Family Courts Matters Bill — First Reading 
Family Courts Matters Bill — First Reading 
[Volume:641;Page:11491] 
Family Courts Matters Bill 
First Reading 
Debate resumed from 23 August. 
KATE WILKINSON (National) 
: 
 The Family Courts Matters Bill is one that National will be supporting going to a select committee where it can and must be duly and properly scrutinised. This bill amends legislation to increase the openness of Family Court proceedings. It is also to improve the efficiency and effectiveness of the Family Courts by making changes to certain processes and procedures. But most important it opens up the Family Court proceedings to the public. 
I will refer to a couple of comments that the Minister Rick Barker made when he was delivering his first reading speech on this bill which I have to say was somewhat incredible. He said that the bill is largely technical— 
The ASSISTANT SPEAKER (Ann Hartley) 
: Could the members please keep the noise level down. It is very hard for the speaker. 
KATE WILKINSON 
: At the time of the first reading the Minister stated: “The bill is largely technical.” He said that it is not designed to be a major overhaul of the Family Courts and that it is tidying-up of legislation. That I find is somewhat at odds with his statement 3 years earlier when referring to the bill: “The wide-ranging changes are designed to improve transparency in the court without compromising family proceedings.” The changes to this bill are not minor they are not mechanical and they are not technical. The opening up of the Family Court is a matter that must have the proper scrutiny of the select committee. 
I think the explanatory note of the bill issues a suitable caution that any change to the openness of Family Courts must strike a balance between open justice and the privacy of the individuals children and families who are involved. Family law matters dealt with in the Family Courts are largely private often sensitive and involve highly personal information. Parties may be reluctant to give evidence in public. Publicity around the case can heighten stress and have harmful effects on children at the centre of the disputes. That balance between openness and privacy is one that deserves full and proper scrutiny of the select committee. 
We must also bear in mind the increasing tendency to compare our jurisdiction with overseas jurisdictions while sometimes ignoring the important differences. Because the Australian Family Courts may be open to the public does not mean that we necessarily have to follow suit. For example in our Family Court jurisdiction matters relating to the appointment of managers come under the Protection of Personal and Property Rights Act. It is not in the public interest and in fact it is none of their business what the assets of a dementia-afflicted grandmother are. That is exactly what would be discussed in such an application under the Protection of Personal and Property Rights Act. I also understand that adoption paternity child protection domestic violence and some property matters are dealt with in other courts in Australia not the Family Court. Accordingly comparisons between the jurisdictions need to be treated with extreme caution. 
The importance of privacy is also balanced with the view that sunlight is the best disinfectant. People can certainly hide behind closed doors for whatever reasons and that may not be in the best interests of justice or the family. Likewise people can exploit publicity which also may not be in the best interests of justice or the family. I note the New Zealand Law Society comment in 2004 following the Law Commission report on delivering justice for all which—incidentally—did not recommend opening up the Family Court. The New Zealand Law Society stated: “The society appreciates the arguments in favour of increasing public scrutiny of the courts. Justice needs to be seen to be done. However it remains of the view that Family Courts in particular should remain private. The personal tragedies and tribulations of families (which affect no-one apart from family members) should not become a matter of public debate. … In general the media should not attend chambers hearings and the current restrictions on obtaining information from the courts should remain. Removing restrictions tilts the balance between the privacy of the parties (which is important in initial stages before a decision to go to a full hearing in public is made) and the public’s right to know (in reality the media’s right to know) too far in favour of the media.” 
I think it is also timely and appropriate to quote the view of the English Law Commission: “What is more serious is that the parties and more especially their innocent children whose identity is frequently revealed as a result of the details which can be published suffer the disturbing experience of having the most intimate details of the family life exposed. While it may be said that the parties have only themselves to blame no such argument can apply to the children whose privacy the law takes pains to protect in other cases.” 
Those changes recommended by this bill in relation to the opening up of the Family Court proceedings are I believe the most important changes that need to be scrutinised. Without a doubt there are some other changes provided in the bill. Some of them I would have to say are reasonably inconsequential and some of them could be technical. Do people really care whether a Family Court judge wears a gown? I would have thought it was far more important to ensure that there are enough family legal aid lawyers available to do the work because there certainly is a problem regarding legal aid availability. It is all very well to have a judge there—gowned or otherwise—but justice is not served if the applicant or the respondent does not have a legal representative to help him or her. 
I have noted some of the criticisms of this bill made by the honourable member Judy Turner that suggest that parenting rights are usually granted to whoever applies to the court first. That matter has not been addressed in the bill. I would have thought whoever made the application that the most important thing is that the welfare of the child is paramount—and the welfare of the child must be paramount. The statistics given were interesting. The figures show that the mother gets the children in 64.5 percent of cases the father in 11.5 percent of cases and shared parenting is granted in only 12 percent of cases. Of course there may be many good reasons behind these statistics and it is foolhardy to take statistics at their face value. But my having said that there is certainly a good argument that this bill should be looked at by the relevant select committee when scrutinising. The honourable member Judy Turner also pointed out that this bill fails to address the inability of the Family Court to order paternity tests. Again maybe this is an issue that is appropriate for the select committee to consider. 
I think the argument that some of this bill is mere tinkering around the edges is a valid one but there is that most important provision relating to opening up the Family Court. I have said before that legal aid in particular family legal aid is an issue especially when the number of family legal aid providers has plummeted from about 2000 to 1000 in just 12 months and especially when victims of domestic abuse seeking protection orders are unable to find a legal aid lawyer to assist. As we know they end up in places like Blenheim filing the applications themselves often with the help of Women’s Refuge. Then the victim ends up having to face the abuser in court because he has objected and that is far too hard a process to expect an already vulnerable and abused victim to go through. It is no wonder that those victims give up on the process give up on the justice system and have no faith or confidence in the Family Court. This bill does nothing for those women. This bill does nothing to address the family legal aid crisis that we have while the Minister just turns a blind eye. 
Court delays is another vexed issue for this Government that it does not seem to be able to get its head around and this bill does nothing to address that issue as well. 
 We need to have a full and complete discussion on opening up the Family Court. It is a major shift; it is not a minor mechanical or technical matter. As I have said we will be supporting the bill going to select committee. We hope that some of the gaps in the bill will be filled and most important that robust consideration will be given to the opening up of Family Court proceedings. 
NANDOR TANCZOS (Green) 
: 
 The Green Party also supports the Family Courts Matters Bill in particular for one of the reasons that Kate Wilkinson talked about at some length which is increased openness in the Family Courts. Like her we agree that proper scrutiny in a select committee is absolutely essential. There are a number of difficult and delicate issues that need to be addressed when it comes to making changes in the Family Court and there needs to be a very open and robust consultation process so that people get to have their say and so that the competing interests can be balanced. Nevertheless we support the bill primarily because of increased openness. The bill should not allow the identification of individuals in cases or for the media to air people’s personal problems and grievances in public. It is absolutely essential that we protect the privacy of parties in cases in the Family Court. But justice should be transparent; it should be open. 
The bill should also ensure that proceedings in the Family Court can actually be an opportunity to inform the broader public about some of these important issues rather than simply being restricted to informing the individuals involved. We think that is something that is helpful. In fact I note that the Chief Judge of the Family Court has made comments in the past in favour of limited opening of reporting in the Family Court. We support that view. As I said it is a difficult and delicate balance to address. I look forward to the select committee process. I hope that Kate Wilkinson will have a chance to sit in. I am assuming the bill will go to the Justice and Electoral Committee. I think it would be a shame if we missed out on her expertise. 
The other issue I will mention is around non-judge-led mediation. Again that view is something that the Green Party supports. We are very strongly supportive of less formal ways of resolving people’s disputes and issues. We believe that ordinary people have a real ability to work out the best solutions for themselves given a little bit of help in terms of a good proper process that can help to facilitate these kind of solutions. We are very supportive of that. Of course we are well aware that the successful implementation of mediation relies on adequate funding. Again it is the same issue as with restorative justice where we have a process that allows people to have more active involvement in the process of finding just solutions. We know that the process is effective. We know that the satisfaction of participants is increased. We know that the solutions are often more effective. But nevertheless access to those processes is restricted because of a lack of provision which is largely around a lack of funding and also a lack of trained facilitators and the like. We would be unhappy if that situation proved to be the case with non-judge-led mediation. We think it is important that the funding is there to make sure that the procedure actually works and that people who want to make use of the procedure can get access to it. 
That concludes my contribution. I look forward to the select committee working through these delicate issues. 
JUDY TURNER (Deputy Leader—United Future) 
: 
 I rise on behalf of United Future to support this first reading of the Family Courts Matters Bill. We do so with some reservation but we are happy for the bill to go to a select committee where the appropriate opportunity for change is in place for these issues to be addressed. We welcome for instance provisions that make the court more transparent. We think that is great. We also welcome any attempt to improve access to mediation services for families facing this sort of process. 
I will mention a family lawyer in Palmerston North Penny Clothier who recently handed in her ticket as a Family Court lawyer. One of the things that impressed me in a conversation I had with her and in correspondence I have shared with her is her belief that lawyers are not equipped to mediate between warring members of a family trying to determine sensitive things like custody and access to children. She believes that this sort of work should be handled by people who are qualified more in the area of mediation and counselling rather than by the adversarial approach of court lawyers. I am very interested to see whether there will be any submissions on that. 
I also noted a column in the  
New Zealand Herald  
recently by Terry Carson a lawyer with more than 35 years’ practising experience in the Family Court. He was commenting on this particular bill and he explained: “… I would suggest that the problems with the Family Court and how it is viewed by the community run much deeper than the issues the bill might address. The court suffers from being the only court in our legal system that appears to frequently operate in a moral vacuum.” He continued by saying: “Nowhere is this more evident than in the Family Court’s property relationship jurisdiction. It is ironic that if one enters into a business partnership with a total stranger the law requires the partners to act towards each other with the utmost good faith and a civil court will enforce that requirement. However one can lie cheat and betray a spouse civil union or de facto partner and the Family Court usually will order the payment of half the family wealth to the offending partner without making any moral judgment. Indeed if the other partner brought a house or more wealth into the relationship at the outset the effect of the law means the Family Court can richly reward a partner whose actions may have been morally reprehensible and have destroyed their family.” 
Issues surrounding parenting orders and the day-to-day care of children are even more important than property and are another area where the Family Court operates in a vacuum. The court is simply directed to act in the best interests of the child when determining custody arrangements. Although this is a noble guide it effectively leaves total control of families’ future make-up to the whim of an individual judge. 
United Future believes that this bill looks like a lost opportunity to make greater improvements in this area. There are lots of technical changes. I think the National speaker made reference to them. Some of them are probably positive and we have no problem with them. Knowing that the Minister Rick Barker was considering amending the Family Proceedings Act I sent him a member’s bill I have drafted that would allow judges in the Family Court where there was a dispute over the paternity of a child to order a DNA test. Currently if a dispute exists and a man believes he is the father of a child and wants his name on the birth certificate so that he can contribute to the well-being of the child and have access to him or her—or it may be the reverse that he is named as the father and he has some doubts about that and would like to have it clarified—under the current Family Proceedings Act the judge can recommend that a DNA test is done but the mother can block it. 
What has happened historically in family law is that the father then has to undergo a lengthy and expensive court process—taking 4 or 5 years. In one case I noted the only way in which the judge could bring justice to bear was to remove the said child from its mother’s care for 2 hours and place that child in Child Youth and Family Services care. Child Youth and Family Services then went and got the DNA test done which proved what the father had contested all the time: that he was the father. He wanted to pay child support and to have some access to his child. That process took him 4 years. It was 4 years of lost contact. He had no ability to have any contact at all with his child despite the fact that he had lived with the mother for many months was with her at the birth of the child and had lived with the mother for 3 or 4 months after the birth of the child. He knew he was the child’s father but was blocked from timely contact with his child and lost time with the child. 
 This is a recommendation of the Law Commission; this is not some flaky idea that Judy Turner has dreamt up. In the Law Commission’s paper on legal parentage it recommended that judges be able to order that a DNA test be done when it is in the best interests of a child for this to be determined. The test would not be something that the father could sneak around behind the mother’s back and get done; it would be in an open and transparent way. Where paternity is contested surely the Family Court should be able to get this very simple procedure done. In this day and age it is not even an invasive procedure. A buccal swab from a child’s mouth is all that is required to determine whether the father is the father. 
As a father cannot even begin the process of applying for contact with his child until he has determined that he is the father it seems archaic that the Family Court cannot order this procedure done. I am disappointed that the Minister for Courts has turned down this chance to include what is an already drafted provision. I will be taking the provision to the select committee to see whether there is any openness of the committee to consider this and openness for the provision to be added in as an amendment to the Family Proceedings Act. I think it is something that is long overdue. 
As I say the recommendation came from the New Zealand Law Commission as part of a very substantial paper and body of work that the commission has done around the issue of legal parentage. It is one of the easiest of the commission’s recommendations to implement. I cannot for a moment understand why the Minister would have turned down this offer. I am not precious about the way I have drafted the provision. If it can be improved so that it can be included I am very happy for that to happen. I call on the select committee that will be viewing this bill to consider the provision. I will be making a submission to that end to see whether there is any willingness on the part of the select committee to consider it. I am hoping yet again that the Minister will reconsider it. 
However this is not all that this bill deals with. We are happy with the basic opportunity that this bill provides for further discussion around the Family Proceedings Act. Therefore we are happy to support this first reading. 
Bill read a first time.  
Bill referred to the Social Services Committee.