Little Andrew: Family Court Proceedings Reform Bill — In CommitteeText is incorporated into the Bound VolumeLittle Andrew: Family Court Proceedings Reform Bill — In Committee[Sitting date: 03 September 2013. Volume:693;Page:13208. Text is incorporated into the Bound Volume.]ANDREW LITTLE (Labour): It is a pleasure to take a call on this very important piece of legislation the Family Court Proceedings Reform Bill which has its origins in the longstanding concerns over the operation of the Family Court and the Family Court jurisdiction.I think it is timely to point out that this bill had its genesis in I think a very well-intentioned and a very noble action on the part of the Government. It started off with the Government hearing the concern about the need for the Family Court to modernise and especially to reduce delay and anxiety about the way it was resolving or dealing with some family disputes. That was in an environment that was changing too for families where the demand—particularly from men—to play a greater role in their children’s lives after separation was putting more pressure on the court in terms of time and claims for legal aid.The previous Minister of Justice did the sensible thing of calling together all parties who had a stake in this matter for a consultation session here at Parliament as it turned out and took time to hear people hear what the concerns were and hear about suggestions for reform. Following that that Minister then set up a couple of processes. They got around the legal profession but also set up an external working group to assist that Minister to come up with some solutions. There was a process of putting together a paper. That then drew on public submissions. And all of that was then meant to lead to a set of reforms that reflected the actual concerns that people felt.Sadly by that time a different Minister—in fact it turns out that it was the Minister who is now in the chair the Hon Judith Collins—took over the management of the procedure of the reform process. What emerged—and I really now take my lead at this point from the external reference group itself—was a bill that bore little relation to what came out of the consultation that had led up to that very point. What we ended up with is a bill that is much less about the effective and efficacious disposal of family disputes and more about saving money by reducing legal aid and reducing court time.I think it is timely as we think about these changes to just reflect back. There is an article in theNew Zealand Lawyer online on 20 May 2011 that was a retrospective about the Family Court. It is interesting. It gave an account of the original intentions and origins of the Family Court. The royal commission had been set up to deal with and to look at the court system and in particular to make recommendations about the Family Court. What the author of that 2011 article said was this: “The Royal Commission noted … that the ‘aim of the Court’ ”—that is to say the Family Court—“ ‘should be to help resolve problems with the co-operation of the parties wherever that is possible with the minimum of disruption in all cases’.” The author goes on to say: “This focus on conciliation put the spotlight on providing services which assisted families to cooperatively resolve disputes. The Royal Commission recognised that self-determination rather than judicial determination often required expert assistance. That expertise was counselling and mediation.”You could take those words which were a summary of the royal commission’s report 33 years ago and they resonate very closely with the very words that sit behind or at least are provided in the summary of this bill. It is all about an emphasis on resolving disputes between the parties. The difference is that 33 years ago they recognised that actually couples who separate sometimes need professional assistance to arrive at that point. They need assistance to understand their legal rights and they need assistance to get through the emotional and difficult time that it is for the couple and any children who might be involved as well.The Royal Commission on the Courts described the Family Court as having a twofold function judicial and therapeutic and it described the court’s therapeutic jurisdiction as being defined by the fact that there were clinical services that were required—social workers psychologists and psychiatrists. And so it is against that background that we consider this bill on this occasion.Just going through some of the relevant parts of Part 1 which deals with the amendments to the Care of Children Act it is a very crucial part of much of the work of the Family Court. In fact 40 percent of the applications that go to the Family Court deal with care of children matters so it is a very significant part of the Family Court business. Clause 4 of the bill replaces sections 4 and 5 of the Care of Children Act and the question that arises is really how meaningful in the light of the later provisions of the Act—the family dispute resolution provisions which we will come to in Part 3—those particular changes are because those changes talk about appointing the lawyer to represent children. The proposed new section 4 talks about promoting the paramount welfare and best interests of the child in the proceedings and all the way through the new proposed section 4 in clause 4 is the constant reference to the welfare and best interests of the child in any proceedings before the court.But of course the reality is that going through the family dispute resolution process unless it is accompanied by an application that alleges violence in the relationship is not a proceeding for the purposes of the bill. So there is a real question about just exactly who will be promoting the welfare and best interests of the child because it is not going to be any officer of the court and it is not going to be lawyers and counsel. The reference particularly in subsection (2) of the proposed new section 4 says that “Any person considering the welfare and best interests of a child” has to take a number of steps. Well that has got to be the parents who are separating who are bound up in the emotional turmoil and any facilitator involved. I just think that there is now an air of unreality that that part of the bill will begin to represent.The proposed new section 5 in clause 4 of the bill sets out a series of principles relating to the child’s welfare and best interests but it is really problematic to know exactly who is going to be taking responsibility for that.There is a new section 7 of the Act under clause 5 relating to a lawyer for the child and that is a very significant change because it goes from the present wording which says that unless the court is satisfied that the appointment would serve no useful purpose the court must make an appointment or a direction under the previous subsection to appoint a lawyer for the child particularly where there is an issue about the day-to-day care of the child. That wording which heavily emphasises presumption in favour of appointing a lawyer for the child now becomes that the judge must be satisfied that appointing a lawyer is going to be worthwhile or relates to any concerns for the safety or well-being of the child or as the judge otherwise considers necessary with no guidance as to how that discretion might otherwise be exercised.This is a significant change and this goes back to the point that has been made previously in debates in this House on this bill and that is that this very much raises the issue of whether this bill will allow New Zealand to comply with its obligations under the United Nations Convention on theRights of the Child where children under that convention are guaranteed the right to be heard in matters that affect them and where they are of sufficient age to instruct counsel to ensure that their views and their voice can be heard.That remains a very serious issue and the Minister in the chair might simply want to answer the question of how the Government expects to meet its obligations under that convention given the provisions of this bill that will change the presumption in favour of the appointment of a lawyer for the child to a presumption against that leaving the parents in their very emotional state to be the ones who together somehow—notwithstanding their differences—are meant to be determining the best interests of the child. That is an impossibility. That is simply just not a realistic prospect so we have very real concerns about the extent to which there will be compliance with those convention requirements.Then there is the issue about lawyers for parties under the new section 7A in clause 5. That fundamentally changes the role of lawyers. There is no question—and I think the Minister has basically admitted that she wants to see a much lesser—