Open Letter to Principal Family
Court Judge Peter Boshier
© Peter Zohrab 2009
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!
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
"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
1 Henaghan, M. and
Atkin, B., Family Law Policy in New Zealand, 2 ed 2002, Wellington:LexisNexis
Butterworths, p. 267.
9 June 2016