O'Rourke Denis: Family Court Proceedings Reform Bill — Second ReadingText is incorporated into the Bound VolumeO'Rourke Denis: Family Court Proceedings Reform Bill — Second Reading[Sitting date: 02 July 2013. Volume:691;Page:11562. Text is incorporated into the Bound Volume.]DENIS O’ROURKE (NZ First):Before the lunch break I mentioned that New Zealand First had wished to support this bill and I gave some reasons why. I said that fundamentally we were not against the principle of family dispute resolution but I also said that there would be a number of conditions and I listed what they were. In the end despite a very large number of amendments having been made to the bill as introduced New Zealand First’s reservations and concerns have not been met and so New Zealand First will now vote against the bill.The bill targets the use of professionals especially lawyers for the parties and lawyers appointed to represent children. Under clause 5 legal aid will be available only to a limited degree prior to but not during any mandated dispute resolution process and secondly if a dispute goes before a judge. New Zealand First does not agree to penny-pinching of this kind which results in a lack of adequate legal representation and severely reduced legal aid entitlements.As a fundamental principle of justice parties with a reasonable need—not regulations—should decide whether they need a lawyer. Family dispute resolution would be free for those under the income threshold for civil legal aid estimated at about 60 percent of participants. So most parties are already legally aided out of necessity. But the availability of legal aid should not be the basis upon which parties decide whether they should have a lawyer or not for these family dispute matters.Although family dispute resolution is likely to be less expensive than hiring a lawyer and proceeding to a defended hearing in court these requirements are so tough that many people—many of the 40 percent not entitled to legal aid—will simply not get a lawyer when they really need one. There is also the very real problem of power imbalances being created as a result. These reductions in legal representation and legal aid are the main reasons for New Zealand First opposing the bill. These reductions are likely to be a false economy anyway because costs in other areas are likely to increase and several submitters described why this is likely.Fundamentally if the quality of the process is compromised the resolution of disputes may be illusory resulting in another dispute later. Another reason for opposition is that the bill prohibits the court from appointing a lawyer to represent the child unless it is “necessary”. Clause 5 of the bill as introduced would allow a lawyer to act for a party in a proceeding if the application was made without notice if it relates to international child abduction if the party is the Crown if a judge has directed the case proceed to a defended hearing or if the lawyer is lawyer for the child who is party to the proceedings.The concern though is that lawyers would no longer be involved in all of the cases where they are needed. The problem is that the bill requires the court to have concerns for the safety or well-being of the child and to consider that an appointment is necessary. It should be the other way around. The court should appoint a lawyer for the child unless it finds that it is unnecessary. That is what it is in the current law and that really is the way it should stay.The official advice is that parents are expected to represent the best interests of the child in the process but parents in too many cases are not really able to objectively look after their children’s interests as one would hope. In these cases a lawyer for the child is needed and the test of necessity is too tough. Children cannot always rely on their parents especially in the stressful atmosphere of a relationship breakdown. The interestsof children must be paramount which is the foundation of the Care of Children Act 2004.This bill fails children with its restriction of independent representation for them. New Zealand First also believes that the full Government funding of counselling services should be reinstated. The bill would repeal existing provisions for Family Court counselling under the Family Proceedings Act and the Care of Children Act except for up to 3 hours of counselling and it would replace them with a new scheme. The provision for only 3 hours’ counselling is not adequate. Not all families will break up if they get adequate counselling before the other process is used. In the past most matters were resolved by counselling and it should be reinstated. The court will be able to appoint a lawyer to assist the court in appropriate cases under this bill but the parties would have to pay for this—probably a one-third apportionment. That is also wrong and is opposed.Another issue of concern to me not addressed by the bill is the lack of enforceability of agreements in the family dispute resolution process. These agreements lack the status of a court order. They are likely to be recorded and may be signed but they depend on the commitment of the parties to carry them out. The risk of course is that they will simply be ignored.Although the bill started out with good intentions and although New Zealand First is not opposed to family dispute resolution in principle the overwhelming thrust of the bill is clearly just to save money and the effectiveness of our Family Court system will be compromised. The bill fails to ensure the availability of adequate publicly funded counselling when it is needed most. It fails to ensure that parties will have legal representation at all stages when they need it. For those reasons New Zealand First is obliged to vote against the bill.