There is a public health crisis, our children and families are suffering, and few people are speaking about it. What are we talking about? The current situation for dealing with parental separation disputes.
Parents who can’t agree about arrangements for their children after separation are required by law to go to mediation before taking the matter to the Family Court, unless there are exceptional circumstances. Yet, this is not happening.
In 2013, New Zealand introduced a mandatory requirement for mediation before applying to the Family Court. Yet, 10 years after this law came into force, only about 2000 family dispute resolution (FDR) mediations are held each year, whereas about 10,000 applications are made to the Family Court for a parenting order.
Why is this happening? Despite the mandatory requirement for parents to mediate before going to court, there is absolutely no enforcement of this. The Ministry of Justice did not put any resources into promoting mediation, despite the fact mediation costs the taxpayer a fraction of the cost of a Family Court case.
The court has the authority, in section 46F of the Care of Children Act 2004, to refer parents to mediation if they applied to the court without a justified cause. However, the average number of such referrals over the past six years was five cases a year across the country.
The law tells us mediation is mandatory in nearly all cases. Child experts tell us mediation results in better outcomes for children. Most Western countries acknowledged through legislation that mediation is a better way – yet in New Zealand, the legal system basically rejects mediation and clogs up the Family Court with cases that should and could be resolved in mediation.
The court system is founded on the principle of deciding who is right and who is wrong. By its very nature it is an adversarial setting. Once parents engage with the Family Court, they are forced to ramp up their animosity for each other to prove they are right. The average time for a Family Court case to reach a judgment is 2-3 years. This is an eternity for a child caught in the middle of a conflict between parents or who does not get to see one of them until the process is completed.
The inevitable result is poorer family relationships, parents becoming entrenched in conflict, and trauma for children. The experience has been described as a child mental health crisis. These children are growing up in an environment of acrimony and parental conflict that is worse for them than if they were exposed to passive smoking.
For the most part, if parents are supported by mediators, Parenting Through Separation courses and counselling, they are able to make the best decisions for themselves and their children. The benefit of this is that it saves separating parents the enormous costs associated with a court case – the financial and emotional costs, and the cost of the inevitable damage to their relationship with the other parent.
The best research from around the world found that the two most important things for children going through family separation are maintaining a good relationship with both parents and parents having a low level of conflict between them. Many of the children who give feedback to their parents at mediation say – plaintively and with tears in their eyes – “I just want my parents to stop fighting.”
Wellington-based Sue Hurst and Auckland-based Nurit Zubery are family dispute resolution mediators.
