Fairbrother Russell: Family Courts Matters Bill — In Committee 
Fairbrother Russell: Family Courts Matters Bill — In Committee 
[Volume:646;Page:15692] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I turn to clause 44 and I do so having been one of the few people—I guess my friend Mr Dail Jones and perhaps Dr Richard Worth are the others and perhaps Chris Finlayson—who have worn a wig and a gown in their time in the court. I have to say that when clause 44 first came before the Social Services Committee I looked askance at the provision that we would be returning to the wearing of gowns by judges in the Family Court. But as has been said by the Minister the Family Court has moved a long way since the days of open court. When I first started appearing in court we would don our wig and gowns to go down to do decree nisi and decree absolute and it would be a great turn-out for the lawyers. It was always followed by a trip to the local chambers where hot liquids were served and we celebrated generally our success of undefended proceedings. Then we sent out substantial bills to the parties who had long since started living apart some 4 years previously and we reminded them that only then had they become divorced. 
The days have moved on since then and it has all gone under cover. When it went under cover the Family Court rooms were built they were built small the judges sat at the same level as the parties and informality was the order of the day. Of course some Family Court judges could not adapt to informality. They had spent their lives being lawyers with their noses in the air and they tried to become informal judges and Family Courts often became a bit of a charade. But time has moved on. These days the Family Court judges have come from a Bar that has known only a closed Family Court so I was somewhat surprised to see this provision that enables a judge sitting in a Family Court to wear a gown but not to wear a wig. Now by that I take it that if a judge has a hairpiece it is not covered by this provision. When I look at the definition in the clause the term “wig” is not actually defined. I presume it means a wig in the common law sense which is the horsehair wig that we all wear and that some of us keep propped up in our rooms in this building just to remind us what real life was about. 
Hon Rick Barker 
: I hope you dust it legally! 
RUSSELL FAIRBROTHER 
: It is powdered not dusted. One never washes a wig nor does one have it dry-cleaned. One just adds talcum powder to it to refresh it and if it gets too stuffy one puts one’s finger through the top to let some air in through the horsehair. So I presume this provision means that a judge may wear a toupee or a hairpiece but not the classical wig which is made from horsehair and may wear the gown. 
I wonder why that is because the whole idea of judges is that they assert their authority by the sense they make. This is a request that came from the bench of the Family Court through the Principal Family Court Judge Peter Boshier a man who went to law school with me. At that time he was very much a left-wing longhaired radical who took to wearing a suit when he was admitted to the Bar and went on to higher things. Wearing a gown in court must therefore be important to some Family Court judges to assert their authority although in my time of appearing in the Family Court over perhaps 10 or 15 years I never thought the clothing of the judge made much difference. But if the judge wants to wear a gown then I say let him or her wear a gown. We have to draw the line at wearing a wig although that takes me to a school of thought in the Family Court that it is not really part of the District Court. It regards itself at a slightly higher level than the District Court and would like to see itself elevated to the level of the High Court. 
There has been some talk that there should be a separate Family Court jurisdiction rather than it being a division of the District Court. We see that from time to time the Family Court insisted on its reports being headed as in the Family Court rather than the District Court and it asserted a degree of tino rangatiratanga that many of our Maori people would desire. The judges got their own way; the Family Court is identified as that but it still remains an adjunct of the District Court. It aligns itself more with the District Court because judges in formal proceedings there wear a gown and the Family Court judges clearly want that same status. I guess it does not matter to me whether a Family Court judge wears a gown but if he or she wants to relieve the boredom and stick a gown on to go into court then so be it. 
I note as a reminder that lawyers appearing in the Family Court must not wear a gown or a wig and I guess the wig qualification again applies. By this we are referring to the traditional horsehair wig which no one wears anywhere now not even in the Supreme Court. Wigs are worn only on ceremonial occasions such as the admission of a High Court judge to the bench and if someone is one of the few counsel from New Zealand still appearing in the Privy Council then he or she gets to wear the wig and gown. 
I was somewhat surprised at this provision but having discussed it with the judge who appeared before the select committee I am satisfied that it was a decision that judges felt was important in some cases when they need to impress parties with the severity of the orders they are making. I have to say that the orders made in the Family Court are serious orders. When the judge hands down the order it requires the parties to listen carefully and to take cognisance of them. I did a case once of a chap who fought long and hard to keep custody of his daughter from the mother whom he described as being a most undesirable woman. His case was somewhat helped by her appearance in the  
Listener 
; it was an anonymous two-page article about her night-life profession. He fought long and hard to keep his daughter but eventually lost. After an access visit he refused to return his daughter. He would not tell the bailiffs where his daughter was when they came to pick him up and he was charged with obstruction. It was argued by us right through to the High Court that doing nothing could not be an obstruction but the law has its way of bending to meet a situation to do what the judge thinks is right. That set the precedent that a parent who had been before the Family Court and who was ordered by a judge to do something and did not do anything was guilty of the summary offence of obstruction. I guess the need to wear a gown in the Family Court is a way a judge can emphasise the grandeur and the importance of the occasion. 
I turn now to clause 45 “Attendance at hearings”. This broadens the area of parties and people who can attend Family Court hearings. When the Family Court went under cover in about 1979 the privacy of the proceedings were jealously kept and as I have said the Family Court rooms were built small; the parties were the only parties therein plus the registrar. Certainly no family or friends and no witnesses were allowed to remain. There has been an easing of that and the Family Court rooms are now being built to large proportions because it has been found that some of the old style of advocacy even in the inquisitorial Family Court still requires a degree of space and support. 
Hereafter clause 45 amends the Family Courts Act by the insertion of new section 11A to include those who may attend at hearings such as officers of the court; parties to the proceedings—of course that has always been the case—lawyers representing parties to the proceedings which has always been the case; witnesses which is somewhat of a departure from the old practice; and accredited news media reporters. I think this first came in under the Care of Children Act that we passed a couple of years ago. This provision updates all the Family Court proceedings to that level. It also includes persons whom the Family Court judge permits to be present as support persons for a party on a request by that party and any other persons whom the Family Court judge permits to be present. 
This leaves a high degree of discretion in the hands of the Family Court. The Family Court judge is obliged to allow news media in unless the Family Court judge considers under subsection (4) that it would be desirable to keep the news media out. There is a presumption in this bill for the news media to attend all Family Court hearings. I have to say that the news media would be disinclined to attend most Family Court hearings because when they are not tragic there is very little comedy and most often they are terribly sad but boring events. When what is played out in the court is a part of what is often in the court papers before the parties and the judge anyone listening would not have the whole picture because a stack of affidavits and other reports and documents that the parties in the court proceedings speak about are needed. Unless the media are also allowed by the judge to peruse the documents in the court there will be a bit of a battle to get an accurate report by the news media. The judge of course would have the power to enable a representative of the news media to peruse an affidavit if he or she thought it was necessary to get an accurate and objective view of the reports. Having said that I note there has not been any rush to report family cases since that provision was changed under the Care of Children Act and I do not imagine that very much will change here unless there is a matter of some great importance. 
What critics of the Family Court often fail to realise is that the Family Court does not operate on the system of precedents. Perhaps it does in the area of matrimonial property but in most other areas such as custody care of the children and guardianship issues all Family Court judges’ decisions are essentially fact-based. Because of that the law of precedent which is the golden thread of our common law does not apply very often at all in the Family Court. The need to have detailed reports of Family Court proceedings to guide lawyers is not as desperate and urgent.