Parental Rights vs Presumed Best Interests of the Child
A couple of current news stories deserve comment.
Firstly, this story tells of a Family Court judge who decided it was in the best interests of the child to order in favour of mummy’s preference to send a 5-year-old daughter to a school closer to mummy’s place even though her siblings all went to a different school closer to the father’s place and where he wanted her to attend.
For good measure the judge also reduced the time the girl was to spend staying with the father. The father appealed to the High Court (good on him, though most fathers lack the means to do this). The High Court judge decided that the Family Court judge had erred in assessing the “welfare and best interests” of the child and that the Family Court decision was based on conjecture. The High Court ordered that the girl attend the father’s preferred school with her sisters and reinstated the previous 50:50 care arrangement in an alternating 2:2:3 pattern.
What this case highlights is the silly idea that judges can determine the best interests of children. This will usually be based on conjecture. The criterion is most often simply a convenient way for a judge to rule according to subjective preference, much more often in favour of female litigants given cultural and biological tendencies to feel compassionate towards females and want to protect them. So we see numerous cases where a mother’s wish is granted, for example, to move the children far away from the father’s residence and work, the mother’s claimed better mental state in her new place being seen to be in the best interests of the children while the resulting damage to the father-child relationships is shrugged off.
Sure, in extreme cases such as where one parent is alcoholic/junkie/insane/criminal abuser or the like and the other a stable homemaker, any fool could see that the best interests of the child would be to spend more time with the latter and for time with the former to be supervised until evidenced changes provide safety. Most Family Court cases are not like that but instead involve two caring, ok functioning parents disagreeing about child arrangements. Most Family Court cases involve one parent wanting to assert control, usually the mother believing she is wiser and more entitled to decide about the children and/or using the children as a weapon of revenge, jealousy or envy.
It’s time that the facade of ‘the best interests of the child’ is discontinued. A better test would be of the rationality and evidence base of the litigants’ respective arguments in a framework defining and emphasizing parental and granparental rights. Compromizes somewhat fair to both parents would then become more common providing each with some of what (s)he wants. In many cases the parties would come to realize that doesn’t work well and will come up with better plans.
The other story of significance is about Tom Phillips and his three children who have disappeared. He previously took them bush for several weeks without informing their mother or others where and for how long etc, leaving his vehicle on a beach below the high tide line with the possible intention of making it look like they had all drowned (though there are other possible explanations). He eventually returned home with the children where he was charged with ‘wasting police resources’, whereupon he took off again with the children and none have been seen (by anyone who’s saying) for almost a year. There were no Court orders preventing him from taking the children away on either occasion.
While family-law secrecy means we don’t know much about the machinations of this saga, one can speculate that Tom Phillips was asserting what he saw as his parental rights and that his preferences (e.g. that the children learn bush skills and survival) were not being respected. He may have been using his parental role to make a statement, e.g. “If you think you unilaterally can decide how the children are raised well then so will I”. Almost certainly he was not experiencing what he saw as fair treatment as a father, his wish to stay overnight with the children in the bush was probably being denied, and he will have been aware that he couldn’t expect fair consideration in Family Court. When he returned the first time with the children his attitude appeared to be ‘What’s the big deal? I did some father stuff with the children. If police take it on themselves to go looking for a suitably experienced father doing bush survival with his children then that’s their call”. Police couldn’t charge him with anything substantial but still wanted to punish him (and remind him that fathers shouldn’t be allowed to make decisions for their children) so charged him with wasting their time even though he never asked them to spend that time. His response has resulted in the current sad situation.
We do not condone Tom Phillips’ actions on either of the occasions he ‘went missing’ with the children. His behaviour is irresponsible and unacceptable in a civilized society. The anguish of their mother and loved ones will be terrible. The children’s needs and acceptable safety are clearly not being provided for and there may already have been a tragic outcome.
However, it’s important to consider the possible contribution of social attitudes and laws to this case. If this father’s wishes regarding the upbringing of the children were respected and accommodated it may well have enabled him to take the children bush for one night at first then for longer periods over time in a cooperative manner with their mother and others. If parental rights were prioritized in law then mothers would realize they cannot rule the roost over their children’s upbringing. We wouldn’t have so many separated mothers believing they can dictate how their children’s father raises them (within the law), what friends the father can have around when the children are with him and what activities he is allowed to do with them.
I can imagine many arguments, about what school.
Public schools, or expensive private schools.
The school close, or even wanting a religious one.
When parents are far apart, compromise may not work.
The judge forced to decide, and discriminate.
One parents ability for 50/50, is seriously harmed.
So who do we decide for, because I doubt it’s the child.
The parents lives, is dictating the judges choice.
Men disadvantaged more, with work commitments.
The stay at home mother, advantaged.
The judge more likely, deciding on the mothers options.
Best interest of the child, should be the outcome.
But policy should be, best interest of the parents.
If it works for the parents, it should work for the child.
If it doesn’t work for the parents, how can it for the child.
The worst result then for the child, is a disadvantaged parent.
Comment by DJ Ward — Mon 24th October 2022 @ 9:13 pm
See attached link to full High Court decision. The names of the parties and children have been anonymised.
http://www.nzlii.org/cgi-bin/download.cgi/cgi-bin/download.cgi/download/nz/cases/NZHC/2022/2649.pdf
I can’t find the FC decision NZFC 5719.
This confirms the family court is out of touch with the act and regulations. A good reset to refer to when it undoubtedly happens again.
The FC Judge was discriminatory against one gender thinking a mother knows best when really she was just being as awkward as she could. Not thinking of the Childs wellbeing.
Going to the High Court is not cheap. It is in the 10’s of thousands of dollars and cost are usually award against the person who loses. I note there were no costs in the decision. Perhaps that is to come. Regardless, men will be able to refer to this decision for the next period.
I am aware a large percentage of barristers choose not to engage with any family court matters. It was described to me as barristers who only work family court like to be called specialist. The term specialist conjures up they are experts, above other barristers. The reality is they are cut down or limited because they are not exposed to a wide range of hearings.
I think our High Court Judges are usually quite good. They deal with a broad range of matters and seem to adapt, understand what went wrong.
Comment by Lukenz — Tue 25th October 2022 @ 9:49 am
Is this the result, of capitalism or socialism.
Extreme socialism, is everyone is government funded.
Certainly the legal profession, gets plenty from taxpayers.
Some is good things, with well paid judges.
The flaw is ever more laws, needing more lawyers.
Not only men and women, even charities and commerce.
All of us at risk, of needing representation.
You can’t get justice in most cases, without them.
It’s almost like we all need, talking to a lawyer insurance.
Even thought this case, got a particular result.
The next father, still needs the lawyer to know the precedent.
The common person, may have no clue about laws.
We have become, dependant on lawyers.
Symbiotic and parasitic, at the same time.
The only solution, is demanding a higher standard.
Comment by DJ Ward — Tue 25th October 2022 @ 6:16 pm
I’ve tended to find the lawyers/barristers involved in the Family Court come across as not meeting the grade of a real lawyer and so they ended up in Family law 🙂 Most of the judges are ex Family law lawyers.
family court appears to exist as a secondary avenue to exact revenge on a spouse where the Police find no fault. It’s a place where myth, lies, conjecture, hyperbole and imagination replace facts and evidence.
The high court on the other hand is very technical and evidence based. But as Lukenz states it is financially out of reach for most of us.
Comment by ErasingDad — Wed 26th October 2022 @ 5:36 am
Abstract from news item link below.
An abusive serial litigant who called a female judge a “lazy cow” and demanded another staff member be turned out onto the streets where she could follow “her true calling of whore” has had his case thrown out of court.
https://www.rnz.co.nz/news/national/477362/man-who-abuses-judges-and-court-staff-has-case-thrown-out-of-court
Comment by Lukenz — Thu 27th October 2022 @ 9:56 am
That’s a lot of effort, in all his litigation.
And the article, doesn’t go into the details.
Except bad behaviour, in saying things.
We argue about false allegations, needing accountability.
And in saying silly things, he in effect does that.
Whatever the accusation it gets ignored, but not the bad words.
What irony, that they take legal action.
Say false things about them, creates action.
False things about you, get ignored.
From dozens and dozens of events, they find a few.
I know myself, I have written a few rough words.
If they searched everything, all of us are guilty.
What was all the litigation, actually about.
Comment by DJ Ward — Thu 27th October 2022 @ 9:46 pm
I can speak from experience, as a person who runs away.
In some ways, also doing it as a child.
It’s not a good response, but better than the fight response.
This case looks at a child with a problem, and judging parents.
https://www.stuff.co.nz/national/130242614/one-mothers-desperation-to-help-6yearold-son-who-keeps-running-away
“As a single mum, Josie has had many struggles with Oranga Tamariki over her children’s lifetime and feels that she is being blamed for Jamie’s escapes because she had severe mental health issues when her first son was born.”
So in diagnosing the boy, you can suspect genetically a cause.
Is the child’s illness, the same type as the mothers.
Or made worse, with the absent fathers DNA.
Is the fault then science, with DNA tests not done.
A simple medicine, could significantly help the child.
The parent can’t fix it, so how can they be blamed.
The crown is not offering medicine, and the parent saying no.
As for placing the child in care, the problems not fixed.
The mother is practiced, in finding the child.
Running from care, could become running and hiding.
It is not a better solution, than the mothers effort.
“Jamie was stood down from school last term due to his physical meltdowns which Josie says are triggered when he has to stop an activity he wants to keep doing.”
So already we have a situation, needing full time care.
“I just want him to succeed and to go to school because he’s so damn smart. He can do any task he’s given in minutes. It’s not fair on him. He just has extra needs.”
A solution to the running away, is he has a tracking device.
A device he can’t go without, like a watch.
Not fighting his obsession, but going along with it.
Finding the subject, the child is easily doing.
And finding the subject, the child finds hard.
So the parent, can’t be blamed for the education.
Education fails to work out, how the child learns.
What are we expecting, the child to become.
You can imagine an adult, great at a particular job.
As well as the predictions, of trouble and crime.
Are the odds better, in the mothers care.
What are the odds, with children in state care.
Must the crown prove neglect, to remove children.
Not just take children, because they can’t fix a problem.
Comment by DJ Ward — Sat 29th October 2022 @ 8:23 am
The trust and sharing economy and the new tech that made that possible ( UBER ) has just been destroyed in NZ by government oversight, additional costs and regulation – as Governments want to become the sole arbiters of Trust and Truth in the new age and decide who has access and how does not – So what happens if they get it WRONG?
What happens if you catch Government employees harming citizens and abusing their power?
Share freely please
https://www.reputationguardian.nz/product/5/trust-truth-in-a-dystopian-world/#
Comment by HORNET — Tue 1st November 2022 @ 6:31 pm
I was lucky today, in seeing spiders fighting.
My window frames, home to generations of them.
A gap between the framing, and the glass just right.
Three spiders were involved, fighting over prey.
The first to get the prey, was a good sized brown spider.
It retreated with it, into its tube of webs.
But two black spiders watched, one below and one above.
Both decided to follow the brown spider, but one was bigger.
The smaller pausing, then running away.
The bigger one entered the tube, and stole the prey.
The black spider, itself then retreating to its own tube.
It seems in nature, there must be a winner.
Humans are not much different, from the spiders
Someone does all the work, but ends up with nothing.
The two enemies compare forces, the weaker losing.
The strongest, steals everything.
The spiders adapted to our world, but have we.
The spiders have tiny brains, but have parenting sorted.
The spiders fought, but nobody was hurt.
The spiders who lost, quickly forget and move on.
The nature is the same, humans just making it more complex.
Our society experiences, the same things.
Nations fighting, and people fighting.
Even the family court is like the spider, having a winner.
Can we evolve, into sharing.
Comment by DJ Ward — Tue 1st November 2022 @ 8:52 pm