Franks Stephen: Amended Answers to Oral Questions — Question No. 4 to Minister; Family Courts (Openness of Proceedings) Amendment Bill — First Reading 
Franks Stephen: Amended Answers to Oral Questions — Question No. 4 to Minister; Family Courts (Openness of Proceedings) Amendment Bill — First Reading 
[Volume:618;Page:13893] 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party to speak in favour of my colleague Muriel Newman’s Family Courts (Openness of Proceedings) Amendment Bill. This bill has been pending for a very long time; essentially since I came to Parliament in 1999. I remember Dr Newman meeting the distraught victims of the Family Court right back then and occasionally asking me for comment on some of the legal issues. 
I had never practiced in the family law area and I had no knowledge of it. I was quite glad not to because so many of the circumstances seemed so hopeless in terms of the unhappiness on both sides. But I have had to acquire a little knowledge and recently I made it my business to read the sequence of decisions in the case that saw a lesbian couple obliged to share the custody of their son with the father who had signed a contract to enable them to have that child. 
As I went through those judgements I became really angry—not at all of them and I will not name individual judges or set my view of family law up against individual parts of that saga. But suffice to say that as a lawyer I could not trace the principles through many of those decisions. I went to a very well-known text writer in this area a man who is regarded as one of the experts in family law and asked if I was missing something. I asked if there was something wrong because I had tried to follow the reasoning and I could not see that it was more than good intentions and discretion by the judges involved. He said to me that that was what family law was and that in many cases it was actually wrong to call it law. It is just people making their own consciences feel good using the discretions vested in them. 
That would not be possible if this were a properly open court. It would not be possible for the family law jurisdiction to be essentially so unpredictable that the number of cases that have to go to the Family Court beggars all expectations of someone like Dail Jones who was here when the Family Court was born. When New Zealand First’s Dail Jones was here as a National Party member the fond hope was that the informality the mediation jurisdiction the encouragement to settle the lack of fearsomeness and the user-friendliness would mean that there was far less litigation. What have we reaped? We have reaped the exact opposite—the unintended consequence of refusing to do justice and instead trying to achieve a feeling of virtue on the part of the judges. This is not law because the judges do not have to make it law when they are not constantly under scrutiny. 
I spent a little time talking to a United States lawyer who had been counsel in the Donald Trump case which we read about in detail here and again in Boris Becker’s case. She was here on an exchange and she pointed to what she thought was wrong—that because there is no publicity of these cases in New Zealand the incentives to settle are too inadequate. The prospect of having one’s dirty linen washed in public is a very great incentive to settle for the party who is most wrong who has been the greediest or the harshest. Her view was that the American public ended up with a reasonably good crude folklore understanding of family law principles whereas the New Zealand public never got that exposure. They did not have the cause célèbres—the cases that told them. 
We saw it with Dr Smith. Dr Smith was prosecuted and when the Family Court judges finally released the other side of the story another view was taken. If that had been available to the New Zealand public and to him right at the start he might never have had to do what he did.