When relationships break up, it is frequently any children involved who suffer most. They often become pawns in a wider game – the struggle between parents over custody and access rights, or questions of responsibility for their financial upkeep, for example. Sometimes, the struggle goes beyond the parents, and involves the wider family, or even the community in which they live. But whatever the circumstances, the innocent children at the centre of the dispute generally have the least say in its resolution.

The recent tragic case involving Tom Phillips and his children portrays all these elements. Even now, with Phillips dead and the children remaining in the care of the state while Police investigations are carried out, their mother, who remains their legal guardian, says she does not know when they will be returned to her. The children, meanwhile, have no option but to go along with what is happening and being decided around them.

Sadly, parents too often use their children as a means of getting back at the partner from whom they have separated. In many cases, an unseemly tug-of-war develops between the custodial parent (often but not always the mother) and the non-custodial parent (frequently the father) over access to the children. Where informal custody arrangements exist, these are often breached when one parent or other decides it does not suit them to have the children at the previously agreed time. Family Court mandated custody arrangements are more reliable but are also often breached. But whatever the custody arrangement, the children’s interests and preferences invariably run secondary to the tussle of wills between the estranged parents.

The same applies with regard to financial support for the children. When I was Minister of Revenue responsible for the Child Support scheme it was always my view that every child had the right to the love, attention and support of both their parents, whatever the circumstances, and that, equally, every parent had the responsibility to support their children, also whatever their circumstances. My strong preference was that parents should be encouraged to jointly reach their own voluntary agreements about the upkeep of their children, and that the state’s Child Support scheme should be a back-stop, to be applied only when parents could not or would not reach agreement.

Unfortunately, for too many parents Child Support became an easy default position, which just happened to conveniently relieve them of any obligation to reach satisfactory arrangements for the upkeep of their children. But this often created an intolerable situation where one parent was set against the other, probably exacerbating much of the bitterness present in already fraught situations. Frequently, custodial parents felt they were receiving insufficient support from their former partners, and non-custodial parents argued they were getting insufficient access to their children for the Child Support they paid.

This clash between access and financial support was as visceral, as it was misplaced. Parents are responsible for supporting their children regardless of the level of access they receive and there can be no compromise or trade-off on that. Access and support are separate issues and should not be linked to each other, and cannot be traded the way some parents think.

That they can be is a consequence of an essentially confrontational approach both at the Family Court and in the Child Support system. For the administrative ease of both, there has to be a custodial parent and a non-custodial parent, a winner and a loser if you like. The system struggles to cope with the concept of shared custody or shared financial support arrangements. And in this environment, it is not surprising that the children have so little say.

In 2012, I amended the Child Support Act to give greater encouragement and recognition of shared parenting arrangements, which better reflected the financial circumstances of both parents, not just the non-custodial (paying) parent. However, I am not sure that this has worked out as intended, for a number of reasons.

At the time, officials, brought up on the Child Support Act and the more draconian liable parent scheme which preceded it, were sceptical that shared parenting arrangements would work or could be enforced, so I suspect did little to encourage their utilisation. Moreover, shared parenting arrangements called for a greater level of commitment to the wellbeing of their children than recently separated and still angry parents were willing to make. So, once again the inherently inflexible Child Support scheme became their easy way out.

This situation will not improve until the confrontational winner/loser approach both the Family Court with regard to custody and access cases, and the Child Support scheme with regard to financial support, changes. The focus of both needs to shift towards an emphasis on seeking collaborative solutions involving both parents equally (or at least to the extent they want to be) as the preferred outcome in the future of their children.

While Tom Phillips’ actions, whatever their motive, cannot be condoned and will have scarred his children, emotionally and psychologically, for the rest of their lives, they are an awful extreme reminder of what may happen when the system breaks down.

For every parent, properly looking after their children must be paramount – ranking well ahead of seeking to satisfy residual bitterness towards a former partner, or taking out frustration against state agencies for perceived inflexible and unreasonable actions.

There is no acceptable alternative to putting children first.

 

 

 

 

The government has just announced plans to strengthen New Zealand’s immigration laws to make it easier to deport residents convicted of serious criminal offences. Under current law, permanent residents of up to ten years standing who have been convicted of criminal offences can be deported after release from prison. However, the term of their deportation depends on the nature and seriousness of their offending. The government’s new plans significantly broaden the scope of the existing policy. It is planning to increase the time frame to residents of twenty years standing and also includes historic crimes, committed before the person came to New Zealand,

These announcements will likely be welcomed, especially by those concerned about community safety and the risk they consider released offenders pose to the community. As such, the announcements – reported in the media as making it easier for the government to deport non-New Zealand criminals – will play well as part of the government’s tough law and order agenda.

And it will be easy for the government to portray parties opposing the moves as “soft on crime and criminals”. With an election looming next year, and law and order always being an important issue, that will be no bad thing as far as the government is concerned. 

However, there is a certain irony in these announcements. For years, successive National-led and Labour-led governments have railed against Liberal/National coalition and now Labor Australian governments for their notorious s.501 policy. Under this policy many Australian criminals, born in New Zealand and often with the most tenuous remaining links to this country have been deported here once released from prison in Australia.

So, as it now moves to strengthen New Zealand’s deportation rules, our government will need to be very mindful of the consistent and outspoken approaches various Prime Ministers have made over the years to their Australian counterparts about the s.501 policy and potential risk of claims of hypocrisy it now raises.

Indeed, on the same day the Immigration Minister was announcing New Zealand’s proposed changes, the Prime Minister was attacking calls from Australia for the deportation to New Zealand of neo-Nazi Thomas Sewell because he was born here and holds dual Australian and New Zealand citizenship. While he is undoubtedly “a pretty awful human being” as the Prime Minister described him, Sewell has so far not been convicted of any crimes that would lead to his deportation from Australia, so he is unlikely to become a victim of the s.501 policy, and thereby New Zealand’s problem, despite more than 88,000 Australians having signed a petition calling for his deportation.

In the circumstances, the Prime Minister’s comments that Sewell is Australia’s problem were ill-timed, given his own government’s deportation announcements the same day. The risk is they will further embolden hard-line politicians on both sides of Australian politics to dig-in further against any softening of the s.501policy insofar as New Zealand is concerned. They know that, as in New Zealand, cracking down on migrants who break the law is good domestic politics.

However, it must be acknowledged that all sovereign nations – New Zealand and Australia included – have a right to protect their citizens against the risk imposed by foreign criminals and to deport those non-citizens who seriously offend to their countries of origin. The right to citizenship and residence in any country must always be conditional on acceptance and compliance with the laws of that country. The issue around deportation is therefore less about the right of countries to deport those who are not citizens who have criminally offended, than it is about the reasonableness of such actions.

In that context, there is a legitimate argument about the reasonableness of Australia deporting to New Zealand people who have not lived here since childhood and who no longer have any substantial family links here. However, in the same vein, it was only a few weeks ago that Immigration New Zealand was threatening to deport a teenage boy to India for being an overstayer, despite the fact his family was legally resident in New Zealand and he would have no means of familial or other support in India. Government officials contemplating this move and Ministers who initially supported it failed to see the hypocritical parallel until the last minute.

For this reason, many will argue that as it moves to strengthen its deportation laws New Zealand should be mindful of the reasonableness test, and not get itself into the type of s.501 mess Australia has. But there will also be more cynical voices – inside and outside government – arguing precisely the opposite, that, for domestic political reasons, having a deportation policy that is criticised externally as unreasonable and excessively xenophobic will play well for the government in election year.

With ACT and New Zealand First being the glue holding the Luxon-led coalition together, it is hard to escape the conclusion the latter view is the more likely driver of the new policy direction.