Crisis court for marriage failures

Press, 31 October 1984, Page 19

Crisis court for marriage failures

Custody and access decisions in the Family Court have come under attack. GARRY ARTHUR completes his series of articles by outlining how the Court works and how it arrives at its decisions.

The Family Court is an unusual institution. It dispenses therapy as well as justice, calling on a big group of professionals to help married couples resolve their differences over separation, occupancy, division of property, and custody and access of children of the marriage. Ann Caseley, the counselling coordinator for the Family Court in Christchurch, describes the court as a sort of crisis centre for marriage breakdowns. People are referred to the Family Court’s counselling service by community agencies, solicitors, and doctors, or individuals can simply telephone the registrar and make appointments for themselves. A lot of people take that course to avoid setting in motion the official proceedings which would be started up by consulting a solicitor. Because of problems arising from the marriage they might have decided to separate and want to know what to do about property and access to the children. “In about half the cases, one partner wants to leave and the other does not. Mrs Caseley says they also see a lot of people who are in violent relationships, and a lot who are having difficulties over access to the children.

“Our role is to hear the problems, all the pain and upset. Our goal is to defuse the crisis and help them to sort out some of their problems before sending them on to lawyers or counsellors. We tiy to get them talking about their problems for the first time. “We don’t do on-going counselling, because there is a huge spectrum of people available to us to do that — Marriage Guidance, all .the hospital board’s resources,

voluntary agencies, private psychologists and social workers, as well as Social Welfare’s social workers and the educational psychologists.” The procedure is for the parties to sign a request for counselling, and for a Family Court judge to approve it, so that the Justice Department then has the authority to pay for it. Reports on the outcome of counselling come back to the court counselling service. If the counselling has failed to resolve the problem, one or other of the parties will be advised to go to a lawyer and file for whatever legal remedy is required — separation, access, custody, occupation of the family home. All applicants for separation must attend counselling meetings. At these sessions, described as “conciliation,” the counsellor is expected to look at the marriage and explore all the possible ways of reaching understandings. “The goal is to keep them out of court,” says Ann Caseley. “If they reach their own agreements with the help of a trained conciliator it is more likely that it will work and they will remain friends. Wide powers Anyone concerned about a child failing to thrive or emotionally disturbed by custody or access arrangements could certainly get in touch with the Department of Social Welfare, the department’s deputy director in charge of social work, Mr Malcolm Millar, said yesterday. Mr Millar said that Dr John Church of the Battered Wives Support Group was not correct in saying that cases were not

covered by the Children’s and Young Persons’ Act. It was a very wide legislation, and empowered the department to act where it had reason to believe that a child’s physical or emotional development was being avoidably prevented or neglected, or his physical or mental health or his emotional state was being impaired or neglected. For example, they might agree in conciliation on a custody arrangement whereby the father has the children at week-ends, the wife stays in the house until the children are 16, the wife will go on the benefit and pay the outgoings on the house, and the father will pay what is required to Social Welfare under the liable parent scheme.” Mrs Caseley says that in conciliation the parties will also learn that they cannot denigrate each other through the children, and that all children do better if they see both parents as much as possible. She favours what she calls “joint parenting,” with custody or access worked out to suit both parents. She does not believe that the child might feel like a parcel, being constantly shunted from one parent to the other. “Not if the child knows that the parent loves him and that the parents can’t, live together,” she says. “If the parents can remain amicable with their joint goal being the best interests of the children, the children will cope with all sorts of things. But it’s really difficult if the parents won’t communicate. “I don't deny that there’s a lot of pain in many marriages, and at the time of separation the one who experienced the most pain will try and punish the other through denying access to the children, or turning the children against them. That’s the reason for some bitter custody disputes.” Mrs Caseley says that where violence is an issue it must be appreciated that a violent spouse is not necessarily a violent parent. But where it is'alleged that a child is in dangdj- of sexual or

physical abuse, or that the child fears one parent, the Family Court counselling service will provide people to supervise access. Where such things are alleged, the court can recommend that specialists investigate the matter, and the whole family is required to attend the hospital board’s Child and Family Guidance clinic. “If the allegations prove to be true, of course it is a criminal offence,” says Mrs Caseley. She knows of two or three cases where fathers have been denied access to their children, not through a direct order forbidding it, but simply by no order for access being made. The reason in these cases was that the children did not wish to have contact with their fathers. Mrs Caseley says that two-thirds of all those who come to the Family Court work out solutions for themselves through counselling help. Of the other third, 10 per cent are unable to resolve their problems and have “continuing, ongoing strife.” The Family Court’s door is not closed to them, however. “Family law is never final,” says Mrs Caseley. “People keep applying back to the court because of changed circumstances.” Mrs Caseley assures women who fear that their children are being harmed that the court’s counsellors will investigate, through expert reports and assessment by educational psychologists. “I want to say that the court really does care about the children in these cases,” says Mrs Caseley, “and every allegation is followed up, and reports are always called for. “If the evidence says that a child shouldn’t have time with an applying spouse, the judge really wouldn’t consider ft. “A vast number of people are going through separation and custody decisions without reaching the polarised last 10 per cent. Between 60 and 90 people are referred from here to counselling every month.” She says the Family Court’s goal

is to help people reach decisions without the court. If no agreement is reached after the parties have been referred to counselling — and the disagreement is usually over custody of the children — then one party goes back to the court to apply for custody and access. The other party may oppose it or make a counter-application. A lawyer is appointed by the court to represent the children’s interests. Counsel for the children see the children — at school, with their parents, and in the home environment — and can make recommendations to the court as to what is best for the children. The next step is a mediation conference at which the parties and their solicitors attend a meeting chaired by the judge. He cannot make a ruling at a mediation conference, but he will put forward the available options and often the parties reach an agreement and an order is made by consent. If the parties fail to agree at a mediation conference, the judge may ask for more counselling, or for an independent assessment of the bonding relationship with the children, the suitability of the parents to have custody, and what course is best for the child. This will be done by Child and Family Guidance, and/or Social Welfare social workers.

At the Child and Family Guidance clinic, the family is assessed by a team of psychologists and psychiatrists who sit behind a twoway mirror (with the parties’ full knowledge) and observe the family’s interaction as they talk to two psychologists and receive family therapy. That assessment process may go on for up to four months. Mrs Caseley describes it as an educative and therapeutic experience for the family. A report made to the judge is then shown to the solicitors, who may call for a formal hearing at which the report writers give evidence, the solicitor for the child addresses the court, and the judge makes a ruling on custody and access. If either party is dissatisfied, he or she can appeal to the High Court. Or if the ruling proves unsatisfactory in practice, the parties have the right to return to court and put new evidence forward. At the time the court order is made, the judge can also order more counselling if he thinks that will benefit the child and family. Mrs Caseley says that since the Family Court came into being three years ago, a lot of people are getting “therapeutic intervention” who would not have had a chance before.