Benson-Pope David: Amended Answers to Oral Questions — Question No. 4 to Minister; Family Courts (Openness of Proceedings) Amendment Bill — First Reading 
Benson-Pope David: Amended Answers to Oral Questions — Question No. 4 to Minister; Family Courts (Openness of Proceedings) Amendment Bill — First Reading 
[Volume:618;Page:13885] 
Hon DAVID BENSON-POPE (Minister of Fisheries) 
: 
 This bill would require Family Court sittings to be open to the public and enable any person to publish reports of proceedings. The current restrictions on public attendance and reporting are intended to preserve the Family Court as a forum where parties are encouraged to resolve their own differences wherever possible. 
As the House will be aware the private nature of the Family Court has been criticised in recent times. Continuing criticism of the court is a serious issue and risks undermining public confidence in it. Some of this criticism has unfairly labelled the Family Courts as secret and blamed Family Court Judges for that. This has been clearly detrimental to the court’s public image. Although openness in courts is a fundamental principle there are situations where other important principles also compete. The Family Courts are such an example. Decisions on the openness of Family Courts must take into account the need to maintain a forum where the frank discussion of highly personal matters can take place. Many matters involve private facts and material and parties or witnesses may be reluctant to give evidence in public. The law must not discourage people from bringing proceedings because of concerns about their personal affairs being publicly exposed or enable one party to force an unjust settlement by exploiting the other party’s concerns about public exposure. 
Disputes in the Family Courts often involve children and it is essential to consider how any changes may affect them. There is widespread recognition that the vulnerability of children means that they often require special protection. In its recent report the Law Commission confirmed the need to protect children from public exposure of court disputes in which they are involved. The experience of the Family Court in Australia suggests that allowing public attendance does not contribute in any meaningful way to greater openness of proceedings. The Family Court in Australia has opened its proceedings to the public since 1983 although restrictions on the publication of details that might identify the parties remain. There has been no reduction in litigation and there continues to be allegations of judicial bias and dissatisfaction voiced by some interest groups. 
I do not support this bill passing to a select committee as it does not strike the right balance between open justice and the needs of parties and children involved in family disputes. This bill states that its objective is to require Family Courts to be transparent and open. I agree that there needs to be some discussion on the best way to ensure transparent decision-making in family proceedings. The important question is how to achieve that while simultaneously protecting the interests of children and vulnerable persons and maintaining the Family Court as a forum that promotes frank discussion of personal matters. This question has been considered recently by the Law Commission in its report  
Delivering Justice for all: A Vision for New Zealand Courts and Tribunals 
 and by the Government in the Care of Children Bill. 
In its report the Law Commission has come to a different conclusion from the one contained in the bill. The Law Commission’s report is the result of extensive consultation including public submissions and two discussion papers. In contrast to this bill the Law Commission does not support public attendance at all family proceedings. The commission considers that the general approach in the various family law statutes to public attendance represents a sensible balance and recommends that family proceedings that are currently closed to the general public should remain closed. 
The Law Commission does however make a number of recommendations aimed at addressing concerns about the transparency of decision-making in family proceedings. Its recommendations include: allowing accredited media to attend all family proceedings; removing restrictions on reporting of family proceedings so long as identifying information is withheld where proceedings involve children or domestic violence; and allowing the courts to permit people with a genuine interest to attend the proceedings at the request of a party. The Law Commission’s recommendations represent a significant shift towards openness for some family proceedings but this shift is markedly different from the type envisaged by this bill. 
The Principal Family Court Judge has indicated his support of the Law Commission’s recommendations. The recommendations are also largely consistent with initiatives in the Care of Children Bill. That bill extends attendance at guardianship proceedings by allowing people who took part in earlier counselling or mediation to attend hearings. The bill also allows other people to attend proceedings with the judge’s permission and enables wider publication of guardianship proceedings. Everyone will be free to publish accounts of Family Court cases so long as the identity of the families involved is not disclosed. 
The Care of Children Bill is currently before the Justice and Electoral Committee. I understand that that committee intends to report the bill back with changes recommended to allow accredited media to attend hearings as of right and to enable parties to request that other support persons attend hearings. These amendments will bring the Care of Children Bill fully into line with the Law Commission’s model of openness. 
There are obviously a number of other family law statutes that need to be considered in light of the Law Commission’s recommendations. The Ministry of Justice is currently analysing the Law Commission’s report— 
Dr Muriel Newman 
: I raise a point of order Mr Speaker. It appears to me that the Minister is talking about matters that are currently before a select committee. The details of the Care of Children Bill have not been reported back to the House yet the Minister is standing here right now telling the House what is in the new bill. That is a breach of privilege. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I thank the member for her contribution. If it is a breach of privilege of course the member has the opportunity to take the resultant course of action if she wishes to do so. 
Hon DAVID BENSON-POPE 
: The Ministry of Justice is currently analysing the Law Commission’s report and a formal Government response to the report is due in September. 
As a vehicle for law change this member’s bill is also fundamentally flawed. The bill contains a general clause to allow public attendance and reporting of proceedings. But the law about openness of family proceedings is contained in various Acts under the jurisdiction of the Family Court. The bill does not contain any consequential amendments that would need to be made to each of these Acts. Nor does the bill consider the wider impact of the individual Acts. For example under the Guardianship Act of 1968 and more clearly under the Care of Children Bill any decision must give priority to the welfare and best interests of the child. Stress associated with publicity can have harmful effects on children who are at the centre of disputes. 
The bill is also restricted to proceedings in the Family Courts whereas the rules in the existing law are not confined to those taking place in a Family Court. Under the existing law the rules remain the same if cases are appealed to the High Court or to the Court of Appeal. This bill would provide two different standards depending on which court the proceedings were heard in. For all appeals from the Family Courts the existing restrictions on attendance and reporting would remain. 
I welcome the opportunity for debate on how better to ensure transparent decision-making in family proceedings. However the policy and drafting of this bill are short-sighted and fail to appreciate the true nature of the issue. The Law Commission’s report and the Care of Children Bill are more appropriate vehicles for legislative change in this matter. For those reasons I do not support the bill going to a select committee.