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Open Letter to Principal Family Court Judge Peter Boshier

© Peter Zohrab 2009

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Dear Judge Boshier,

I refer to your interview on TV One on June 28th 2009.  Since the text of the interview is on the web, I assume that the interview was not edited before being screened -- incredibly enough!

 

Custody Bias

I say "incredibly enough" because of the following:  In response to the accusation that women get sole custody in two thirds of cases, you stated that men and women got sole custody equally frequently, as a proportion of the numbers of times that mothers or fathers actually applied for sole custody.  In other words, the reason for the fact that women get sole custody in two thirds of cases was that women applied for sole custody more often than men.   In response to the interviewer asking for clarification, you then said:

"Right, well if you've got a mother applying for sole care, it's logical (my emphasis) she's probably going to get sole care.  If a father applies for sole care he might, and so the number of applications that mothers file are many many more than fathers."

What is incredible, in my view, is that you did not see fit -- on one of the rare occasions when you have appeared on television -- to clarify your use of the word "logical".  It cannot be news to you that subsection 4(4) of the Care of Children Act 2004 states quite clearly that:

"For the purposes of this section, and regardless of a child’s age, it must not be presumed that placing the child in the day-to-day care of a particular person will, because of that person’s sex (my emphasis), best serve the welfare and best interests of the child."

Section 4 is the section which states that the principle of the welfare and best interests of the child must be paramount -- yet here you are, as the Principal Judge entrusted with the implementation of the Will of Parliament, as expressed in this Act, stating quite boldly and without qualification that subsection 4(4) is not worth the paper that it is written on!  Will you consider resigning?

As is well known to those of us who have studied law, and as is stated in the textbook Family Law Policy in New Zealand,1 people bargain "in the shadow of the law" -- i.e. with an assumption at the back of their minds about what the outcome would be if the matter went to court.  So what you were in fact saying was that most lawyers advise their clients that the New Zealand Family Court is biased against fathers, and that a female client would be well-advised to make an application for sole custody, but a male client would not.

 

Welfare and Best Interests of the Child

Since I am not a judge, however, I am free to criticise Parliament's insistence that the welfare and best interests of the child must be paramount.  There are typically at least three people involved in such cases: the two parents and the child.  It is prima facie arbitrary and a breach of two people's human rights for the rights of the parents to be disregarded.  I am fairly certain that, if it wasn't for the fact that this principle is usually interpreted in a way that suits the mother, it would never have been included in the Act.  Parliament is never happy unless it is favouring women and oppressing men. In that respect, you are in tune with the Will of Parliament.

Apart from the issue of human rights, there is also the issue of realism:   It would only make sense for the welfare and best interests of the child to be paramount if there was some rational process for coming to a reasonable conclusion about which decision on custody would actually best serve the welfare and best interests of the child.  There are principles stated in the Act, and there are criteria listed in past cases, but none of these are prioritised, and the job of the judge is to predict the future, when the science available to guide his decisions is even more uncertain than that guiding the forecasts of metereologists and economists!

Moreover, it is not clear that all the correct principles and criteria are being considered.  As your interviewer pointed out,

"A child that has no father is 14 times more likely to rape, 20 more times likely to go to prison...."

The principles and criteria do not mention preventing rape, imprisonment, unhappiness, poor school results, truancy, teenage pregnancy, drug abuse, suicide, and so on.  If they did, they would probably favour father custody or joint custody -- and that was certainly not the Will of Parliament, was it?

 

1 Henaghan, M. and Atkin, B., Family Law Policy in New Zealand, 2 ed 2002, Wellington:LexisNexis Butterworths, p. 267.

 

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