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Henaghan, M --- "Can You Feel the Law Tonight? Family Law in Action" [2003] OtaLawRw 1; (2003) 10 Otago Law Review 289

F.W. Guest Memorial Lecture: July 19th, 2002

Can You Feel the Law Tonight? Family Law in Action

Professor Mark Henaghan[*]

Family Law is sometimes described as a “touchy-feely” subject. It has its own specialist court, specialist judges and specialist reporting. The Family Court is closed from public view. The rationale for this state of affairs is the private and personal nature of the issues in dispute. Family Court judges are appointed, not only because of their legal experience, but also because their “personality” is suitable to deal with matters of Family Law. The disputes arouse deep feelings in the litigants.

Put yourself in the shoes of the litigants. What do you want from the Family Law system? In reality you probably just want to win the case at all costs. But what if you lost, what might appease you?

Let me venture a few suggestions. I am sure you would want the judge to be as impartial as humanly possible and listen fairly to both sides of the case and treat them with equal respect. You would want to know that the result you received would have been the same no matter who the judge was. You would want to know the result of your case was consistent with other cases similar to yours.

The guiding principles of Family Law are noble — the best interests of the child, equality and justice. To achieve consistency and impartiality these principles must have an agreed legal content. At the moment they do not — their application depends much on the personal feelings the judge brings to the case. Family Law depends too much on the “personality” of the judge.

Whose Best Interests?

The Conjoined Twins[1] case is described by the English Court of Appeal as a “unique” case. The Court says that its duty is to apply the law, that it is a Court of Law not a Court of Morals. The “principles of modern family law” are cited as the basis for the irresistible conclusion to the case.

The twins, Jodie and Mary, are conjoined and have a common aorta. Medical diagnosis establishes that Jodie is pumping blood for herself and Mary, because Mary’s lungs and heart are not strong enough to oxygenate and pump blood through her body. Had Mary been born a singleton she would not have been viable and resuscitation would have been abandoned. If the twins remain joined, both will die within three to six months or perhaps longer, because Jodie’s heart will not be strong enough to continue to pump blood for both over a long period of time. If the twins are separated and the common artery is clamped and then severed, Mary will die within minutes, but Jodie will have the chance of a reasonably normal life. The parents cannot bring themselves to consent to the operation. They are devout Roman Catholics who believe that it is God’s will that the twins were born the way they were and the matter must be left in God’s hands. “We cannot begin to accept or contemplate that one of our children should die to enable the other to survive. That is not God’s will. Everyone has the right to live so why should we kill one of our daughters to enable the other to survive?” The parents are concerned that, after the operation, Jodie will require further surgery to allow her to walk and it is not known whether her bowel would function normally. She might require a colostomy. Malta, the country the parents come from, has very limited medical facilities and the parents do not believe they will be able adequately to care for Jodie. “The life we have ... is remote ... with very few, if any facilities, which would make it extremely difficult not only for us to cope with a disabled child but for that disabled child to have any sort of life at all.”

Because the parents do not consent to an operation to separate the twins, it is unlawful for the medical authorities to go ahead. The medical team say they cannot “allay a collective medical conscience” and see children in their care die when they know one is capable of being saved.

The English High Court has an inherent jurisdiction and a jurisdiction under the Children’s Act 1989 to make a declaration that it is lawful in the circumstances of the case to separate the twins. The New Zealand High Court has an inherent jurisdiction to make such a declaration and the Family and High Court have jurisdiction under the Guardianship Act 1968 to approve of medical intervention against parents’ wishes.

There are two legal issues in the case. One is the Family Law issue — is it in the best interests of Jodie to have the separation? Is it in the best interests of Mary to have the separation? The other is the criminal law issue — is it lawful to carry out the operation?

The issues are stated variously by the parties and the Courts. The parents see the issue as one of killing Mary to save Jodie, which in conscience they could not do. The medical authorities see it as an issue of saving the stronger twin rather than let both die. The High Court Judge says the issue is whether or not Mary’s life should be prolonged, or whether there should be withdrawal of the blood supply to Mary (analogous to withholding food and hydration from a patient where treatment cannot save life). The English Court of Appeal Judges state the issue as one of choice between the equal rights to life which both Jodie and Mary have.

The English Court of Appeal starts its analysis with statements of “fundamental” legal principle: “every person’s body is inviolate”; “every life has an equal inherent value”; “life is worthwhile in itself whatever the diminution in one’s capacity to enjoy it and however gravely impaired some of one’s vital functions of speech, deliberation and choice may be”. The Archbishop of Westminster’s statement that: “The indispensable foundation of justice is the basic equality of worth of every human being” is endorsed by the Court of Appeal.

Johnson J in the High Court holds that it is not in Mary’s best interests to “prolong” her life because it is “worth nothing to her” and is “very seriously to her disadvantage”. Robert Walker LJ in the English Court of Appeal also decides that it is in Mary’s best interests to have the operation which would mean immediate death for her “since for the twins to remain alive and conjoined in the way they are, would be to deprive them of the bodily integrity and human dignity which is the right of each of them”.

The majority of the English Court of Appeal, Ward LJ and Brooke LJ hold that, while the separation operation was in Jodie’s best interests because she would most likely live longer, it was not in Mary’s best interests — “Mary’s life, desperate as it is, still has its own ineliminable value and dignity” and “the certain consequence of the operation is that she will die, which is not in her best interests”.

Faced with the construction that the two twins have an equal right to life, and that the operation is in the best interests of Jodie but not in the best interests of Mary, the Court resorts to metaphor to decide the case. Mary is described in terms which make her look like the inflicter of harm, morally culpable and deserving of little sympathy. Mary is described as in a state of “parasitic living” (a term normally reserved for the death in utero of a partially developed conjoined twin). “Mary does very little and her twin does all the work.”Mary is described as “growing at Jodie’s expense” — “she lives on borrowed time, all of which is borrowed from Jodie. It is a debt she can never repay”. Mary is described as a killer: “She sucks the life-blood of Jodie and she sucks the life-blood out of Jodie.” If Jodie could talk she would say “stop it Mary, you’re killing me”.

In a further metaphor, Mary is described as using “Jodie’s heart and lungs to receive and use Jodie’s oxygenated blood. This will cause Jodie’s heart to fail and cause Jodie’s death as surely as a slow drip of poison”. The metaphor is taken further to justify Mary’s status — she has “little right to be alive”; she is “designated for death”.

The medical authorities are portrayed as “sincere professionals” with a “collective medical conscience”. The parents are described as having a “lack of consistency”. The parents should “choose the lesser of their inevitable loss”. The parents are “uncompassionate” because “compassionate” parents with “equal love” for their twins “would elect to save the stronger”. The parents are criticised for a “natural repugnance” to killing Mary without facing up to their “duty” to “save” Jodie. Yet the Court of Appeal say in their judgment that had the medical authorities accepted the parent’s decision to let nature take its course, this would have been “a perfectly acceptable response” and that “there could not have been the slightest criticism”. To let both die is endorsed as lawful, in contradiction to letting one live which is also endorsed as lawful. Both separation and non separation are endorsed as lawful on the same set of facts.

The primary basis for the decision in the Conjoined Twins case is the utilitarian value of choosing the lesser of two evils. Ward LJ says “I can see no other way of dealing with it than choosing the lesser of the two evils and finding the least detrimental alternative.” Brooke LJ concedes that “our revulsion against a deliberate killing is so strong that we are loathe to consider utilitarian reasons for it”, yet concludes his decision with the assertion that “the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the conflicting interests of Mary”. No analysis or justification is given for this statement. Modern Family Law does start from the premise that a course of action which will preserve the life of a child is preferred. The much publicised Liam Williams-Holloway case where an order was granted by the Family Court in Dunedin (but eventually discharged when the parents refused to come out of hiding) for Liam to receive chemotherapy treatment which gave, at worst, a 50 per cent chance of saving his life, is an example of this process at work. The separation will give Jodie a good chance to a reasonable life. But is there a Family Law principle which justifies taking Mary’s life when it is accepted that it is not in her best interests?

Baby L was born with severe neurological abnormalities.[2] She was unable to control the muscles on her face which were paralysed, she was deaf, could not breathe effectively on her own, could not swallow or clear secretions from her mouth, and she was developing signs of severe cerebral palsy. She was on a ventilator in intensive care and her condition was deteriorating. The medical prognosis was that Baby L’s outlook was hopeless and that treatment was futile and was causing her suffering. Baby L’s parents wanted to preserve her life as long as possible. Auckland Healthcare wanted to withdraw the ventilatory support — “the present treatment is not prolonging Baby L’s living but is prolong her dying”. Dame Silvia Cartwright, a graduate of the Law Faculty in this University and the current Governor-General, sat on the case along with Paterson J. The Court accepted that it is best medical practice that when a child is dying that process should not be unnecessarily prolonged. The Court held it was in Baby L’s best interests to withdraw life support because she would not “survive more than a few months, that her chances of recovery were non-existent, and that she was suffering discomfort from the treatment, and that it was inhumane to continue with it”. Mary’s case is different, she is not on life-support. What is required is actively to kill her rather than to remove life-support. Active killing is a breach of the criminal law.

Both Ward LJ and Brooke LJ justified the killing according to legal defences. For Ward LJ, the justification for the killing of Mary was “quasi self-defence modified to meet the quite exceptional circumstances nature has inflicted on the twins”. Self-defence is normally a defence against an aggressor. A helpless person like Mary would not normally be classified as an aggressor. However, once the moral choice is made self-defence is modified to meet the circumstances.

Brooke LJ uses the defence of necessity to justify the killing of Mary. Previous legal authority R v Dudley and Stephens,[3] reaffirmed in the House of Lords in R v Howe,[4] sets down the proposition that necessity cannot be a defence to murder — the life of an innocent cannot be taken to preserve the life of another. To decide otherwise, according to Lord Coleridge in Dudley and Stephens, would be to divorce law from morality. Brooke LJ says that previous authorities are “not conclusive” on the matter and that there are “those who believe with equal sincerity that it would be immoral not to assist Jodie if there is a prospect that she might live a happy and fulfilling life”. On the basis that “the evil inflicted must not be disproportionate to the evil avoided”, Brooke LJ approves the operation and concludes “the proposed operation would give both children’s bodies the integrity which nature denied them”.

Robert Walker LJ holds that the operation is in the best interests of both Jodie and Mary. Continued life, whether long or short, is said to hold nothing for Mary “except possible pain and discomfort, if indeed she can feel anything at all”. The operation is not unlawful because “it would involve the positive act of invasive surgery and Mary’s death would be foreseen as an inevitable consequence of an operation which is intended and is necessary to save Jodie’s life”.

Because the case was classified as “unique” by the Court of Appeal and even though there was discussion of legal principles, the decision was based on what the Judges believed was the rational solution. The basis for the decision in the Conjoined Twins case is not legal principles but the Judges’ own views of the best outcome. They were a Court of Morals and not a Court of Law.

The parent’s position is that the lesser of two evils is to let both twins die naturally rather than deliberately killing Mary to save Jodie. The parents do not want Mary to be used as a means to an end to save Jodie. The parents could not be subject to criminal prosecution as Tovia Laufau’s parents (the Auckland couple who did not bring their 13-year-old son to hospital for cancer treatment) were for failing to provide the necessaries of life and as Caleb Moorhead’s parents were for failing to obtain a vitamin B injection.

In the end, a comparative evaluation of the relative worth of the lives of Mary and Jodie has been undertaken. Where does the utilitarianism stop? What if Mary and Jodie are born as separate twins? They both have major medical problems. Mary has a healthy heart but dysfunctional kidneys. Jodie has a weak heart. If there is no medical intervention both will die within a few weeks. If Mary’s heart is removed and placed in Jodie, then Jodie will have a good chance of surviving into old age but Mary will die immediately. In pure utilitarian terms — the terms that are used in the Conjoined Twins case — we kill one to save the other. Once we start down the pure utilitarian track there is no barrier to “organ harvesting”— kill one to save another. Yet if the law is to be consistent and coherent why is it that it is justifiable to sacrifice a conjoined twin for the purpose of the other twin’s survival but not permissible to condone such sacrifice in other cases where one will die and another will survive? The Court of Appeal endeavoured to limit the ambit of their decision — “it must be impossible to preserve the life of X without bringing about the death of Y, that Y by his or her very continued existence will inevitably bring about the death of X within a short period of time, and that X is capable of living an independent life but is incapable under any circumstances (including all forms of medical intervention) of viable independent existence”. This conceptualisation inevitably pits one twin against the other. Mary’s existence is “bringing about the death” of Jodie — “in a disquieting echo of reality TV’s Big Brother, the judges all voted for Jodie to stay and for Mary to be evicted”.

Two thorapagus twins, Natasha and Courtney, are about to be born in Britain. These are the most common form of conjoined twins, occurring in 35-40 per cent of cases. The twins share part of the chest wall, a single heart and a single liver. The liver can be split and regenerated but the heart cannot. Both are likely to survive and are expected to live for one year if they are not separated. If they are separated, one will die and the other will live. Based on Mary and Jodie’s case, who is to be X (Jodie) and who is to be Y (Mary) out of Natasha and Courtney? Who is to have the heart and live on and who is to be killed? Doctors suggest the heart should go to Natasha because it is further inside her body than Courtney’s. The parents want the operation. There is no weaker twin here to classify as a parasite killing the other. The legal justifications in Mary and Jodie’s case cannot be applied.

The Queensland Supreme Court in Queensland v Nolan[5] has followed the result in Mary and Jodie’s case using different justifications. Alyssa and Bethany were joined at the head. Alyssa had one kidney and Bethany had no kidneys and no bladder. They shared cranial draining veins and therefore blood. Alyssa’s kidney removed waste from both their bloodstreams. Bethany had cardiac failure and would die within 24 hours. Alyssa would also die at this time. If they were separated Bethany would die immediately but Alyssa would have a 20-40 per cent chance of survival. The parents asked the Court for permission to separate the twins. The Court gave permission saying the case was on all fours with Jodie and Mary’s case. Chesterman J who decided the case followed the minority reasoning of Walker LJ and the trial judge, Johnson J, that the operation was in the best interests of both twins. Given it would lead to Bethany’s immediate death, on any rational analysis it is not at all possible to defend that it is in her best interests.

In Queensland, necessity is not a defence under the Queensland Criminal Code. Instead, Chesterman J relied on section 286 of the Code which imposes a duty on doctors to “provide the necessaries of life” and to “take action that is reasonable in all the circumstances” to remove Alyssa from any danger to her “life, health or safety”. Section 151 of the New Zealand Crimes Act 1961 has a similar provision. That is certainly a new twist on this duty — which leads to the potential to kill others for the purpose of organ-harvesting to fulfill the duty to provide the necessaries of life to another. It also shows that the duty must inevitably be breached for Bethany because she is deliberately killed in the process.

The other legal provision relied on by Chesterman J was section 282 of the Code which provides a defence for surgeons performing a “surgical operation” “in good faith” and with “reasonable care and skill” for the “benefit” of the patient. Section 61 of the New Zealand Crimes Act 1961 has a similar provision. There was benefit for Alyssa but where was the benefit for Bethany? The only way to justify benefit to Bethany would be to follow the justification given by Robert Walker LJ in Jodie and Mary’s case — “That surgery would also be in the best interests of Mary since for the twins to remain alive and conjoined in the way they are would be to deprive them of the bodily integrity and human dignity which is the right of each of them.” Given the operation meant immediate death for Mary and Bethany, the ideals of human dignity and bodily integrity mean nothing. If there is no legal justification then matters should be left as they are rather than judges deciding according to their personal feelings.

Weighing and Balancing Best Interests

“Reason cannot control the subconscious influence of feelings of which it is unaware” is how the New Zealand Court of Appeal[6] sums up making a decision about where children should live when their parents have separated and one parent moves away from the home town. The court says that “while seeking total objectivity we are all influenced to some extent by our own perspectives and experiences”.

The mother, Siobhan, is Irish, the father, David, a New Zealander. They meet in 1986 while the mother is on a working holiday in New Zealand and marry in Ireland in 1988. A year later, they return to New Zealand where they reside for eight years as a couple. Three children are born of the marriage, all boys — aged five, eight, and 10 at the time of the dispute. They separate in 1997 and share the care of their children in Christchurch. The mother has 60 per cent of the care and the father 40 per cent of the care. When the mother visits Ireland for six weeks, the father has 100 per cent of the care during this time. The mother says she wants to return to Ireland with the children to live. In 1999, the father applies for a shared custody order and an order preventing the removal of the children from New Zealand. The mother applies for a custody order and an order permitting the removal of the children from New Zealand to Ireland. The mother says she will be desperately unhappy if the Court does not make the order but that she will not abandon the children and will remain in New Zealand with them.

The leading Court of Appeal case on the issue, Stadniczenko[7], holds that the overriding test is the best interests of the child and that those interests can be found by “weighing and balancing factors which are relevant in the particular circumstances of each case without any rigid preconceived notion as to what weight each factor should have”. The well-being of the custodial parent, and the relationship between the child and the access parent are “equally important”. The reasons for the move, the distance of the move and the child’s wishes must also be given consideration. The Court of Appeal accept that different judges can reach different results on the same set of facts when “weighing and balancing” the factors.

In the Family Court, Judge Callaghan puts weight on the importance for the children of having a regular and on-going qualitative relationship with both parents, which would not be possible if the children returned to Ireland with the mother. Emphasis is on their current stable life-style where the children are doing well as opposed to the risks of relocating to Ireland.

Psychological evidence of the important role fathers have in the development of boys is strongly influential in the judgment: “Research establishes that fathers have a particularly important role to play in the development of boys and for boys active and positive paternal involvement has been found to be associated with the reduced incidence of anti-social behaviours, increased educational performance and social career choice.”

The final order is for the father to care for the children for 40 per cent of the year and for the rest of the time to be in the care of the mother on the condition she will not remove the children from New Zealand without the leave of the Family Court.

The mother appeals to the High Court. One crucial item of new evidence is introduced. The mother says in an affidavit — “I have made the decision that for my own well-being and sanity I will return to live in Ireland whatever the outcome of my present appeal.” This proves to be crucial in the appeal. Panckhurst J chooses not to apply the approach in

Stadniczenko, which is binding on him, but rather relies on a recent English Court of Appeal case Payne v Payne.[8] The key ruling in that case is that “refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children”. A primary emphasis in the case is placed on the “effect of the refusal of the application on the mother’s future psychological and emotional stability” as the “most crucial assessment” in the majority of relocation cases. The psychologist who gives evidence in the case refuses to express a view in favour of either parent because the parenting skills and resolve of each is such that either could adequately fulfill the primary parental role. The psychologist concludes that he did not think he had ever been in a situation where he felt the merits and disadvantages of the two options for the children were so finely balanced.

Panckhurst J concedes that the “simplest, safest and least disruptive answer would be for the boys to remain here where they are settled and content”, yet decides that “the best interests of the boys will be promoted if they accompany their mother to Ireland”. The key reason is the boys’ “need for a mother”. The youngest boy has consistently expressed a preference to be with his mother. The two older boys did not want to appear disloyal to either parent. Panckhurst J says nurturing the children had been the mother’s “essential function in life since the children were born” and “she believed she could better fulfil her role as a mother in Ireland as opposed to New Zealand”. Panckhurst J acknowledges the father’s performance as a sole custodial parent when the mother went to Ireland for six weeks but questions “whether the grind of combining a career and the care of three young lads, on a permanent basis, would not take its toll”. The risks and detriments of a shift to Ireland are held to be outweighed by the gain “which will flow from the presence of [S] as a mother”. The father applies unsuccessfully to stop the order being carried out while he appeals the judgment.

Seven months later, when the children have been living in Ireland with their mother for five months, the Court of Appeal hears an appeal by the father who acts for himself.

The majority of the Court of Appeal hold that Panckhurst J was wrong to put too much on the approach in Payne v Payne with the emphasis on the well-being of the custodial parent. New Zealand judges are required to take a “wider all-factor child-central” approach which requires the “reasonableness of a parent’s desire to relocate with the children to be assessed in relation to the disadvantages to the children of reduced contact with the other parent along with all other factors”.

Blanchard J, the dissenting judge, holds that Panckhurst J had not erred in law and that he had taken into account all the factors the Family Court Judge had, but then chose to put crucial weight on the emotional needs of the children to be with their mother.

The appeal is allowed but, because of the process of time, the Court of Appeal does not make an order for return because the changes have been so substantial that it is almost “a matter of looking at questions of custody and residence afresh”. A rehearing in the Family Court is ordered.

Three months later the rehearing is heard in the Family Court[9] by a different Family Court Judge than the one who conducted the first week-long hearing. The rehearing takes four days.

The boys’ wishes have changed. The oldest child (now eleven and a half) prefers to remain in New Zealand because he misses the company of his father and his friends. The middle child, (now nine and a half) after living with his mother in Ireland expresses a 70/30 preference for remaining in Ireland with his mother. The six-and-a-half-year-old, who previously wanted to be with “Mum in Ireland”, says his preference is to spend an equal amount of time with each parent year by year. All three boys are united in their desire to remain together. The boys take pains in their expression of preference to emphasise country rather than parent because they do not want to lose the unconditional love of both of their parents.

The father by now, is “angry, frustrated and bitter”. He had succeeded in the Family Court establishing that co-parenting in New Zealand was best for the children. He succeeded in the Court of Appeal showing that the High Court was wrong. He had sought a stay of the High Court judgment unsuccessfully. The stay would have meant the children would have remained in New Zealand until the appeal is heard in the Court of Appeal. He is now angry that a flawed High Court judgment has deprived him of his “rights of fatherhood”.

Just as the mother’s ultimatum to return to Ireland has been successful in the High Court, the father’s “embittered attitude” is successful in the rehearing in the Family Court. There is concern that if the children remained in Ireland, the father will undermine the mother through contact by e-mail particularly with the oldest child (who it is predicted would become unhappy and most likely to return to New Zealand), which will then make the mother less trustful of contact with the two younger children, with the possible outcome that the mother will find it difficult to send the children to New Zealand for access. If the children are placed with their father in New Zealand, it is predicted that he will feel vindicated and his bitterness, anger and frustration will abate over time. It is predicted that, because of his demanding employment schedule, the father will view access as beneficial for him and the children and will therefore foster access. The other major factor is the oldest child’s express wish to live in New Zealand, which meant that he will want to return leading to a separation from the other children. Added to this, Judge Somerville says “for these children, who are so energetic and interested in outdoor pursuits, life in New Zealand as adolescents has more to offer than life in some small town in Ireland”. In the end, the mother’s need to live in Ireland was held to come second to the “needs of her children to live in the land of their birth and have regular and beneficial contact with their father”.

The result of the case is that the children are to return to New Zealand before the third school term in New Zealand. The father insists on a joint custody order to reflect the equal rights and responsibilities of both parents in the upbringing of the children, even if the mother does not return from Ireland. The parents do not agree on how frequently the children should travel to Ireland and how long the visits should be. Judge Somerville says contact with the mother, if she chooses to remain in Ireland, will be twice a year — during Christmas and the middle of the year. The children will only have to travel every 18 months, during the other periods the contact will occur in New Zealand. The costs of travel are to be shared.

Three months later, before the children return to New Zealand, the mother appeals the Family Court decision to the High Court.[10] Two High Court Judges hear the appeal. The general principle of law in such an appeal is that the appeal court will “normally” be reluctant to substitute its view for that of the Family Court. At the time of the appeal, the children have been living in Ireland for 11 months, apart from a Christmas holiday in New Zealand.

The High Court Judges, who do not see the witnesses but work off the transcript of evidence, do not accept the Family Court’s analysis that the father’s “embittered attitude” will heighten conflict and lead to a likely breakdown of communication between the parents if the children are not returned to New Zealand. The High Court holds that “the factor that tips the balance in favour of the children remaining in Ireland is that they are now well settled in that country and are progressing satisfactorily”. The mother is granted sole custody subject to access to the father twice a year in July and at Christmas with the children only travelling to New Zealand once every 18 months. Both parties are to share the costs of travel.

Nine Judges have considered the case. Eleven days have been spent in Courts. Judges have emphasised different factors to reach different results depending on how they “weigh and balance” the best interests of the children.

A rule-based approach will create more consistency rather than the current one which depends on whatever the particular judge wants to emphasise as long as the other factors have been considered. What should the rule be? The social sciences do not provide a clear answer. Judith Wallerstein,[11] an American psychologist, has been highly influential in the American courts taking on a presumption in favour of relocation for the custodial parent.

Based on her own research, Wallerstein says “the ‘well-functioning’ custodial parent is the key factor for the well-being of the child and the new ‘family unit’”. The custodial parent is often the mother. Wallerstein finds that frequent and continuing contact between father and child is “not significant in the child’s psychological development”. The conclusion is surprising given Wallerstein’s earlier work with Joan Kelly,

Surviving the Break-Up,[12] where the central theme for the well-being of children was an ongoing relationship with both parents who communicated in a civilised manner.

Warshak,[13] after an analysis of 75 studies, says they generally support a policy of both parents remaining in close proximity to their children. The studies are used to support a link between frequency of contact and emotional health. These studies support a presumption of an ongoing relationship with both parents and therefore are against relocation with one parent.

A possible answer to the deadlock is the law itself. The Guardianship Act 1968 gives each parent equal rights to care for their children and bring them up, which presumably is the ideal situation and seen as legally best for children. The law could work on the basis of the minimum disruption to equal parental involvement after the break-up of a relationship. There will of course be exceptions where there is violence, or sexual abuse, or where a parent has been absent from the child’s life. Minimum disruption is also open to interpretation. But all judges would be focused on the same criterion and the emphasis would be clear. If a rule of minimum disruption applied here, the mother would know from the beginning that if she chose to go to Ireland she would be disrupting the children’s relationship with both parents and she would not be supported by the law.

Equality and Justice

“Equality” and “justice” are two terms synonymous with any system of law. But what they mean is not a simple matter. Lord Denning, a very famous English judge, said in 1973[14] that at the end of marriage the wife should get one third of the property and the husband two-thirds. The reason why this is “just” according to Lord Denning is as follows:

When a marriage breaks up, there will thenceforth be two households instead of one. The husband will have to go out to work all day and must get some woman to look after the house — either a wife if he remarries or a housekeeper if he does not. He will also have to provide maintenance for the children. The wife will not usually have so much expense. She may go out to work herself, but she will not usually employ a housekeeper. She will do most of the housework herself, perhaps with some help. Or she may marry, in which case her new husband will provide for her.

The Report of the Royal Commission on Social Policy received a submission which said that the equality sought by the Matrimonial Property Act 1976 — “to ensure that women received full recognition for their non-paid work within the marriage” was not being delivered. The reason given was “a perceived lack of equality of outcome and a consequent sense of injustice to women and to the children of a marriage relationship”. The essence of the concern was “that the loss of, or failure to gain, a career and its related prospects is not compensatable by an equal division of assets at separation”. The reason for the gap is that the “most vital asset” of the marriage, the job, is not part of the divisible property.

The Social Policy report cites a hypothetical case of a wife who financially supports a husband while he acquires a professional degree. After separation the assets may be few but the husband’s earning potential is great — “for the wife, and usually the children, the prospect of a reduced standard of living, unless remarriage occurs, is the usual economic outcome of divorce...”. The Matrimonial Property Act 1976 was criticised for not being able to compensate the wife for her “actual loss” or her “loss of future expectations” nor was it able to “attack any future earnings” of the husband. The Royal Commission on Social Policy recommended that legislation in this area should be based on a principle of “equality of result” which would look to the future and attempt to ensure that “both spouses had equal ability” to attain a reasonable standard of living. To achieve this will generally involve “an element of compensation” for the spouse who has “sacrificed” economic advancement in the interests of the marriage and the children.

The case of Mr and Mrs Z sparked much public controversy at the time. Mr and Mrs Z were married for 28 years. There were three children of the marriage now all financially independent. When the parties married, the wife was working as a secretary at a higher income than her husband. She stopped work a year before the birth of the first child and undertook limited casual part-time typing work for about five years from home. At the time of marriage, the husband was working in a government department and studying part-time for his accountancy qualifications. He later obtained a postgraduate diploma and, before he was 40, held one of the senior positions in the department. He was head-hunted into the private sector from 1 July 1987. His income increased greatly from $59,000 to $300,000 in 1994 at the time of the separation. The partnership deal required retirement at 60 which in the husband’s case would be in 2004. The husband had health problems and was in a position where early retirement was a distinct possibility. The value of the matrimonial property, which would be shared equally, was $900,000, consisting of the matrimonial home and adjacent land, chattels, a holiday home, investments and other properties. The wife had health problems and it appeared unlikely that she would be able to work. She was receiving a sickness benefit of $7,000 per annum. At the end of the marriage, the husband left the wife in possession of the matrimonial home and agreed to pay $1,980 maintenance per month plus ongoing expenses in the home. The wife made a claim to the Family Court[15] for a share of her husband’s future earnings. Judge Robinson took the view that “a division of property which results in the husband receiving an annual income of over $320,000 whilst the wife receives just on $7,000 is hardly [just]” and awarded the wife $140,000 as her share of future earnings. An accountant for the husband gave evidence that 25 per cent of the husband’s future earnings could be attributable to the marriage. An accountant for the wife gave evidence that 79 per cent of the husband’s income was attributable to the marriage. Where are these figures plucked from? Does accounting training really prepare accountants to make such calculations? Judge Robinson held that 33 per cent of the earnings were attributable to the marriage — another stab in the dark, which provides no basis for future certainty in the law.

The basis of the decision was flawed and the Court of Appeal[16] overruled it holding that “future earnings” were not matrimonial property because they had not been acquired. The Court of Appeal was emphatic in its conclusion — “Where it is as clear as it is in this case, however, that Parliament has not intended a particular outcome, the Courts cannot impose it. A Court can interpret a statute, it cannot amend it.” A 1988 working party on the Matrimonial Property Act 1976 concluded that future earnings should not be added to the Matrimonial Property Act but rather should be dealt with by extension of the maintenance laws.

The Property (Relationships) Act 1976 (which came into force on 1 February this year) has as its purpose the recognition of the “equal” contribution of husband and wife, and of de facto and same sex partners, to the marriage or partnership. It also says the purpose of the Act is to provide a “just” division of the property whether the relationship ends by separation or death. “Just” is further defined as “having regard to the economic advantages or disadvantages arising from the relationship and the ending of it”.

A highly controversial addition in the new Act is the discretion given to the Court to redress economic disparities between the parties at the time of division of relationship property.

The Property (Relationships) Act 1976 provides for this “element of compensation” in two ways. One is where the income and living standards of one of the parties is likely to be “significantly” higher than the other and this has been “caused” by the effect of the division of functions within the relationship while the parties were living together. If the Court considers it “just” it may order a greater share of relationship property to the lower earner thereby departing from the presumption of a 50/50 share. The other situation where compensation can be awarded is where, again, there is likely to be a “significant” difference in income and living standards because of the division of functions within the relationship and the higher earner/living standard partner’s separate property was increased in value, whether wholly or in part, because of the direct or indirect actions of the low earner while the parties were living together. The Court can, if it thinks it just, order compensation out of relationship or separate property. The Court is able to have regard to the likely earning capacity of each partner, the responsibilities of each for the ongoing care of children, and any other relevant circumstances.

Gavin, aged 45, meets Lynette, aged 24, in June 1986. Lynette was living in a de facto relationship with another man at the time. A year and a half later, in March 1988, they marry. Gavin had purchased a house in Remuera, Auckland for $44,000 in 1979 before he met Lynette and there was a $20,000 mortgage on the house which they now both live in. Both Gavin and Lynette are employed in the advertising industry. Gavin is earning between $80,000-90,000 per annum. Lynette is earning $38,000 per annum. With the exception of short periods of unemployment during the birth of the two sons of the relationship, Lynette is employed either full-time or part-time in the advertising industry. In 1987, the husband’s mother gives him $20,000 with which he repays the mortgage on the family home.

In 1991, Gavin is made redundant and, tired of working in advertising, does not seek re-employment in that industry. The same year the first child, Henry, is born and Gavin decides to run his own business (perfumed wardrobe tiles) from home. It is not a great success but does achieve sales of $130,000 in the second year. The second son, Richard, is born in 1993 and a nanny is employed.

In January 2000, Gavin and Lynette separate. He is 61, she is 41. Gavin files proceedings under the Matrimonial Property Act 1976 in May 2001. A three-day trial is set down for 18 February 2002.[17] The new Property (Relationships) Act 1976 had come into force and the property distribution was required to be decided under that Act.

At the time of hearing Lynette is on $100,000 per annum and Gavin on $3000 per annum (excluding child support). Gavin is caring for the children. There is $1.1 million of matrimonial property ($640,000 of which is the home) to be shared equally between them.

Gavin argues that there is a significant difference in income and living standards between him and Lynette at the end of the marriage. Priestley J accepts that the difference in income is significant but not the difference in living standards because Gavin would be able to re-house himself from the entitlement and have a “significant” capital sum which he could invest. Given the current value of the house is $640,000 and Gavin will receive $550,000 from the division of property, the figures do not quite add up.

Gavin argues that the difference in income between Lynette and him is because of the division of functions within the marriage. Gavin says he contributed $650,000 from his pre-1991 income, his redundancy and the home to the relationship, which relieved Lynette of any obligation to divert her money to the acquisition of a home and freed her up to advance her career. Priestley J disagrees, holding that the husband’s economic position is not caused by the marriage but by the cumulative effects of his age, his decision to retire from the advertising industry and his decision not to seek more remunerative employment.

What if Gavin is really Gertrude and Lynette really Lionel. The ages of 61 and 41 are still the same. Gertrude has remained at home throughout the marriage while Lionel has worked and is on $100,000 per annum. Would Priestley J still say that the reason why Gertrude is not on a similar salary to Lionel is because of her age, and because she has not attempted to find work?

Denise meets Joern in Europe in 1992 while on an overseas holiday and they start living together. They marry in 1996, have two children and move to New Zealand from Germany. Denise had graduated with a BA and had been employed as a Research Analyst earning $32,000 per annum before she met Joern. She worked in Germany for a consulting firm earning $62,213 per annum. After the birth of the first child, Denise stops work and in 1998 commences a law degree. Joern works as an engineer throughout the relationship and marriage earning income which varies from $70,000 to $141,000 per annum. When the relationship ends in 2001, Denise is on the DPB with care of the two children. Joern returns to Germany and is on a salary of $141,406. There is $144,630 of relationship property to be divided equally.

Judge Boshier rules that Joern’s likely earning capacity and standard of living are significantly higher than Denise’s.[18] The difference, according to Judge Boshier, is caused by the division of functions in the marriage. Denise had given up her career and income to care for the children (which she continued to do) while Joern has developed superior earning capacity.

Judge Boshier says it is just, given the disparity, to make a compensatory award — “the economic disparity will be substantial and real because of Joern’s declination to participate in the expensive business of parenting children.”

The legislation gives complete discretion as to the sum that can be awarded. Judge Boshier awarded $30,000 which was 40 per cent of Joern’s share of relationship property. This means that Denise received 65 per cent of the total relationship property and Joern 35 per cent.

Let us go back to Mr and Mrs Z. Given there is $900,000 of property, Priestley J’s analysis that Mrs Z could re-house and invest capital out of her share may apply. If it does not, was the cause of the difference the marriage functions or was it Mr Z’s skills and Mrs Z’s age and ill health? If the marriage is found to be the cause, is it just to award more than the 40 per cent amount that Judge Boshier did for Denise given Mrs Z was in a 28-year marriage, bringing up the children and caring for Mr Z. An amount of 50 per cent or more of Mr Z’s share could be awarded. This would come to $225,000 or more and give Mrs Z a 75 per cent share of the property. Mr Z has ill health. Once the compensation is paid, he may have had to stop work and no longer be on the salary of $300,000. Decisions will invariably vary depending on the personality and personal feelings of the particular judge. In attempting unfettered justice, much injustice may well be done.

Inequality and Injustice

Who would deny that all children should have an equal claim against the adult world for optimal conditions of upbringing? Craig Manukau, Delcelia Witika, James Whakaruru and Lillybing have all received public attention after their deaths. All were known to public authorities before their deaths yet little was done to protect them. The Children, Young Persons and Their Families Act 1989 has the mandatory principle of protecting children from harm. A key object of the Act is prevention, achieved, in turn, by assisting families who are at risk so that equal opportunity for a healthy upbringing is provided to children in these families. Yet when the time came to fund the Act at its inception, to ensure there were financial resources, in a Department Report 15 April 1987, the Treasury observed that “...much of the Department’s resourcing of the Bill is for preventative and supportive services which are not specifically required by the Bill”. On 24 April 1987, the Minister of Finance wrote to the Chairperson of the Select Committee scrutinizing the Bill — “the Committee should consider whether the aims of the Bill could be achieved at lesser costs”. This fiscal-driven beginning has dogged the operation of the Children, Young Persons and Their Families Act.

Judge Michael Brown in a Ministerial Review[19] of the operation of the Act in 2000 found:

... inadequate staffing levels, insufficient money to support families at risk, crisis management, and residual service provision by the State ... the qualitative performance indicators on which the Department of Child, Youth and Family reports to Parliament create an incentive to avoid costs, long-term interventions with families, and to close cases early (Òwithin three months with no further action requiredÓ).

“Funding is so tied to the Act”, stated Robin Wilson, the first General Manager of the Children and Young Persons Service, to the Ministerial Review. “I’ll say this, and I don’t know that anyone will actually believe it, but I swear to you it’s true: that the Treasury actually suggested to us, because we couldn’t manage with our budget, that we should actually do fewer child abuse investigations ... that’s just unbelievable!”

Judge Brown found the “deplorable situation” of 3,379 unallocated cases.

Three Commissioners for Children complained to the Minister of Social Welfare about the inadequate resources provided for child protection:[20]

... the reality of family empowerment depends on resources and support services. Many families are living in very poor circumstances: without adequate incomes, in poor quality housing and without the support of others in caring for their children and acquiring skills in managing their families. The rhetoric of family responsibility can readily lead to the reduction of the support of the state sector, which is essential to the wellbeing of many families.

New management structures introduced in the 1990s played their part in exposing children to risks — outcomes, outputs and key performance indicators focused on financial performance rather than child protection. Contestability between service providers became all the rage. Process replaced people. The result:[21]

An unintended consequence of this decade [1990s] of change was a child protection service that became increasingly incident focused. A notification of abuse was frequently received and treated as a discrete incident, with the response and interventions designed to address that incident alone... This kind of battlefield triage, where cases only receive attention when they get severe enough, does not respect the rights of children and does not provide adequate child protection. Each time a child is renotified there is a real danger that the abuse will be more severe, the problem more entrenched and the long-term damage to the child more pronounced.

All the studies[22] show that there is one key ingredient to keep children safe and healthy and that is a competent caring adult. Without public investment in competent caring adults more children will die. Best interests, equality and justice will mean nothing to these children. The Government’s response[23] is to develop yet another action plan, which will depend on budget decisions for implementation.


Without legal content, the symbolic principles of Family Law of best interests, equality and justice are meaningless. It is a primary task of the legal academic to conceptualise the legal meaning of these principles. In this lecture I have attempted to show that a rule-based legal focus in Family Law will lead to a Family Law system which is more likely to be impartial, consistent and coherent. A public commitment and investment to an equal chance of a safe upbringing for all children will ensure that the best interests of the child, equality and justice are alive and well in our Family Law system.

[*] This Guest Lecture also doubled as Professor Henaghan’s professorial inaugural lecture as professor of law at the University of Otago.

[1] Re A (Conjoined Twins): Surgical Separation [2000] 4 All ER 964; [2000] 1 FLR 1.

[2] Auckland Healthcare Services Ltd v L [1998] NZFLR 998.

[3] (1884) 14 QBD 273.

[4] [1986] UKHL 4; [1987] 1 AC 417.

[5] [2001] QSC 174.

[6] D v S [2001] NZCA 374; [2002] NZFLR 116 at 129.

[7] [1995] NZFLR 493.

[8] [2001] EWCA Civ 166; [2001] 2 WLR 1826.

[9] Family Court, Christchurch, 20 March 2002.

[10] S v D, 5 July 2002, AP 10/02.

[11] “To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children following Divorce” (1996) 30 Family Law Quarterly 305-332.

[12] Surviving the Break-Up (Grant McIntyre, 1980)

[13] “Social Science and Children’s Best Interests in Relocation Cases: Burgess Relisited” [2000] 34(1) Family Law Quarterly 83.

[14] Wachtel v Wachtel [1973] EWCA Civ 10; [1973] Fam 72 at 94.

[15] B v B, 18 June 1996, Family Court Auckland.

[16] Z v Z [1997] NZFLR 241.

[17] de Malmanche v de Malmanche [2002] NZFLR 579.

[18] Fischbach v Bonnar [2002] NZHC 331; [2002] NZFLR 705.

[19] Care and Protection is About Adult Behaviour, December 2000.

[20] I B Hassall and G Maxwell, “The Family Group Conference: A New Statutory Way of Resolving Care, Protection and Justice Matters Affecting Children”, Office of the Commissioner for Children, A Briefing Paper: An Appraisal of the First Year of the Children, Young Persons and Their Families Act 1989 — A Collection of Three Papers, June 1991, Wellington, p. 4.

[21] C Craig “Beyond the Tip of the Iceberg” (1998) 11 Social Work Now 33.

[22] Wald, Carlsmith and Leiderman, Protecting the Abused Child (Stanford University Press, 1988).

[23] Hon Steve Maharey, Press Release, 1 March 2001.

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