Little Andrew: Family Court Proceedings Reform Bill — Second ReadingText is incorporated into the Bound VolumeLittle Andrew: Family Court Proceedings Reform Bill — Second Reading[Sitting date: 02 July 2013. Volume:691;Page:11537. Text is incorporated into the Bound Volume.]ANDREW LITTLE (Labour):I rise to talk on the Family Court Proceedings Reform Bill and to confirm that the Labour Party will oppose this bill. Far from providing a better process for parents separating and for protecting vulnerable parties—both adults and children—it will do the reverse. The Minister of Justice made a play for the emotions by saying that this bill deals with the situation where two adults who once loved each other so much that they had children now find themselves moving apart. Well actually it is exactly that fact and that situation that explains the intensity of emotion around separation for separating adults and in particular separating parents. That is where the practicality of this legislation I think is going to be put to the greatest test.The origins of this bill were honourable in intention. There were delays in getting some cases dealt with and disposed of; there is no question about that. There were participants who were playing and continue today to play the game or to play the court system off against each other to express their anger or whatever else it is—the sociopathological behaviour that they might have towards each other. It is correct that court time is being used for arguably trivial matters although of course in matters of human affairs and the human heart one is very reluctant to accuse anybody of regarding the matters that are important to them as trivial. I think there is some substance to the allegation that perhaps the Family Court which was conceived with the intention ofcreating an environment of conciliation has moved away from that in many respects. So all those allegations and those complaints about the Family Court were known and are known.In response to that the Minister of Justice of the day Simon Power convened a conference of stakeholders at Parliament and that thrashed out the issues. That led to the establishment of an expert reference group. That led to other consultation and the end product was this bill which has been modified only slightly as a result of the Justice and Electoral Committee process. The original bill included measures that were not however reflective of that consultative process. The select committee was put in the somewhat embarrassing position of having the expert reference group come as a group to make a submission to distance itself from the bill as it was originally drafted. That is not a particularly pretty picture for a select committee to have to confront. At the heart of the reforms is what is called the family dispute resolution process. A mediation approach to family disputes is not unknown to or unusual for the Family Court even today. One of the changes made under the previous Labour Government was to promote and encourage greater mediation. One of the things that the previous head of the Family Court Peter Boshier did was to allow this process of lawyer-led mediation which meant that the judges did not have to get so heavily involved in it. That process has been remarkably successful. It is interesting that the select committee heard that between 75 percent and 85 percent of cases that are filed with the Family Court are resolved without the intervention of a judge. Nevertheless this Government has gone ahead with its family dispute resolution process. The family dispute resolution process is a pre-litigation process. If a party files a matter or makes an application to the Family Court it will then be mandatory to undergo the family dispute resolution process before the court will properly seize itself of the application unless there is an allegation of violence or abuse involved and then there will be a fast-track process that will place it before a judge. But in the absence of that and the vast majority of cases do not involve allegations of violence and abuse there will be this mandatory process.The parties—and they are parents let us face it—will be expected to participate in the family dispute resolution process without representation and support during the process. One of the concessions that the Minister made announced on Easter Saturday this year was that there would be some pre - family dispute resolution legal advice allowable particularly for those who do not have the means and are reliant on legal aid. Legal aid will be available to those who need advice prior to the resolution process as indeed there will be some counselling as well bearing in mind that the amount of counselling available to separating parents was reduced at the end of last year from six sessions now down to three. Those three sessions will continue under this regime for the purpose of preparing parties for family dispute resolution.In cases where the care of children is an issue the separating parents will be expected to represent the best interests of the child or children in that situation. There will be restrictions on the appointment of counsel for the child. That is one of the issues that concerns us the most not only because of our international obligations on the rights of children and their rights to be heard in judicial processes that concern them but because it is simply impractical for parents in the heat of and the intensity of separation to be able to properly represent the best interests of a child or children involved in that separation. It is just impractical for many parents. Indeed the evidence that the select committee heard from parents who had been through the process was the important role that counsel for the child played in assisting mediation between the separating parents which is something that counsel for the parents could not easily do. The role that counsel for the child played became a very pivotal role indeed—a mediating role and abrokering role—between the other parties. That was the evidence that the select committee heard.This bill will take that away. It will place on the shoulders of the facilitators who will be registered and go through the processes—in addition to trying to get the parents to talk to each other in the intensity of this very difficult emotional period—a focus on their view about the best interests of the child. And guess what we can predict it now. Separating parents will have a different view about what the best interests of the child are and there will be no mediating influence at all. I want to read what the United Nations Convention on the Rights of the Child says in this regard. Article 9 talks about ensuring that children shall not be separated from their parents against their will except when competent authorities subject to judicial review determine. That includes where “Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents or one where the parents are living separately and a decision must be made as to the child’s place of residence.” Article 9 goes on to say in paragraph 2: “In any proceedings pursuant to paragraph 1 of the present article all interested parties shall be given an opportunity to participate in the proceedings and make their views known.” This legislation runs directly counter to it because the children involved will not be represented in any discussion about where they should go.Article 12 goes on to provide that “State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child the views of the child being given due weight in accordance with the age and maturity of the child.” Paragraph 2 of Article 12 goes on to say: “For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child either directly or through a representative or an appropriate body”. This bill does not provide for that. This bill places us in direct contravention of that United Nations convention. That is one of the reasons we are opposing the bill.We are opposing it also because it is simply impractical. The expectation that parents who are going through the dreadful unfortunate and traumatic experience of separation particularly when they have been together for a long time have amassed assets together and have formed a family together will be able to with the assistance of a single facilitator and without the benefit of advice on the legal effect or impact of what they are doing happily form some agreement over a period of time is just frankly bananas. It is off the planet and it is out of this world. It is for that reason that we simply do not see that this bill is going to achieve the so-called efficiencies that the Minister thinks that it will.There is no question in my mind that this bill is driven by fiscal considerations. It is not driven by practical considerations about what is needed for the effective resolution and disposal of family disputes. For the avoidance of any doubt let me make it very clear that on the Labour side we believe that the State does have an interest in effective family dispute resolution. That is why we have a Family Court. That is why in 1980 the Government established a Family Court. Everything this bill does runs counter to that notion and that is why we are opposed to the bill.