises the mother for the concessions she has made which have allowed the resolution to happen, noting how difficult it must have been for her to do that. His message for both parents: "I accept their commitment to do things better in the future. I have no doubt they will do this."

Later in the week, the mother, father and daughter will meet with the lawyer for the child to explain the new arrangements and work out details. Tonight the father will briefly tell his daughter her parents have agreed she'll be living mainly with him, but still seeing her mum often.

The mother will phone to wish her daughter happy birthday.