Pilot Study Interviews
12.1 Pilot Study/Applicant 1
Profile of Case
Applicant 1 is Maori, her mother is non-Maori, and she has no contact with her own father who is Maori. She identifies strongly as Maori and works for a Maori organisation. Applicant 1 was 16 at the time of the birth of her child and was not living with her partner at the time of the birth. Her partner was also Maori and his parents were very keen to have the baby. Applicant 1 applied for custody when the child was a year old due to the concerns she describes below:
…to me all they181 wanted to do was take her off me, so I didn't see them until after I had my daughter. They still tried to turn up and take her whenever they wanted, so it came down to the day when I thought I needed to go and get custody, and her father had also threatened to take her out of the country.
Involvement With Court Services and Professionals
Applicant 1 had a Maori woman lawyer, and Maori woman as Family Court Counsellor. She spoke very positively of her experiences with these women. She found the counselling helpful and felt that the counsellor was easy to relate to.
She made me feel real comfortable, like because someone is coming to your house and I was all nervous and stuff - and she was real good - like one day someone turned up at my house and she was like a friend and didn't say who she was …
Court Procedures and Setting
Applicant 1 was very nervous about attending Court, and was supported by a close friend and by her mother. She was put at her ease by being met outside the Court by her lawyer, who talked her through the process again on the way in. She was also put at ease by the judge and his relaxed attitude to the noise her baby made. The lack of opposition by her ex-partner to the application meant that the process was not as stressful as she had initially feared.
Whanau Support
Applicant 1's main sources of support were her mother who is non-Maori, and a close friend. Applicant 1 did not want her mother approached, and her friend was out of the country.
Applicant 1 found her lawyer through using the phone book, and was accompanied by her friend to the lawyer's, primarily because she had no transport herself. Both her mother and her friend attended Court with her.
Applicant's Evaluation of her Experience
Applicant 1 was satisfied with the outcome of her involvement with the Family Court. She did not find cost a barrier as she qualified for legal aid. She was positive about the Court personnel and the attitude of the judge. Her partner's parents continue to have some access to her daughter, but these arrangements have not been formalised, and Applicant 1 feels confident that she has control of the situation. Despite this satisfaction, she is not totally clear about what it means to have custody of her daughter, but she is confident that having the piece of paper means no one can take her daughter away.
I still find that though I have access or custody of her, like what does it really mean? On the piece of paper it says that A. is under your care until she is 16. In my mind I know that no one can take her off me. I feel better about that.
12.2 Pilot Study/Applicant 2
Profile of Case
Applicant 2 is in her late 40s, and is the great aunt of the child she now has guardianship of. The birth mother of the child was her 15-year-old niece and the father was a 13-year-old.182 Applicant 2 became involved with the mother and baby at the request of other whanau members.
My sister said you better come and get this girl - she is playing up, and my house isn't big enough. And I thought why me? So I asked them respectively (her siblings) and they said because you are the oldest of the whanau ... so that was OK, I was there to support them.
The mother and baby moved in with Applicant 2, who was concerned for her niece, but also concerned with the quality of care the mother was providing and the lack of bond between mother and child. Due to the age of the birth parents and their previous CYFS involvement, CYFS maintained contact with the mother and Applicant 2. Gradually the mother stayed away from home more and more, returning to a street kid lifestyle, leaving Applicant 2 to care for the child. Applicant 2 found dealing with changing staff from two different CYFS offices exhausting and confusing. There were several periods when the mother, with support of CYFS staff, removed the baby and went to stay with other whanau. A return to her previous behaviour patterns and the baby being returned to Applicant 2 followed this.
The father of the child was killed in an accident when the child was two years old. At around this time the child was placed under the guardianship of the Director-General.183 This was followed by a prolonged period of involvement with Child Youth & Family Services, with the child being in the care of Applicant 2 for much of this time. Due to a change of CYFS staff, and some conflict between Applicant 2 and her niece, the child was placed for a period of six months with a CYFS caregiver. The CYFS caregiver wrote to CYFS and said that she wished to adopt the child.
The Department woke up to that and told her you cannot have this child, this child has to go back to the whanau, and then a letter came to me. Now I wasn't aware that you had to get a lawyer to get guardianship and custody. I wasn't aware of that because I wasn't clued up on all that sort of humbug. All I was doing was following CYFS and the Family Group conferences, giving them reports.
Applicant 2 applied for guardianship and custody, and found a lawyer with the assistance of a Maori social service provider. She was very dissatisfied with continuous process delays. A period of almost two years went by from when the initial application for guardianship and custody was made, and the child was discharged from the guardianship and custody of the Director-General.184 The continuous process delays were due to miscommunication, difficulties in contacting and working with the birth mother, and changing CYFS staff.
Were they waiting for me to crack up - well I didn't. I was pretty clued up by then. When it came to my lawyer, here he was representing me, and all you get is 'don't worry about it, don't worry about it! ' A year down the track and still all I am getting are letters form lawyers saying the department is blah blah blah, they are having a meeting between themselves. For two years it was just letter after letter.
Applicant 2 was frustrated by repeated miscommunication between CYFS and the Family Court, and upset after the amount of time she had spent caring for the child to be the subject of a police check.
She was, however, impressed by the skills of the male psychologist who observed the child and birth mother at Applicant 2's home on two occasions. She felt his report was fair, and that he was sensitive and responsive to her concerns, explaining the process in a way she could understand.
Involvement with Court Services and Professionals
Applicant 2 had experience of her own counsel, a specialist report writer and of appearing in the court when guardianship and custody were transferred from the Director-General to her. As noted above, she was very positive about the specialist report writer's ability to establish rapport with the child. She had initial misgivings about having someone in her home, and was also unsure about how a child would be 'interviewed'. She felt that the report writer took time with her, and also offered further avenues for support that she could access if required. She was less positive about the lawyer, and felt that she was not kept adequately informed.
She repeated her concerns about being told 'don't worry', as she felt that she had a lot to worry about in the process, and that her concerns were being minimised. Due to her negative experiences with CYFS, Applicant 2 kept detailed records in a diary, and had two full clear-files of correspondence. She had little recall of the actual court appearance, as this was the culmination of months of stress, and had no comment to make about this. The issue of cost was of minimal concern to her in terms of the actual court proceedings, but she was angry about the number of times that the child and mother were placed in her care without adequate discussion or consideration of the financial burden this imposed. She felt this meant that 'the department' was depending on whanau and that her financial entitlements were not explained to her.
She was particularly concerned with the poor communication between CYFS staff, herself and counsel. A key concern was that for a large part of the time, because she was neither a parent nor grandparent, her concerns and issues were disregarded until/unless things reached a point of crisis that resulted in a Family Group Conference. She also believed that some staff she had worked with understood little about whanau dynamics, and had an idealised view of whanau relationships in trying to get her to be responsible for both the mother and the baby.
Whanau Support
Applicant 2 received her primary support from her mother and brother. Both are now deceased, her mother passing away a few months after guardianship and custody was awarded. Despite her love and commitment to the child, Applicant 2 conceded that without their support she might have given up. She was particularly grieved that her mother did not get to see the child reach school age and grow settled. She did not consider that there was anyone in the whanau that she could have spoken to about her experiences, as others in the whanau did not know all the details of the case.
Other Issues
Applicant 2 was angry that CYFS had not been responsive to her concerns about the two other children that her niece had given birth to. She believed that 'the department' ignored the rights of the children and when she expressed concerns, she was placed under pressure to take the other babies and to keep track of her niece. Subsequently, one of these babies has died. Efforts are now being made to place the third child under the guardianship of the Director-General. The mother had access to the child which she could initiate, but only visited the child on two occasions. The child is now seven years old.
12.3 Pilot Study/Respondent 1
Profile of Case
Respondent 1 was the respondent to a protection order for repeated physical violence. He has also been imprisoned in relation to this violence and other offences. Respondent 1 has also suffered a serious head injury, and had some difficulty in remaining calm and focused during the interview, although he wanted to take part in the process. He and his ex-partner had two children, both of whom are under five years old. Respondent 1 now has a new partner, and accepts that his actions were what resulted in his loss of custody of his children.
… I mean it all stems from my actions anyway, or our actions. But I mean ultimately in the end my actions. I bought into it ... if I was wiser perhaps I might have been able to save that.
He was also clear that he and his ex-partner continued to share responsibility for the welfare of the children.
Because we both believe in our children and in the family. Besides me and her not being able to get it together, what we wanted together, we got to do something. Like she didn't want the children just on her own, but they should be with me or her ... our kids don't want to see us fighting and bickering and you know and kicking things in and fighting over them and all that …
Respondent 1 was unclear about the meaning of the terms custody and guardianship and was concerned that it made the children sound like objects to be owned. He has access to his children with the consent of his partner. 185
Involvement with Court Services and Professionals
Respondent 1 has had considerable experience of court services and professionals. Due to his involvement with both the family and criminal courts due to domestic violence and other offences, he was not totally clear about which services or professionals were engaged directly in relation to custody and access issues.
Respondent 1 attended an anger management programme while in prison. He was also directed to a stopping violence programme as a result of the protection order, a programme he described as being full of 'angry men, and like you know, so desperate'. Respondent 1 was also evaluated by a neuro-psychologist prior to sentencing in the criminal court, and he believed the judge might have taken this into account as he mentioned it at sentencing. Respondent 1 was unclear about how he had gained legal representation, and it appeared from the way he described the range of court proceedings that he had been involved in, that he pleaded guilty to the criminal charges, and did not contest his ex-partner having custody of the children.
Whanau Support
Respondent 1 was unwilling to discuss issues of whanau support, although he did say his father 'might have been involved'. He became agitated around this time in the interview, so the interviewer broke the interview for a cup of tea and to ascertain whether he wished to continue. The interviewer did not consider it appropriate to probe further regarding whanau support when the interview recommenced.
Respondent's Evaluation of Experiences
Respondent 1 acknowledged that his actions in assaulting his ex-partner were wrong, and felt that the loss of custody of his children was part of the process of being punished for his actions.
Yeah well, it was like my punishment as a whole. You had to go through the court system and everything and the law to pay for your crime or whatever.
He described himself however, as being 'psyched out' when he realised the implications of losing contact with his children through imprisonment, and feared that he could lose access to them. During this period he was placed on quarter-hour checks because he was considered a suicide risk.
It appears that he and his ex-partner have reached agreement over access arrangements, and he described going over and sleeping on a stretcher, doing dishes and caring for the children to give her a break.
12.4 Pilot Study/Respondent 2
Profile of Case
Respondent 2 has two children who are now in their early teens. His ex-partner is non-Maori. He was subject to a non-molestation order prior to the Domestic Violence Act 1995 being passed. His ex-partner has been treated for both head injury and mental health problems. 186 He strongly contests the descriptions of events that he believes lead to him losing custody of his children, and believes that the extent of his ex-partner's health problems was hidden by her family and from the Court. Although Respondent 2 has court-ordered access, his ex-partner has denied this access on more than one occasion. The most difficult experience Respondent 2 had in relation to this was at the death of his mother.
I said, look, can I pick the children up and take them to mother's funeral? No, no they're busy, or one is sick. She is always making up stories. I knew they weren't sick or anything like that. And that was really .. because being Maori - Mum loved these children, and I just felt Jesus this is a shame… They were forbidden. It shouldn't be.
He described the feeling of loss his mother experienced prior to her death, due to the limitations placed on access. He is also greatly grieved by the lack of contact his children have with their wider whanau due to the limitations imposed by the loss of custody, and by denial of access. H e has enrolled his children on their iwi roll.
I did that behind her back you know. I did it for my own self and said - hey these are my children. When they grow up they can go either way, but they can still be Maori you know. She will never change that, because they are Maori… they'll find their own whanau and iwi later on.
Involvement with Court Services and Professionals
Respondent 2 had little direct involvement with court services or professionals. He made no appearance in the Family Court.
I just signed papers. I just signed them. A lawyer said that's what you sign. It was her lawyer; I never had a lawyer. I just thought oh well, I'm out of here. You can't fight the system. No use me going to a lawyer because then I am going Pakeha style, and then you make them money.
Respondent 2 was not entitled to legal aid due to high earnings as a fisherman. He felt that his ethnicity and occupation would count against him in court, and that a Pakeha woman's word would be seen as more believable to a judge. At the time he was unclear of what the consequences of not having his own legal representation and just signing papers could be. He now greatly regrets this, and stated that if he could do it all over again he would go to a Maori lawyer. He believes that a Maori lawyer would both understand his concerns and experiences, and be able to explain the legal system and jargon to him in a way that he could understand.
I would never go to a Pakeha lawyer because they would not understand our people. I would sooner go to a Maori lawyer and just say hey let's get back to our whakapapa. Starting from there we can work our way through the system. But explain the situation...
Respondent 2 spoke at length about his concerns that other Maori would not have the same kind of experience he had of the court process and that his participation in the research should be of value in preventing this happening. He expressed his concerns as follows:
Come to this era now and say don't let it happen again. If there is a court judgement of family in our days let them speak to a Maori lawyer. Give them access to Maori to explain the situation… I hope what I am saying to you now is not just work and is going to be put aside. … Who is the law made for? I've lost everything. If the system had been right from the start, if we had been educated, it would have been all right.
Whanau Support
A brother of Respondent 2 was present for the interview, but made little comment, apart from supporting his version of events and his opinions. He has a niece who he describes as 'being in the justice system' whom he discusses his views with, and gets information from.
Footnotes
181 Her ex-partner's parents.
182 The parents were residents in a Department of Child Youth & Family home at the time the child was conceived.
183 Applicant 1 was confused about the sequence of events involved here.
184 Applicant 2 produced documentary evidence of this.
185 It was unclear from the interview whether the terms of the access were court ordered.
186 It should be noted that this description is based on information coming from the respondent.
