The kids are not all right

Judge Ian McHardy says the Act promotes children having a relationship with both parents. Picture / Brett Phibbs

"Mummy is lying in front of the court. She got three quarters of what dad got paid."

The lawyer, quoting from a social worker's affidavit, is asking dad how his 10-year-old son could come to be saying such things. The father replies he's not sure - but that his son knew his parents had been to counselling about their separation and that there was an application before the court.

Kids say the strangest things. Here at the North Shore Family Court the 10-year-old's quotes have a terrible resonance - marking the beginning of the end of the father's application for day-to-day care of his children.

The child's words indicate the father may have breached a unwritten taboo of the court - never discuss court proceedings with your children and never try to pressure them to take sides. As the father is soon to find out, one parent denigrating the other to their child is not on.

This is a forum - until now conducted in secret - where, inevitably, dirty washing will be aired and past events will be dredged up, prodded and scrutinised. Thankfully, children do not attend.

In this case there's evidence the 10-year-old is adamant he doesn't want to live with his mother who has suffered from post-natal depression and was on Prozac for five years. Another affidavit tells of "the knife incident" when the mother frightened her son. "Please do not take me back," the child said in a letter. But, as the father is also about to discover, wishes are not always what they seem. And there's a difference between what children want and what they need.

Among several changes, the Care of Children Act now allows media to attend the Family Court so that the public can know more about what goes on behind its doors. At least that's the theory. In reality most of the Family Court proceedings are still shut to media eyes. Journalists can only attend defended Care of Children Act hearings which happen when all other avenues - counselling and mediation - have failed. Matrimonial and defacto property disputes, separation and dissolution orders, care and protection cases, adoption proceedings, counselling and all other court happenings remain off limits.

The underlying concept of the Care of Children Act is that parents, assisted by professionals, should work out parenting arrangements for themselves. In Auckland, the "find a solution" approach appears to be working. Not only is there a dearth of cases available for the Weekend Herald to attend, but many of those that are available are adjourned as parties reach 11th-hour consent agreements.

At the Auckland Court for example Usha Patel, the lawyer representing a child whose father has died, puts forward a solution to break an impasse. The mother is refusing to allow her daughter to have any contact with her father's Indian family. The child however misses her cousins so Patel suggests meetings at a supervised contact centre. The lawyers for the father's family and the mother agree and Judge Jan Doogue sanctions the settlement, praising the professionals involved and commenting that the softly, softly approach is sensitive to the issues of grief and cultural difference involved.

But at the North Shore court, where a father wants primary care of his eldest son and two other children, there's no solution in sight and a two-day hearing begins. Jurisdictional manager Bruce Archer says the Herald is the first media organisation to ask to attend a hearing there since the new Act came into effect in July. He runs through the rules - no naming, or reporting details that might identify, the children, parents, support people, speakers on cultural issues or witnesses involved. He also provides a "Media" sticker to be worn at all times which marks me a pariah. The lawyer for the children seems friendly, though, and it's easy to understand why the parents might not appreciate a media presence. I'm an intruder on private matters - a paid voyeur of their bickering, blaming and sad, painful circumstance.

The registrar leads the judge in. Those giving evidence swear on the Bible or by affirmation to tell the truth. The father sits with his lawyer at the desk on the judge's right, the mother with her lawyer to the left. In the middle is the court-appointed lawyer for the child. Witnesses wait outside to be called. No one else is allowed to sit in except media, who must be accredited and sit on the perimeter.

"You talk about mother's inconsistencies in day-to-day things and your lack of information about the children. But aren't these a consequence of the separation?" asks Judge Ian McHardy of the father. "You see things from a different perception. Like ships passing in the night, you're not listening to each other." Interjection from the judge is frequent - sometimes to explain, sometimes as an observation, and often as questions to the witness.

The father is concerned about the mother's mental state and that the oldest child in particular seems so afraid - on one occasion turning white and shaking when he sees his mother, and crying and resisting when taken back to his mother's house after a weekend with the father. The father's family and friends present evidence about the problem. "She [the mother] thinks if she has to share love there's none left for her," says the paternal grandmother. "I've never seen a well [mother's name]." But cross examination by the mother's lawyer Kathryn Hayman shows most of the evidence from the father's family and friends is at least a year old - and doesn't take into account professional assessments which don't find concerns about the mother's parenting. Under cross examination by the children's lawyer Greg Milicich, the father admits his serious concerns about the mother's mental ability are now "niggling doubts".

The case turns on the evidence of the court-appointed psychologist. The father is critical of the psychologist's report saying it didn't take into account what happened in his eldest son's early childhood. He's critical too that the psychologist didn't make it clear what was required when she visited his home. He had the impression she just wanted to talk to the children and so kept out of the way, but was dismayed to find the report criticised him for being passive.

As the cross examination proceeds, it becomes clear the psychologist has strong views. In her assessment the 10-year-old has picked up on comments and negativity about his mum and is blaming her for the separation - and trying to punish her. "What is going on is falling into emotional abuse of the child by the father." She says the father remains unwilling to promote a positive view of the mother to the children. "He [the father] has very little insight into the part he is playing in this situation." To break the cycle - so that all three children "get a clear message mum is not an unsafe parent" - the psychologist recommends three to four weeks of no contact with the father, a measure she has never recommended before. "[Eldest child's name] needs time to heal his relationship with his mother."

Milicich, the children's lawyer, points out that under the new Act, it's his role to explain to the children the decision of the court. He notes too that children have a right of appeal if a decision goes against their expressed views. "They [the two brothers] cried as recently as last week that they do not want to live with their mother and that they will run away." Milicich wants to know what can be done to assist the children should the decision be for them to remain in day-to-day care with their mother.

"The people that can help these kids and help the court are mum and dad - and dad mostly at this point," replies the psychologist. Earlier Judge McHardy explained that under the Act the court is obliged to promote children having a continuing relationship with both parents. He has also asked the father if he understands the difference between children's wants and needs. "Sometimes wishes need to be overridden by the parents."

The father's lawyer Natalie Dufty challenges the psychologist's view that the father is mainly to blame for the eldest son's behaviour. She outlines how the mother described feeling cloudy, useless and that she couldn't cope during her post-natal depression. "Is it possible that [child's name] was emotionally deprived of his mother's attention during this time?"

The psychologist says she doesn't have concerns about attachment. "It's possible to be attached to the mother but still hold a sense of rejection at the same time." Her main worry is that the eldest son has got into the habit of speaking in hateful and disrespectful ways about the mother and that before anything else, that relationship needs to be fixed. "It's against nature to hate one parent. It's not going to help in his mental health."

Judge McHardy says he cannot ignore the psychologist's evidence. He reminds the father that earlier he had said: "Then we'll know one way or the other" - in response to whether a temporary cessation of his contact with the children would help. By now it's clear the father's application is not going to succeed. Judge McHardy puts forward a proposal: the father should have no contact with the children for the next four weeks; the father should attend counselling on his own - specifically about the need to promote the mother's parenting to the children; arrangements should then be made for Christmas, with the father to have a several weeks of time with the children during the holidays; and then, if things go well, a shared parenting arrangement with the father having the children one day a week and every second weekend.

Outside the court room the mother and father discuss the proposal with their lawyers in separate conference spaces. The lawyer for the children scuttles between the two.

The rights of the child have increased under the new Act so it's not surprising that the lawyer for the child plays a key role helping parents reach consent. In another case at the Auckland court, Lynda Kearns asks Judge Tony Fitzgerald for time to discuss a report written on behalf of a child who at one stage was taken into care by Child, Youth and Family Services (CYFS). In conference rooms outside the court Kearns talks to the parents separately and then brings them together to agree on day-to-day care and contact arrangements. An hour later they're both back before Judge Fitzgerald who makes the orders agreed upon. He commends both parents for the "huge progress" made in their personal lives and sorting out the care and protection issues involved. He says it takes more courage to settle than to hand over decision making to someone else. "[Child's name] can't have what she wants - the two of you together. But she also wants you happy and co-operating together. I think she'll be happy about that."

Back at the North Shore court agreement is also reached. Milicich will tell the children about mum and dad's decision with both parents present. If there are any problems during the period of no contact with the father, the boys can call their lawyer. Judge McHardy asks for a memorandum confirming the arrangements and the court is adjourned. There's hurt emotion in the air, but also a sense of relief - a decision by consent rather than by court order - and a way forward.