Divorce Café

What about the kids: Children and the Property (Relationships) Act 1976

June 29, 2023 Professor Mark Henaghan and Henderson Reeves Lawyers Season 1 Episode 5
Divorce Café
What about the kids: Children and the Property (Relationships) Act 1976
Show Notes Transcript

Why aren't we judging our relationship property laws by how well they protect children?  Champion of children's rights, much loved family law lecturer and family law reformer Professor Mark Henaghan gives us a master class on the laws that exist to protect children caught up in relationship property disputes, their effectiveness, and what we could be doing to improve outcomes for children.

More information about Mark

Watch the episode here.

Read the article here.

Interesting Reading:

Borrin Foundation / University of Otago research into the impact of relationship property divisions

Article from Law Foundation 2022, Adversarialism in the Family Court: ethics and practice, Dr Emily Henderson, Gemma Coutts and Professor Mark Henaghan

UN Convention on the Rights of the Child

Article about Judge Blaikie

Taina Henderson - Henderson Reeves (hendersonreeveslawyers.co.nz)

Shelley Funnell - Henderson Reeves (hendersonreeveslawyers.co.nz)

WELCOME to Divorce Café, the podcast where we demystify, detangle and (hopefully) detox the legal processes that follow a separation, with the EXPERTS in the relationship property world.  

On the home team: 

I’m Shelley Funnell

And I’m Taina Henderson.

To today’s topic!  One of the heart-breaking things about an adult relationship break up is that the adults aren’t the only ones to get hurt.  Despite that, in the context of a relationship property dispute, the adults have all the rights: only the adults have a right to be heard, the right to make claims, and in most cases the adults are the only ones with lawyers.  

Lawyers and judges are quick to say that the parents are there standing up for their children.  But is that enough?  

Why aren’t we judging our relationship property laws by how well they protect our most vulnerable members – children?

Here to discuss the problem (and the solution) is much published family law academic, much loved lecturer and critic Professor Mark Henaghan.  

Mark Henaghan received his LLB (Hons) from the University of Otago, where he was the Dean of the Faculty of Law for 19 years. He is currently a Professor of Law at the University of Auckland.  He is a prolific author and a Fellow or Associate Fellow of numerous Royal societies and international academies of Family law.

We have had a sneak preview of a chapter he is finalising about children and property for a UK publication and it’s got us excited.  

We asked today’s guest on to talk about what the law would look like if WE REALLY MEANT what we said about children’s needs being important.

Here to tell us that, and why we should be worrying about it…Professor Mark Henaghan, welcome to Divorce Café!

Thank you Taina and its lovely to be here with two fine lawyers 

Because, just to start off, I was involved in a major study sponsored by the Boron Foundation who do great sponsoring with the Children’s Issue Centre in University of Otago and the massive survey of people who have been through Relationship Property and in the area involving children, very common themes came through that children’s lives changed if they didn’t get a decent deal in property they had to move areas, they had to live in different places and sometimes had to rent and it changed the children’s whole perception of life you know 

And not in a good way 

For the children, going home to your home and having basically your friends around and your community, it makes such a difference. They love their little area, we all love our areas, they feel like they have done something wrong or something’s happened to them and it changes so much and children can form new friendships but it’s quite tough at certain stages of life

And having to do it at the point where they have already experienced a major trauma and I have the same personal experience. 

But before we get into the guts of what you’re talking about, we always in our first segment we like to have our guest pick a random question from the bucket 

Some of them are sensible questions and some of them are made up by Shelley, 

If you could be any TV or Movie Character for real, who would you be? 

I think I would be Rumpole of the Bailey, do you remember that programme? 

No. 

We’ve got the book at home! 

Rumpole of the Bailey was a beautiful TV series about an old criminal defence lawyer and he did some family stuff too written by John Mortimer and he was a famous, he was a lawyer as well but the wonderful thing that Rumpole always said and I think he summed up the whole of Legal practice in one word he would always say “there but for the grace of God go I” with whatever his clients were [going through] ... and he just had the ability to see and he has these English Judges who didn’t listen and he had to put up with that and he was far cleverer, far quicker, it just inspired me. I always loved Rumpole of the Bailey so I always thought of it. 

Alright! 

Ok so, the next segment we call the basics, which is where everyone can be brought up to speed with the topic at issue.  

This isn’t a small question Mark, but can you please draw a picture for us of what is at stake here? 

 So can you explain:

What do we know about how children fare after their parents separate? And I know you were just talking about that study and how children feel. 

Sure, children do well if parents communicate in a civilised way and the environment doesn’t change too much and they are able to see both parents together doing things and to cooperate for them, all those things make a difference for them, in other words the normality of their life doesn’t change too much.  Their parents still talk to each other, they don’t argue in front of the children and they remain in really stable and secure environment because, particularly children with so much going on, when you’re growing up you need securities. The fundamental need of all of us, love and security. If you have got the love of both parents and the security you can do it. 

Security of a home and finances 

Real security there, so you know where you are and your environment is the most important thing, I mean, often children haven’t travelled the world or anything, so for them that neighbourhood, that school is everything. It’s the whole world, so if you can keep those things secure, and keep the parents talking ... but as we know that doesn’t always happen and that’s the ideal but when it does happen all the research shows it works but what we try to do sometimes is push people into something they are not, so sometimes it doesn’t work and then parents get into a dispute and argue over money or property and the children kind of get left. 

Or used as weapons. 

Or used as weapons or left in the background so I think we have to be very careful to try. I mean we are obligated as lawyers as a duty to promote conciliation, in fact there is a new provision coming in August to get things done you know in the conciliatory, lowest cost, it’s through the 2019 reforms. Its coming into the care of Children’s Act, speedily, lowest cost, and in a way... 

Similar to the Principals of the PRA. 

They get ignored every day but they are there and they are part of our obligation, in fact I was involved with your wonderful sister and we did a project looking at whether or not there should be a further duty on Family lawyers that even though they are required to act in the best interest of their client - because that is your obligation under Legal Ethics - they should also have an overriding duty to do nothing that will harm the best interest of children, when it goes to Court that is the overriding...

...but often in negotiations, 

But what would happen if they conflict though? 

Well I think what you have to say is that children’s interests should be, because they are paramount in the law and you would say to your clients ‘Look I know you want this but I have this duty’ and at that point it stops but lawyers are encouraged to do things that they know aren’t going to do good for the children.  They are encouraged to go ahead with it anyway and there are lawyers, that - like your wonderful sister interviewed, that Emily interviewed, said “I hate doing that” and they said “I hate it when other lawyers do that” you know, we actually, most family lawyers don’t want to do that.  They don’t want to push a line and they try to encourage a client and say ‘this is not the right way to go and try to give them a wider view of what will be better for everyone in the long run.  Let’s fire off a nasty affidavit and try to do this and that and those sorts of things that have ripple effects and often they break up the conversation and it falls apart.  

There are always some lawyers that will do that in every town and they get to be known:   “I’m going to go to that lawyer” sock ‘em and if we have that duty which would stop that sort of behaviour one would hope, there would still be people that would try it on but at least we would know that is what we are there for.

And by personal experience what is good for the children is often good for the adults, they just can’t see it at that point in time when they are locked in combat.

I always say to them at the end of the day, “your children are around for the whole of your life and you want to as you get older...

You want a relationship.” 

I have had many students who come to me and they say “One parent wouldn’t pay any money for me and we had to move house and they never really get over that you know.” And even though it’s a parent they want to love they have that block in that respect, so I always say to them in the end of the day and I know this as a grandparent as you get older, the love of your children, you love them but them loving you gets quite important because as you get older they become your whole world really.  Like you know I have moved from Dunedin to up here to be with my children and grandchildren.  So I think it is that sort of thing that people don’t see at that moment.

Yes, like how do you shift that perception? 

But they are moving onto something else, to have a better life and I can understand it when they are young they think I can have a better life and I’ve got a new partner I want to get on with my life and children don’t sort of matter so much.  But they do, and they notice it, they notice when they are put second.

And they hold it, they hold it inside them.

And they remember it for the rest of their life you know and I think it’s just the saddest thing because the greatest joy in life is for the love between a parent and a child and there’s no need for the system ...the system should be doing everything possible to keep that going. 

Yeah, it doesn’t need to be an ‘either or’, it can be an ‘and and’.   How do you recognise what the parties should each come out of this, what share they should have, and the fact that they got together in the first place? 

Let me give you a classic example, with two parents who actually cared deeply about their children.  I was helping in a mediation, they cared very deeply and so they actually did alternative nights in the home so the children stayed in the home for 3 years they would pop in and pop out pop in pop out and that is actually pretty exhausting.  They then started arguing about Relationship Property and the difference between $750,000 and the mother needed property - about $900,000 to buy an equivalent house.  They were arguing over this, a couple hundred thousand difference.  And I said to them, her at lunch time ‘What...?’, and she said “I just need that much so that I have an equivalent house to what the father has so that the children are going between”.  He heard this, he just automatically said “$950K no problem”, because their focus...once it got away from where they were arguing over money to ‘what’s best for the kids’, you don’t want the children living in one house for half the week and going to another house that’s not very good. 

Why don’t you read, so we did an Episode with Tony Lendrum[1]... 

Yes, I know Tony well.

So do I, he mediated my mediation as well.

He is a very smooth operator. 

We got to the end anyway and we were a little short on time because of Auckland traffic and those sorts of things and flights so we missed one question which was a good lead into yours and he kindly emailed the response later on and I thought it might be a good one to put to you and hear what you think? 

Sure, 

So the question was;

Do you ever want to bring the children’s wishes to the mediation table? Have you ever? How would you achieve that?   

So his answer was: 

“While I never want to do anything in a mediation that might upset the parties, I do, and regularly, in my opening or theirs, ask them briefly about their children. I then suggest that a huge benefit of them settling the matter today will be that their children will know that “they have settled their fight or war” - the last phrase being one more likely to be used by children of separated parents.

There are two further steps to this which I may, or may not, use.

The first is to ask the parents to imagine that their children are, for the day’s purposes, all between 14-16 years old and that they will be listening closely to what their parents say to each other, and more importantly, how they say it over the course of the day.”

Mark: Hm, good.

“The second step is where the parties have a female child. In that case I may remind them that there is no human on the planet that has a more [Shelley: and I can really testify to this] that has a more heightened and proper sense of fairness than a young woman between 13 and 18 years. [Shelley: I have a couple of them so yeah I definitely agree] If she perceives that one or other parent has not been treated fairly then there are likely to be consequences for the parent she sees as acting unfairly.”

[Shelley: So obviously you guys are on the same page about that.]

“This may seem to some to be a little theatrical but I have found over the years that parents listen very carefully to any comment a mediator may make about their children. Indeed, I receive, very commonly, within the mediation or afterwards, thanks from the parties for raising their needs in this way.”

And I can testify to that 

Yes, it makes all the difference. I think its fundamental. There are some mediators here in Auckland who do involve the children but not directly in the thing. They may talk to them before hand to get an overview sort of to talk to them directly and I think that is very very helpful.

There was a study done in Australia where an Australian Academic and she also does mediations, talks to the children before hand and the parents knew before the mediations what the children thought about things and she believed strongly that the mediations were much more effective, I did ask and she sort of said we have great success because I never believe, because as you know as family lawyers there are always cases that are just, something always goes off the rails and it’s very hard to get back on again.  

She did say these were people who did want to settle anyway and you get these people who are who just don’t want to for some reason it’s hard to explain, there’s all sorts of things going on in people’s lives and those are ones that are much harder to get over the line.  But those who want to when they hear what their children think, they automatically just look at things differently as Tony said, so I think it does work because at the end of the day, you have got to go back and face the children.  If you’ve left one parent in a poor neighbourhood and having to move, and you say well this is what happened.  How could the other party do that to its mother or father? 

Another mediator, another very famous mediator was Judge Blaikie[2] in Dunedin, Family Court, which was about the size of this table, so he avoided having any hearings and all the walls were painted red and he had a lot of mediations and it actually worked very - he always started by getting them to say something nice about the other party.  That’s important because no matter how much they’re in conflict they obviously saw good things about each other at a certain point, just remind them there are good qualities there, we’ve all got bad qualities, but the good qualities just remind you yes this is the person who I can...

Yes, and Tony was quite effective because he also got us to say good things but in relation to the children at the beginning as well, so talking about how important the other person’s role was as a parent allows that to be spoken at the mediation and that’s when you say ok that is important as a parent, to me. 

It’s fundamental, and of course as a parent, one of your obligations is the development of your children’s brain and if they are going through stress they just can’t do it.   I coached a lot of junior sports and you knew when things weren’t going so well at home and the kids just behaved really badly, not like normal and you knew straight away that there was something going on.  Children are very perceptive, they pick it up instantly.

Like a sponge. 

And they have to, because for survival your parents are your... and if something is not right, it must...they have nightmares and all sorts of things go on and we’ve got to avoid that. 

So if you know that there is something you can do to affect that, then you can act on it and why wouldn’t you? 

I think reminding parents of that is important because I think most parents - you get some people just focused on revenge or getting back at the other party that they don’t want to think about those things - and some parents haven’t really done as much parenting.  But the joy of it once you, because parent’s pick it up... if you are there for children they will give you so much more back than you can ever give to them.  But they also know the people who just pat them on the head and don’t show any interest and do very quickly. 

And if they can look forward to the day - so what happened with my kids is a couple of years on we were communicating really well, we’d settled really well at the point and the kids would say ‘I’m so happy that you guys parent together, thank you mum, that has made my life so much better.  I love the fact that you and dad are talking’.  Even when we were developing... 

...not talking so well... 

Well, we were talking and when it was to do a punishment, we would always decide together what would be the consequences of bad behaviour they still actually preferred that because we were working together. 

And that’s stability right. 

And that meant they were safe. 

And that’s the most important thing, in fact on just a recent, something I was helping out, and the little boy quite young said, we are having some contact with Dad.  But he said “I want to see, be with you and mum, you and dad together sometimes” and the dad didn’t want that at that stage.  And couldn’t see that for the child to be seen together for that extra sense of safety - and it’s pretty harmless if you’re at a park and both of you are there, it’s not the end of the world - but it’s those little things that build up to that idea that ‘they are still my parents, they still talk to each other I’m alright’. 

The world is OK 

The saddest thing I ever saw - they used it in the Family Court and I don’t know why they advertised it in the Family Court - and it was a real little boy and he came on and he said “When dad drops me off from contact he drops me off at the end of the street and I have to walk up because he won’t drop me off at mum’s” and he just started crying.  And I cry every time I think about it - it’s such a small gesture if he had just come up to the door and handed his bag, ‘how are you, is everything alright?’, it would make all the difference to this boy

Someone saying your mum is OK. 

But you know it’s like he’s the one who is suffering, he’s being punished, it’s those little thing as parents we have to realise make all the difference.  No matter what your feelings are, you have to put them to one side.  We always have to do that in all aspects of life, for this boy she’s still his mother, you may have concerns about them, he’s still his father, it makes all the difference in the world to children.  The other stuff you keep right out of their way if you can get that, it makes all the difference.

I agree, I totally agree. 

Alright so the next section of the podcast is stuff we find interesting for want of a better name, but yeah these are some of the questions we have that we would love to put before you. 

So the first one, the relevant one is;

What law currently exists to prioritise children’s interests in a relationship property context?

Yeah, well the law is pretty clear, it’s just amazing how it’s not operated. Section 26 as you well know ‘the Court shall, I’m sorry, must must have regard to the interest of children in terms of when they are making a Relationship Property division in Court Hearing and do what they think is just’. Unfortunately it’s hardly ever argued, hardly ever and the judge should ask, I must have regard but that doesn’t seem to happen so 

I’ve never had anybody write to me and say ‘Oh I’m going to do you - I’m going to go for an order under Section 26. I’m going to get the family home settled on the children’, no one has ever threatened me with that, they have threatened me with occupation rent and you know post separation [contributions]...       

Yeah, sure but even the judge should have some requirement for it, must have regard to the interest of children but it’s because I think the section has been interpreted very narrowly by Judges - if children have got special needs or something, they call it an exceptional case where a child might need...it’s meant to be considered in every case. 

Something that can outweigh the important-ness of adults. 

Of adults, yes that right, because the concern they have - and the Law Society have the same concerns when we put the submission in - because the Law Commission think the section should be strengthened which I agree with, said oh well it’s just between adults and people will game it.  What a very cynical way to look at it, they will game it to try to get more for themselves? 

The kids could end up winning ... damn. 

And then they have said parents will argue more because of it.  No, it will remind them that the children’s... this property thing has outcomes for children and we need to consider what impacts it’s going to have on them.  You know, you can give some property to them, it just reminds you of the things we have just been talking about - so what’s the problem?  And they have this principal - how you describe someone I’ll get you to do that as wonderful this idea - that we must have a clean break and get on with our lives.  But you never have a clean break from your children.

That’s true. 

Thankfully.

Well you wouldn’t want to.

No.

And just back to Section 26, Section 26 actually has that second part which allows the Court to make an order 

It can, for the children. 

In favour of children. 

Settle property for the children, say look you have this property basically and I think that’s really, really important because there may be situations where, well in every situation it should be considered I believe because it says ‘must have regard to’, in other words how do we know they’ve had regard to it when it’s never mentioned? You can’t, its mandatory, it’s called a mandatory consideration which is totally ignored and I’d say in 98, 99%  of cases

And an order, it’s a tool that isn’t picked up and it feels to me like Section 15 about the division of functions, unequal sharing, it feels like Section 182 the busting into Trusts. 

This is even more so.

Yeah why don’t we, yeah.

It should be used more, and then the other section which says ‘have particular regard’ (which means, particular means slightly higher than the other interest) with regard to occupation of the home and children need to be in the home and again it’s just one thing we have to take...it’s a poor discretion,  

It’s actually fundamental. 

It is a discretion but it is a discretion that gives and they always give weight to the selling the property. Basically if its particular regard to the interest of children other interests can be taken into account but these seem to trump it so the particular regard doesn’t get applied.

So that is section 27, which is that Section... 

...and 28A. 

Yeah, the section that you apply under to say ‘I would like the ability to stay on in the house despite the fact that it’s jointly owned’.  s28A which you were talking about there...

Yes, and that was put in to make it as often the houses were sold people had to move on. Parliament said let’s put a stronger provision in but it hasn’t made a lot of difference and there are a few examples, which we will discuss, where judges do take it seriously because again it comes back to children’s fundamental right – UN Convention right - of security and the house is their secure base.  All of us, look at all the people sadly who have been made homeless with the floods.  It’s a terrible thing when you have been pushed out of your home and for children they have no control over it.

It’s some life-time consequences. 

Ok, so we have also got United Nations Conventions on the Rights of Children.

Which we have signed up to. 

Yes, so tell us just briefly... 

Well we don’t do particularly well on those because taking into account children’s views often doesn’t happen the way it should. 

Article 12...

Ensuring children have economic security and all the rest of it, overriding interests - the best interest of children is the primary consideration, even when it’s in the Act they aren’t taken account of.  So I am involved in with the Children’s Rights Alliance and we put submissions, people have been over to the UN and we put submissions in - and Aoteroa should be a leader in this but we are still not doing what we say we should be doing.  And I think a lot of it’s to do with an entrenched way that the profession/judiciary see it, that it’s done a certain way, because you hear from adults and when it’s about money it’s an adult issue, it’s nothing to do with children and you kind of segregate these things but you should at least consider them.  That in itself changes the whole nature of the proceeding. 

Or it should. 

And it makes it more easy to then access, if they don’t give you property, use Section 28 to give you occupation - in other words it just opens up a way of thinking and a mind-set to kind of say ‘how is this property settlement division going to affect the children?’  The same provisions are in the UK cases and again if you look at the cases... 

Well that’s the next question; 

What examples have you seen of children’s interests being given any primacy in relationship property proceedings? 

Well its very rare Section 26 - has only been used in cases involving someone with a major disability whose needs - some special needs - are absolutely exceptional.  Where the Act doesn’t say that, it says it’s a general principal that should be considered.   I’ve seen some brave decisions and good decisions with regard to occupation orders, some Judges I know Judge Jude Johnson for example said these children need a stable home, Judge Walker must give her credit for that. She also looked at children’s rights for security and said we have got to give them a bit more time in the home and I think - those things make a difference.  But they are the exception - and doing this chat you find 2 or 3 you know...most are six months...

So mostly the property continues to be owned jointly until the children have left home for example. 

Yeah and I understand there are economic needs and things but in some cases, even when the other party has got plenty of money to do things and if you put your children home, like the couple that I talked about for 3 three years they just came in and out of the home and that was fantastic, but not everyone can afford that so there are some situations where it gets a bit tough.  And that’s where I think and that’s where I think the public aspects of family law should come in saying well what can we do for people because we don’t want them to disrupt these children.  It’s a bit like being disrupted by the floods - we are actually ... MBIE is giving people places to live because of the floods, but we don’t care about children that have to move here and move there which is equally as bad. 

So you are saying - should there be government funding? 

Yeah for those who have less resources, those with resources have plenty of options, like many things in life.

Hmm you’ve got two houses, 

Several holiday homes and houses and the children don’t have to move in the circumstances, but in many others they do, so some support for that would make a big difference to so many children’s lives because it’s a major issue for children. 

So that answer brings us to the story part of the section. 

I love the story part. 

We love a good case (it’s the best part of lawyering at law school) one that I read after seeing it in your chapter was Lawrence v Baker [2013] NZHC2378 and I will run us through very quickly on that one and then I would love to hear your thoughts on it.

The parties were separated in 2008, after a 14-year relationship. They had two children who at the time of the FC hearing in 2012 were 14 and 17.

Mr Lawrence went on to marry again so it was, what are we, 8 years after separation that it gets to the Family Court, sorry 4 years. Mr Lawrence moved to Singapore and he had another baby with a new partner. He then applied to the Court and said: I would like my money out of the family home please.

Ms Baker (not her real name) hadn’t worked during the relationship, she had cared for the children, she had remained in the family home after separation, kept caring for the children who stayed at their local school. 

When Mr Lawrence applied for that order of sale she asked the Court to give her the right to stay in the home with the children until they finished High school and in the Family Court Judge Burns granted Ms Baker an occupation order.

Congratulations to David Burns well done.

Yes, he is awesome, like him very much - so he looked at that section 28A and said, well he didn’t just look at it, he swallowed it and its part of his being I think, that his job as a judge is to balance up everybody’s interest but not to subsume the children’s ones. The children’s ones are right up there.  So he had a creative solution that involved selling some other property in Australia.  Unfortunately there are a couple of little things that went the wrong way, a couple of little mistakes that enabled the High Court Judge to overturn the order that he made which gave the mum and the children the right to stay in the home until the kids had pretty much finished High School, which meant an 8½ year occupation, which the High Court Judge, when it got to the High Court, Mr Lawrence appealed it to the High Court, said that was unprecedented he hadn’t seen such a long occupation order.  And he overturned that order and shortened the right of occupation.  And his reasoning was, after pointing out that an occupation order, in granting or considering an occupation order the judge has a discretion, but that the interests of any minor or dependent children being housed should be a consideration, he then goes on to say while the accommodation needs of minor or dependent children must always be taken into account these should be balanced against all other relevant considerations in the particular case, including the desirability of providing the parties with a clean break in their financial affairs so that they can re-establish themselves. 

So my question for you, how do you fight this mythical Clean Break Principal when it doesn’t appear anywhere in the Law?

It’s not there. 

Except perhaps on the walls, the toilet walls in the Northern Club? You know what are your thoughts on reading that case? 

Well I am dead against it. It affects lots of things in relationship property because children are there for your life, so you can’t ‘clean break’ from children and children are affected by property decisions so a clean break is a total disadvantage to them.  And it also disadvantages the party who has less resources because a clean break for them means, even the Law Commission recommended the FISA payments, so they are saying ‘clean break’ you know, I managed to convince them over how many meetings that this is not in the legislation and even then the High Court is saying must be balanced - ‘must have particular regard’, didn’t say these interests are all equal.  When you have ‘particular regard’ to this it has to be pretty weighty.  Now we have a person here who has plenty of resources, doesn’t need the money and who can afford to let them stay in there a bit longer which makes... 

Yes, he had a significant income the Court said and she hadn’t worked during the relationship and there was separate property that he had.

So selling the house wasn’t going to help her at all, because she will have to move as it was probably in a pretty good area if he has a significant income so they are going to have to move somewhere else. 

And that was one of the points the High Court Judge said that the Family Court Judge had assumed that they wife, that Ms... the mother wouldn’t be able to afford to buy again in the same neighbourhood and he said that there was no evidence led of that... 

Well you can take judicial notice of things!  It’s pretty obvious in Auckland if you sell a house and you haven’t got an income, you’ve got half the amount, the average price is over a million. So $500,000 dollars you would be lucky to get anything, you would have to move so far out of Auckland to get a house. 

And then what happens with schooling? What happens to the... 

Exactly, it kills everything for the child, and that’s what came through in our study.  And people are very frustrated by that and I think this is why it’s important to do these podcasts to remind people that the price is paid for by the children, the judge goes away, does a balance of consideration, ‘I had a discretion, I took it into account but I ignored it and then I took this into account’ and away they go and I’m sure that the father had a powerful lawyer, he has got a new relationship, he wants his money out, but I don’t know, what do you say to his children?  You say well obviously his money is more important that our wellbeing sadly, that’s what you would have to say, because at the end of the day you don’t need it, you know?  I mean hopefully most parents leave a lot of their money to their children but better to give to them while they are alive as well, you know. 

And young, when they need it. 

Exactly when they need it.  Because being in that neighbourhood is so crucial.   I just think that is so lucky and when parents are together and can move around even that can be stressful but when parents aren’t together it can be much harder, unless they are moving to an area where they have a lot of family around - other things around - but when that doesn’t happen... but the whole thing it’s really difficult.  Families do move and its quite common but unfortunately one of the longitudinal studies done through Dunedin in 1972 they found that surprisingly that many children move a lot more then we think and a lot of it may be because of these sort of situations it does have consequences for children. 

Ok so 

What would a system that prioritised children’s needs look like? What would be better than what we have now? 

Well I think the Law Commission has done a pretty good job and I was there when they released their report with the wonderful Andrew Becroft to who was Commissioner for Children at the time, he was cheering very, very happily.

So when was that Report? 

That report came out the Law Commission report about 2020.

That was the one that talked about changes the FISA and those sorts of things that you made a submission on.

There were many many many pages, that report. 

On this one they wanted a lawyer to be appointed for children in these cases as without a lawyer there to put the argument you don’t hear it,because parties don’t put it, so that’s a procedural thing that will make a big difference.  So you find out what their circumstances are for the children you find out how important it is for the children, all those sort of things, it gets before the Court which will change the landscape on it.

Because there is a lot at stake once you are Court right, there are cost awards in Family Court cases and I wondered weather a cost sanction for over-litigating or for too aggressively litigating or for not putting the children’s interest… 

I agree that’s a good idea. 

Or doing something that’s like manifestly unjust. 

That’s a really good idea, what was really surprising was that the New Zealand Law Society opposed the Law Commission’s proposal saying it will just make them fight more.  It’s about their children if they are going to fight about something...or people will game it?  Well I don’t think people necessarily game it because it’s rather obvious when someone has a lesser income and can’t afford a house it’s pretty obvious. 

And the people that would game it are probably gaming it anyway, but there wouldn’t be so many.

They game it the other way by saying I need this money right now when they don’t actually need it. 

Perhaps we wait to see how bad the problem is and then we try to fix it once that problem comes up. 

And maybe it’s about showing lawyers that it’s an option to dust off and become the new you know the new Vanessa Bruton or the new Lady Deb Chambers and use these sections and actually knock over some tables. 

I think that’s right; I think when it comes to relationship property people assume that the children - that it doesn’t matter for the children, but it’s all connected, finances and money are important for children for their life 

What about bringing back - I remember in the olden days when I was first admitted you used to get 6 hours free Marriage Guidance counselling.

That was the greatest thing out, I think we, I was there, I think it was Judith Collins that took it over who was the Minister?  I can’t remember who the Minister was, he’s gone, he’s chair of Radio NZ no Television NZ, he gave this talk at Otago, I went down there and said you must be joking, he said these matters are purely private, well leave it totally to these people to do it, we will take all the money out and they will have to pay for it...  

It’s not private because every child that doesn’t get the things they deserve we, all the public, effect. I see Family Law as actually about 95% public.  Oranga Tamariki is public but mostly all of it has a public impact so we should consider it that way. 

And they took It out because those people made a big difference for a number of things.  I talked to my Post Graduate class, they met individually with people, they were very senior councillors and then they thought maybe this person isn’t ready to be in the same room together.  These days they fire people in and you have to go along - that’s why people don’t turn up to a dispute resolution - you don’t know people.  If someone has interviewed you, you get to know them: ‘I trust this person I don’t mind being in a room with them and partner’ or ‘no I’m not ready yet’ and sometimes it would go on for 12 and it made people feel welcome and understood by the system.   

One of my most cynical colleagues at Otago went through it, he couldn’t speak highly enough of it when he had to go through that situation - but that filtering process is so important, people were anxious. They were all middle-aged woman, I know many of them, who were very experienced and just had that ability to reach...“look can you come have a chat with me and we can see what we can do”.  Meet one person and you are fine... saying go to a dispute resolution with someone you don’t know with this other person - that’s too cold for most people, and they are not ready 

And we have prepared them for it.

What about, so we have got FDR so Family Dispute Resolution, what if we funded that better or even when I was writing my notes for this what if we had top lawyers and mediators working on a roster pro-bono to step in as mediators? 

That did happen, I mean Principal Family Court Judge Peter Boshier years ago interviewed that sort of early intervention process and it was mainly senior lawyers who sat down with both parties with their lawyers and worked it out and it was quite successful.  He got a bit if a wrap over the knuckles from the government because he used some money that they hadn’t necessarily approved and they kind of that’s where they pulled him back on that.  But it actually worked really really well because if you have got a senior lawyer you can trust more and more Tony Lendrums out there and good lawyers there you can work things out pretty well and bring in all sorts of things without going, because once you are in a formal Court Process it just it kills it, and they all say that, very few people come out of a Court Hearing…

Well there is one upping going on all the time isn’t there? 

All the time because you have to take positions and you have to kind of push things through.  

And the less time you spend together or with someone trained like that the more entrenched your positions get. 

Of course they do. 

...and half the people don’t know the law as well. 

Well when people say something negative about you have to say something negative as well.

And you’re hurt. 

We got off the trail a bit...so I do think having more efficient processes where people can really lay it out and lawyers that do say what about your children you know in other words we need to make sure that everyone, that children are central on the table in terms of their interest and wellbeing. 

Yes, well that brings us to the next question ; Are lawyers the problem here?  What could we be doing better?

I think sometimes lawyers are the problem, not always - I think there are excellent lawyers and lawyers who are very conscious and the study[3] that I did with your sister Emily shows us some very conscientious lawyers who want to make sure that the children’s interests come out top in everything that they do.  

There are creative solutions, that’s the most important thing, how do we make this work and how do we make this work in a way that yes you are not going to be out of money but on the other hand the children are going to be, how do we rather than ‘I want this, you want that’ because underlining it all the fundamental interests must be: what’s best for our children.  And then we work a way to do it over time. 

And your family will be better for it in the end.  You will have a much… 

Absolutely, but situational things come in if a person gets a new partner that adds a pressure and all the study shows that, and suddenly your partner says ‘ why are you giving all this money to your family?  Well we are a family now’.  And that makes it really hard, because there is a stress there in that sense, so I wish people wouldn’t rush off to have new partners straight away because that creates great stress. 

No, nothing is easy in this is it? 

No, because there’s a situation and then their mates say ‘Well what are you doing? It’s your house you know mate’ or something, things get in the way.  But if we can have… I think generally family court lawyers are very focused on what’s best for everyone involved, that’s my common understanding of it I think but there is always that odd rogue that doesn’t do that and that tends to let everyone down and that pushed everything in a certain direction. 43.22.12

I think the time frames are very slow, that is frustrating for people because when they are wanting to settle something like property it just takes for ever 43.29.22 and I think that’s a good provision to put in but how are we going to get there?  Because the Courts seems to be clogged up with all sorts of ... so as you say I think that’s a good method, and that’s a good idea to get some things done.  Like, I think contact could be resolved through those sorts out things but contact, but contact is tricky because often - and it’s tricky for people - one party is happy for the other party to have contact but gradually over time and the other party wants to go to straight to 50/50 and that’s when they know  this person hasn’t had a lot of child skills it’s too much for them, so that party just says I’m losing if I don’t get 50/50. 

And you’ve got the weight of child support. 

But if you’ve got a plan. 

I reckon a plan absolutely and the child support thing. 

The child support skews things right?

‘If I get 50/50 I’ll pay less child support’ - so that has skewed things terribly because I think if a child has been with one parent mostly they need time to do it in a way that they are comfortable, rather than just saying ‘here we go’.  And they often end up with a grandmother or something doing it which is fine but it’s not quite the same and the parent, and it can be used as a way of controlling.  I’ve got 50% of the children and I’ll use it whenever I want to, this weekend I can’t do it , next weekend I can’t but the weekend after I am demanding it and that’s hard on children too its educating people that children need routine and comfort and if they are not comfortable… 

And not too much change. 

Change gradually over time and they can adjust like all of us can.  It’s those sorts of things - and I think we need to educate, I think It starts right back through the early years of school, we don’t educate people how to deal with conflict.  How not sometimes pushing your point of view…the greatest act of love is to say: ‘look it’s not the right thing for me to see the child they have got something else on you go to that’. 

Without fear. 

Without saying you have lost something you have actually done a great act of love. 

Yes, exactly you’re a great person for doing that and it’s also building trust over time.  We had that exact scenario where I mostly had the kids and then we moved over 3 years to 50/50 and it was an element of trust and when they were older they really loved it and then I got more freedom at that point.  You know it’s actually a smart solution.

But doing it straight away is a very stressful situation for children, so its educating people.

You’ve got to trust each other and be trust-worthy.  

And the research shows that! The Courts - another concept that they use that is not in the legislation “shared care” - that isn’t even in legislation.  And they kind if feel they have got to let everyone go away with something, rather than saying: ‘In the end you want to get to that, but if you do it too fast it creates tension, it creates negativity for the children and others’ - so a plan is a good idea.  And move forward.  Most research shows that each child has to adjust in their own way, some children are really resilient with these things and some children these things they are all on different scales of emotional adaptability and too much…things happening at once, having to move, and then care, that becomes an absolute nightmare.   I see too many cases where children are required to go live, to be somewhere in the weekend and they want to be with their friends or play their sports, and I would talk to them about it…

And it’s so intense with their parents. 

One couple before I left I was talking to these children were traveling 4 hours on a bus to Wanaka and then 4 hours back and they said ‘we are really tired’.  I couldn’t do that myself, even if it was someone we wanted to see.  But it was sort of to make it, it just has no thought given to that so I think because again the parties are visible we want both to go away, there is sort of a, we want both to go away with something.  Courts do that a lot but sometimes we have to say: let’s do it over time, I just think we need to work at the time of the child, the speed of the child. 

When the Courts started there was a lot of talk about the needs of children.  It all seems to have gone, we have lost that process when the Family Court was set up there were a lot of courses on it a lot there was a lot of talk.  We don’t talk about those things as much now I don’t think.  We just, this is what I do I’m a lawyer or expert for people, I just think that the educational side for what is good for children is not as deep as it could be and I think we get into routines and it’s like well shared care is normal around here and you have to do something exceptional to fall outside that.  

Well this child is unique and the wording says: this particular child, not every child in New Zealand. I remember emphasising that when it first came in but we don’t do that. I mean discretion is always risky but at least it gives you the chance to say we will adapt something for this child. Let’s understand this child.  

Well we have got some examples, and I found some examples and we should applaud those Judges and I think…but again it’s just being true to the wording and spirit of the legislation. 

It’s not as if we are making this stuff up, ‘Shall have regard to’, ‘Shall have particular regard to’:  I mean those things are very, very clear. 

Strong. 

And I think it happens in every, it’s one of the strengths and weakness of a specialised system, this is the way we do it, the legislation determines how we do it. 

I was surprised that High Court Judges are able to bring in all these other interests.  There are other interests to be considered but when its ‘particular regard’ it’s got to be pretty strong to outweigh that “particular regard” I would of thought.  But they are saying they are even.  They are not even, parliament didn’t make them even. 

Have we answered this question? 

Yeah we have maybe answered. 

Do you think Children should have lawyers in PRA cases? 

Absolutely, I think that is the Law Commission’s recommended.  And I think that will make it totally visible, and they will develop the skills to put…to use arguments, it takes a while, I mean...

Like in that example where they are travelling four hours each way, that’s where the lawyer can say, “ummm...how do they get from here to here, maybe the dad can come to Wanaka every now and again for a weekend.” 

that’s the real problem, you’ve got to have lawyers that are there, saying that’s my focus, because in the end the Court as you know likes lawyers that tell them the things they want to hear.

Doesn’t everybody? 

I know, but you’ve got to try to persuade them that they can hear these things as well without them feeling threatened by it.  Say ‘Look, this is important as well’, it’s a skill, it’s a skill to do that but it’s important because that’s how we change it.  Specialised Courts get into routines - it’s like everything, all institutions if you look at them they become self-initiating, of their own - what works for them. 

Self-Limiting. 

We get through this case and we get through this case and we do this and we do that. 

Too much energy otherwise. 

Well it is but that’s what it’s all about, when the Court started this was an opportunity.  But it happens.  Look I don’t blame the Court but it happens to every institution I’ve ever looked at, the only way to keep it honest is like what we are doing here is eternal vigilance, ‘Are we getting it right?’ because people don’t come back and do a questionnaire about it. 

We can all take responsibility as lawyers, you know as parents. 

Lecturers. 

As lecturers we can take responsibility for when we can make a difference on it. 

One of the thigs we don’t do enough of, I hear a lot of students who have been through it, one of my colleagues over in the UK, she did a study where they looked at the consequences of Judge’s decisions.  Most of the Judges didn’t want to know what they were and really were devastated when they saw what happened.  I think that’s an important study so that you know, do the research later on and say ‘how was this?’  I think enough of that evidence they would say, Jesus!

Might change that. 

Because it’s just not a thing that you have to get through and it’s a tough job... admire a Judge doing their work but I think it’s good to always be reminded of the consequences.  It’s kind of the true evaluation of whether we are getting it right or not basically.

Speaking of getting it right, so we are talking about a bit of clash of cultures here between individual property rights and children - we’re obviously here in Aoteroa New Zealand when you bring in that element and your chapter talks about it of a whole other tikanga and world view how well does the Family Court represent whānau and tamariki Māori 

Well, I think that the report that the review in 2019 showed that there is a big gap there. We have made some movements, we appointed 10 Māori Family Court Judges, we were going to appoint a few more, I haven’t seen that happen yet and I know most of them. I think that makes a difference because first of all Māori don’t feel comfortable coming to the Court because it doesn’t - a lot of the law doesn’t recognise their values and then the person sitting there doesn’t recognise…and then it’s hard because it’s a personal matter to be in a Court with someone who doesn’t recognise it. 

I think the Court is becoming much more aware of it but I don’t think that there is necessarily enough Judges and the same for Pasifika.

I mean the Rangatahi Courts work really well for the youth because it’s Māori Judges on the Marāe, works well, but if you come into a Family Court it’s not quite the same.  And I think we have to appoint more who understand tikanga well, understand Māori values because much of the time we just don’t understand it and I think people just don’t give if they don’t feel understood. 

It would be like us going to a Muslim Court and we would feel off beat you know and when you have come from a different world. I think the great strength of the Māori world is developing its own way of doing things and there is a real strength in that and I think many just sort it out their own way with their own whānau rather than do that. I think that’s a real weakness of the system because the system has been designed not with Māori in mind.  

I mean Oranga Tamariki Act is but then they are the ones that get misused by the act. 69% of children in care are Māori you know. If it wasn’t for that programme that Newsroom did, that would still be going on and now there is a bit more recognition and recent decision by Jan Doogue showed how to interpret the Act, in a way that does take into account the Māori view, because that had been glossed over.  The decision saying we can use special guardianship to whip children off parents and Judge Sharon Otene said ‘Well no. That goes against - they lose their Whakapapa if that’s the case’ and then Jan Doogue did a great decision with McHugh v McHugh [2022] NZFLR 168 where they went through all the various sections and said this is how the wording should be interpreted, very carefully, rather than just what we were doing,  I have read some of the decisions where children are removed by ex parte - it’s just an Affidavit comes in from a Social Worker saying ‘dysfunctional Whanau’ right to remove the children, its unbelievable. I mean now we are realising that even if it is a dysfunctional Whanau, and that is a pretty loaded word, we should be doing something to try make it work rather than just remove the child, but that’s a simple solution, cost effective but terrible for the Whanau. 

I think we have answered all of those questions so we can skip to our Quick-Fire Question time

Happy happy. 

So this is quick-fire as the name would suggest 10 questions with 10 seconds to answer each of them, Mark hasn’t seen these questions. 

I have not seen these questions; I am naked, naked before you. 

Ok so Shelley you can start. 

1.                   What is the best part of your job?

 

I think for me I just love students, being with the students, I see the new...I like writing and doing stuff...but I think I love the most when I see so many students coming out and doing things because at the end of the day, you write an article and maybe 2 people read it if you’re lucky but if a student comes out you know and most of them are well prepared before they get there but if they come out and they really start like you guys are doing making a difference and doing the work. I just love that you know so being in a class room with students.  My first Post Grad class, I’ve had many in the group this year. They are all from all over the place, big Family Law class. It’s just the sense of their enquiry and their openness to ideas and I just hope, it’s just like young children are like that, students when they first come to university are like that. We get cynical and we get worn down.  I’m always reminded it’s like therapy - yes this is the way the world can be! 

 

2.                   Cool, so on that note, what kids should be thinking about going to law school?

 

Well I think it’s just some people just like the idea of being able to put an argument well for someone, they like the idea of being able to look after someone else’s interests. I think some people are driven to do that. I mean others are driven by different things and I don’t judge them for that, some like the status of a lawyer - it looks like it’s the right thing to do - but it doesn’t sustain you.  You have got to have a bigger purpose beyond yourself and I think that’s why we encourage…as that will keep you coming to work in the morning if its just to walk around and look like a lawyer as that gets pretty boring after a while. 

 

And then you realise that people don’t really respect lawyers anyway! 

 

3.                   For their own mental health, should lecturers be adopting Chat GPT to communicate with their students?

 

I see today that there is a Strike which I am part of the Union and they are using Chat to reply to the HR people. It’s quite funny, you can just send messages out, but I’m not technological, I am not a technology fan and although some people have been using it to test some of the… I don’t usually set a question. I use problems so you can make individual ones up but they are quite surprised how well they come back and they are sending messages to the HR people that kind of using chat to say the message, it’s quite funny but on the other hand I wouldn’t ever use it, I had to be forced to use technology! 

I was the only person in the university using the overhead projector; they kept one just for me.  I’m worried because I read a lot about the future, with artificial intelligence we won’t be worried about any decisions, even driving out here I just put the thing on but normally you would look up a map and work it out.  I think the Aboriginal people they found water in places no one would ever find it, we are losing those sort of skills -  to think for ourselves and when the technology breaks down, like in the floods, apart from the transistor Radio there was no communication.

 I just fear that I don’t want generations because they are on Facebook, Tiktoc tells them how to think I had nothing to do with any of that stuff.

 

You are now on a podcast.

 

Well a podcast is all right. 

 

It might be on Instagram! 

 

I don’t even know what Instagram is.

 

It’s not a pre-requisite so don’t worry.

 

4.                   What was the worst “brilliant” teaching idea you ever had?

I don’t know if I have had brilliant ideas, I meant the thing I ah, I have never bought into these flip classes. The idea that you come and the students are going to know anything and you just then ask them questions because I think our role is to guide them and then they can ask questions when they have that bit of a background. 

I have a massive big Family File it just takes me weeks to mark. 

I have heard about that, your…

But they learn so much from it, but I go why do I do this it’s going to kill me, 6 weeks of sitting here reading hundreds of these and getting …but then I think at the end of it when I see all their comments of how much they have learnt from it it’s worth it. 

So it’s a combination.

Maybe you should send them out to Family Lawyers. 

I used to do that in Dunedin but the university won’t give enough money. I used to give it to people who were semi- retired and I think it was really helpful  but I think it’s both an idea students really  love but for me it’s a killer sometimes but in the end I say ‘No that’s why I am here.  If they have learnt something…’ and I get lots of Feedback, people who go into practice and say I can handle a file,  I can handle these bits, because in University we tend to just look at leading cases and look at that. Leading cases are just the smallest tip of the ice berg, there is so much going on, procedural stuff and negotiation and all those things that you do every day. You know how do you end up in Court but we just focus on the Court Case and I think that doesn’t give a feel and they also have to play a client which they really enjoy because they realise what its really like.

It’s pretty humbling to be a client. 

Well I think you learn a lot.

Yes, you learn a lot.

You learn much more because when you are the vulnerable one you see things much more clearly.  That’s the one thing about being professionals is unless you make yourself vulnerable, you don’t see everything because you are in charge, and these people just happen to reel around so I always like when I am in a vulnerable position. when I go see a Doctor or something how they treat you because it makes  a difference if they don’t explain things to  you, you go away thinking shit I’m probably going to die next week you know. 

We’re not doing very well in the 10 seconds. 

Sorry sorry sorry I thought I had 10 seconds to start 

No its brilliant.

5.                   If you were a Judge what under-used tool would you use to make a difference for children?

 

It makes it hard to answer in 10 seconds doesn’t it? 

 

Well I think some judges do do it, they try to get know the children a little bit, not that you are an expert I have to be careful but I do think, I think I would write judgements - like an English Judge did - a lot more for the children so they could read the judgements themselves to see why I decided what I did, in all cases I think because their interests are the highest so I would write it for that child for them to understand rather than writing it legally. I think its important. 

 

6.                   What is the best thing parents can do to protect their children when they separate?

 

Never ever argue in front of them. Always be pleasant to each other in front of them, that’s the most important and always show that they still care about the other parent

 

Ok we will skip ‘What should they not do?’ and go on 

 

Don’t argue. 

 

7.                   What is the best thing a lawyer can do for the children of their client?

 

I think the best thing they can do is remind them constantly how important - every decision that is made is going to have an impact on them and their children will be there for the rest of their lives.  Not in a judgemental way ‘How’s this going to go for your children?’ and obviously I do it all the time and their minds just change.  Their facial expressions - because they love their children but they get locked into...mind-sets are so important once you’ve got one mind-set you don’t see anything else and that’s the way it goes. 

 

And an opinion about the other party, which is ‘You are very greedy’ when really it’s like ‘I want a house for my children.’ 

 

8.                   Should lawyers be trying to change the law, and how would they do it?

The first lecture I spend with my students we know what’s going wrong, we have inside knowledge, we know what is going wrong that’s why it’s important what you are doing here so we have inside knowledge and understanding.  This can be done much better - we should be doing as much as we can because clients come and go. It’s a one off experience and we think ‘oh what was that?’ but we have to listen to everyone’s experience.

9.                   In the parlance of Taylor Swift, why do High Court Judges “gotta be so mean”?

 

They are not always mean, I mean some of them are former students and they are quite nice people so I think it depends.  The strength of the High Court Judge is they do focus on the law, not always, but that’s their focus.  The risk of a specialist Court is ‘this is the way we always do it’ and sometimes it gets outside what the law is.  Sometimes the High Court Judges they don’t understand the context as well as they should and miss other things so they are not perfect in anyway but one of their strengths is to check that the law is being applied in a way. 

 

They also have their own prejudices and biases, which can be a disadvantage too so no system is perfect.  

 

10.               Ok, so this is the last one of the Quick Fires that weren’t really Quick Fires; What is one thing you would fix about the Family Court system?

 

Um, one thing I have talked about and I am 50/50 on it - they have in Australia where there is a specialist Family Court of appeal.  But I don’t think that works too well but I think the system has to be more user friendly.

 

I would bring in the counselling people - I would make it...it was meant to be a Court where you came into it and you had different services that would help and provide but it’s gone back to being a Court which is important at the final stage but providing those other services, publically funded made a big difference because it kind of cushioned the blow and often cases were sorted out before.  We’re now just a Court and I think that was all taken because it was said it’s private so the public shouldn’t fund all that other stuff.  I think we should, as you said, where it works. So I think we should go back to I really think having seen it not in action for a couple of years I think it’s really made a difference and we have just lost that now I think and a Court Hearing as you all know is the last place to try and build good relationships between people. 

Ok so, Our last section is called: The Best Question Ever:

And for you Professor Mark Henaghan, that question is:

You are a teacher of young minds, a critic and law reformer, a parent and devoted grandparent.  But these are dark times.  What do you feel hopeful about?

Oh I always feel hope, I am a positive person, I always feel you have got to get up each day and having grandchildren I can’t describe how much love and hope it gives to you. I spend most weekends seeing my grandchildren and ah one is 3 nearly 4 the other one is 6 nearly 7 and there is a wee one nearly 3 months old.  You just look at them and the positive view of life they have and we have got to be careful that we don’t put our own problems... they just see, like my wee granddaughter used to ask ‘Why is Putin doing what he is doing?’  She worries about that and I was trying to explain to her and my wife is from Vietnam and has been through 3 wars and she is very interested and she gets worried about it and the wee fella he loves books about monsters but he has nightmares.  But it’s the glint in their eye and the positiveness when they are with you.  

I think, I think every generation is like that as you get older you can say oh well they’re not doing it our way but they adjust.  The great thing about human beings and the key to our survival is the ability to adapt to our circumstance.  We don’t have any control over anything, everything is uncertain but we have to have open minds and adaptability and that’s what keeps me going. 

It is a challenge everyday actually because you don’t know what is going to happen and I try to feed that to my students, and I get it from my - I think you don’t want to surround yourself with people who are negative about it all.  Because a mind-set - a great book by Carol Dweck “Mindset” affects everything you see. If we have a negative view of everything, everything will be negative. I often sometimes say to people if you just change how you see a person they will suddenly look different.  Because you are only seeing the good qualities then.  If you see them negative ‘Oh there they go again look at them, look at them, at the way they are standing terrible!’ So I think negative things you see more negativity, positive thing you see, every day I see an elderly woman walking down the street she’s got her wee bag and I think good on you, into the wind, I stop and talk to her I stop and talk to people. So I always find life interesting.  It is hopeless to go for a walk with me, it will take about 4 hours to get anywhere. 

It sounds like my mum at the supermarket.

Well that’s beautiful, because everyone has their own story and it’s that social connection that keeps you going and everyone in their own ways battling along we get locked into our own little negativities and it closes so much off.

And I think that is totally relevant to what we are all talking about. 

You have to have hope. 

Having that horrible negative view of the other person and not looking to the children with optimism. 

Well you would have seen many cases and you talk about your own case very positively Shelley - that people get there.  It’s just and you said it beautifully at the beginning it’s like climbing a mountain guiding them through trying to avoid the fall down the cliff and to get back up again.  It’s like 1 year olds fall over and get up again we have to keep them moving because people do come out the other end, well most of them do sadly sometimes they don’t but mostly of them do. 

The song I play at the beginning of every Family Law class is my favourite song of all time the Hollys ‘He [aint] heavy he’s my brother’, “the road is long but his welfare is my concern...” (or her welfare is my concern).  We are going to get through this. All the people I help pro-bono ring you up and you have a chat and a listen and say ‘alright give them a little bit if a this is what you need to do. Here try this and then come’, because they are in an emotional state when a break up happens and it’s hard to think about anything.  So it’s little steps as you said and little things and suddenly you get through you start to let go and you start to see another light but it’s very hard for a start.  That’s why it’s such a tough job.  You’ve got one side that’s really angry they didn’t expect this to happen the other side has already moved through anger and then they feel guilty about it so they are all in different minds eventually they get back to that sort of...

It’s like Stranger Things they are all in the upside down and it takes a while before they...

And that just takes time.  And it takes people being there, making sure they are making the right [decisions] not falling into traps where they make...whenever we are in an emotional states we do the wrong things.  We drink too much, we send crazy emails, we do risky behaviour - we do all the thigs we shouldn’t be doing.  That’s being human and we’ve got to learn to say that will happen sometimes. I always say to my students get them if they are having a bad day to give you a quick call and say everything is still alright, we’re still on track, it’s the little things. 

Well thank you so much Mark, this has been an amazing session 

It’s a bit longer than normal, you’ll have to do a bit of cutting over there. 

No, that’s great. This has been Divorce Café. if you enjoyed this episode check out other episodes on related topics and there will be an article alongside this episode. 

Thank you Mark

Thank you Shelley and Taina