The Importance of Accountability in Family Court Cases
It is impossible for change to occur in the family court, because there are few mechanisms for gaining insight into what occurs there. Parents (usually mothers) who have experienced family or sexual violence or abuse (either in relation to themselves or against their children), are afraid to speak out for fear of losing their children.
I made a mistake last week: I published an article that, while I had taken great care to mask any personal details of the mum mentioned in it, ultimately left this mum feeling distressed and fearful of a backlash from the family court judge that had recently separated her and her son.
Noting her distress, I of course immediately took the article down and have felt terrible about it since.
I published this story because it reflected a pattern I have seen repeatedly, again and again, across cases I was involved with or heard about while in practice, as well as across the many cases that I have also since read while researching on family courts over the last few years.
Noting these key themes, it was my intention to provide a resource for other women and advocates. That said, it was not my intention to jeopardise this woman and her son’s case and it is clear that their need for privacy must take precedence.
I will write another article at a later date, touching on those same themes in that article, but without this woman’s particular story included.
I do want to discuss my concern though, that in a free and democratic society, a mother should need be afraid of speaking out about what she is or has experienced. Such fears are reminiscent of what one might expect in an authoritarian regime: “don’t speak out or we will come for your family”.
In a purportedly free and democratic society, it is actually incomprehensible that anyone should be afraid in this way. As one recent NZ media article recently noted (in its headline no less): “Complaining about a Family Court judge isn’t safe”.
Quoted in that article is a key New Zealand family violence advocate, Deborah Mackenzie, co-founder of The Backbone Collective, who is noted as saying that ‘[w]omen and child victim survivors in the Family Court were some of the most vulnerable court users but were often penalised for complaining about a judge’.
This speaks to the enormous and too often unjust power wielded by family court judges.
It should not be this way.
Open Justice
The principle of ‘open justice’ is generally considered to be a foundational one in commonwealth courts (i.e. those of New Zealand, Australia, the UK, Canada & the USA, among others).
One District Court judge in my part of the world notes that open justice: “allows the public to scrutinise what happens in our courts. It maintains the public’s confidence in our justice system. A justice system that operated entirely behind closed doors would not have the public’s confidence.”
Family courts, generally speaking though, are closed courts: unless you are a party to the case or a representative, you are not allowed in the courtroom without permission. There is no public gallery, and I have been present in cases where even extended family members of case litigants, have been denied entry to watch proceedings.
Decisions of the family court, unless anonymised and officially published, are also expected to be kept secret and too often, in my experience, there are also explicit orders made that prohibit the publication of any information to do with a particular case, including with respect to any formal decisions that have been made by the judge.
Judges are also known to hold people in contempt for making recordings of their proceedings and on occasion, for those advocating / talking about their case outside of the courtroom. In such circumstances, a judge may broadly describe such actions as a “threat to the administration of justice”, and hold the person in contempt.
This denial of ‘open justice’, is purportedly justified on the basis of privacy concerns and the right to anonymity, particularly in relation to children.
In denying open justice though, family courts limit an important accountability mechanism, and in-effect, individual judges are free to become a law-unto-themselves.
For judges prone to bullying (as I have previously discussed in an earlier article), this means no accountability for actions that should be subject to scrutiny, in far too many family court rooms.
In addition to these issues and as one academic, who has also researched these specific issues notes: “While preserving anonymity is important to protect vulnerable parties such as children, it is difficult from a technical standpoint to maintain anonymity for those involved in public proceedings. The widespread availability of personal information online, coupled with the expansion of online case law databases, facilitates the identification of individual litigants, even if case law is anonymised. Anonymising family law cases by default is therefore a moot exercise that should not expand beyond the need to protect vulnerable individuals”.
While it is not denied that there will be cases where privacy is needed, as another academic researcher has also explored (in greater depth than I can here), the decision to deny open justice would also best be managed on a case-by-case basis, utilising an analytical framework that ‘systematically identifies both the benefits of open justice and the countervailing values that are at stake in a given case, and which seeks to provide maximum protection to all of these values on a case-by-case basis’.
The onus would then be on the judge (or other party in the proceedings) to justify why open justice should be denied and would require a judge to provide a decision on such.
Such an approach would at least provide some level of accountability, including removing the secrecy behind which poorly behaving judges can currently hide, as well as providing the routine ability to appeal any such adverse decision.
Why Appeals Do Not Provide The Necessary Accountability On Their Own Though
In should be noted, that although some family court decisions are appealable, many family court litigants do not in fact have a realistic or tangible ability to appeal family court decisions, both for financial reasons and because such processes exact an enormous emotional and physical toll.
This is particularly an issue for those who have suffered (or are continuing to suffer) family or sexual violence or abuse.
Many decisions are also not appealable, including where a judge simply bullies or behaves badly.
As a consequence, appeals rarely have the ability to hold judges accountable, as legal professionals often like to claim.
Financial Cost
Appeals are costly.
Unless fortunate enough to be legally aided, funds are needed up front to file the appeal and in addition to funding your own lawyer, generally speaking, you’ll then also be required to pay security for the opposing sides legal fees (in the event that you should lose).
All of this means that unless you have a few thousand sitting in your bank account, you’re likely to struggle to even get off the ground.
In my part of the world (and from what I understand, the situation is even worse elsewhere), few qualify for legal aid. To qualify, you either need to be a beneficiary, or have extremely low income.
For those who do qualify, it is then often also difficult to find a lawyer who still does legally aided family court work (most don’t).
The body that handles legal aid claims in New Zealand, has also become highly critical of claims for appeals, unless there is clear and obvious merit (which is rarely easy to prove).
Most self-represented litigants do not choose to represent themselves, but are forced into the position; this in turn can have a damning impact on their likelihood of success, particularly in a higher court.
Without a lawyer, it is extremely difficult to navigate appellate processes; as a former lawyer myself, I can think of numerous examples where I had filings sent back or criticised for explicitly failing to follow some arcane protocol at some point in the proceedings. In my experience, higher courts also tend to be even less accomodating of self litigants, than lower courts.
Accountability for a family court judge is therefore a rare prospect if we are relying on appeals, just on these issues alone.
Enormous toll on families
Financial hurdles are not the only ones faced though. There is also the enormous emotional and physical toll that any court proceedings brings, which for an appeal, comes on top of that which has already come before.
For survivors of family and/or sexual violence or abuse, prolonged proceedings and lack of supports available to assist victims, are particular barriers.
One academic study, involving 65 women who had engaged with the legal system after experiencing family violence, reported increased levels of stress and trauma as a result of impending court appearances.
In another study, the re-traumatisation of family violence victims through shared parenting and prolonged court cases, was also recorded, with exhaustion, frustration, and the overwhelming nature of daily living described by participants.
My personal experience is that on a number of occasions (and despite being a lawyer), I too found myself too physically or emotionally worn down to seriously comprehend filing an appeal.
My role, first and foremost has always been as a mum. With family court proceedings (in every instance) having already dragged on for a significant period, and with the need to work in addition to my parenting responsibilities, there was simply no time or energy (physical or emotional) for indulging in any serious notions around filing, unless it was absolutely fundamental to my children’s well being (i.e. if I had lost physical custody of them).
That meant that when, for example, I was declined a protection order in 2014, despite a finding of ‘low level domestic violence’ (far from the truth of things, but still an acknowledgment of the violence I had endured), I was physically and emotionally unable to appeal.
The judge in that case determined (in effect) that as a lawyer and an obviously otherwise capable woman, I was in no need of protection, whatever may have occurred.
The effect of that decision in my life, has since meant constant insecurity and fear for myself and my family , so that after numerous incidents following that decision, including finding my children’s father stalking me outside of my place of work, video camera in-hand, I finally felt that I had no choice but to pack up and move cities. That was near the end of 2016.
Ironically, just a few months after that, a Court of Appeal case with very similar facts to my own (although significantly less abuse involved, if these things can be measured) vindicated my understanding that what had occurred in my own case, was fundamentally unjust.
As in my case, the judge had (as noted by the Court of Appeal): ‘confined its inquiry to an evaluation of one affirmative finding of domestic violence and…failed to evaluate whether the husband’s behaviour over a prolonged period amounted to domestic violence’. The judge also declined to grant the protection order on the basis of that women’s purported strength of character.
In response to the Court of Appeal decision, Catriona McLennan, another very outspoken New Zealand lawyer, made this very poignant comment:
“That judgment found that an extremely experienced Family Court Judge had misunderstood and misapplied the Domestic Violence Act in almost every respect. That decision should have raised huge red flags both with the Minister and with the judiciary. There should have been immediate action to review the judge’s other domestic violence decisions, to check how many other women and children had been wrongly denied protection orders.A proactive and safety-first approach would have led to a review of all the Family Court’s domestic violence decisions. But none of that happened.”
Put another way, not all women are positioned to be able to do what that amazing woman in that case did. I was not able to and as a consequence, I was unable to hold my family court judge accountable for her errors.
That is what I mean when I say that the notion that we can hold family court judges accountable by way of appeal, is really quite ridiculous.
The Redundancy of Appealing in Many Situations
There are also issues in terms of what can be appealed. Generally speaking, for example, only appeals on legal issues will be considered by a higher court. Findings of fact, even where such findings have been made on the basis of prejudicial or incorrect assumptions by the judge (for example, on matters around family or sexual violence), are rarely (if ever) appealable.
There is also a redundancy inherent in appealing decisions that have immediate real world implications and where the consequences of such decisions are often long since irreversible before an appeal might ever be heard.
I’ve had a number of such cases in my time: Coyle, the judge who has dealt with the majority of my cases, has a penchant for without notice decisions. This has meant repeated cases, where a decision has been made before I even knew an application had been filed and with the opportunity to respond not then available to me. In every instance, the damage was done before I knew anything about it and an appeal would have been pointless.
No accountability available in those circumstances.
Judicial Conduct Commissioner
And just to round out this story, no the Judicial Conduct Commissioner is no means of holding a judge to account either. I am not the only one who has complained repeatedly about my judge noted above and none of us have ever heard a thing back. Complaints are referred back to the judges themselves and the process is a sham. More on that another day though.
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