Clendon David: Family Court Proceedings Reform Bill — In CommitteeText is incorporated into the Bound VolumeClendon David: Family Court Proceedings Reform Bill — In Committee[Sitting date: 03 September 2013. Volume:693;Page:13217. Text is incorporated into the Bound Volume.]DAVID CLENDON (Green): I am pleased to take an initial call at this stage. It was interesting to hear the Minister of Justice’s comments some few minutes ago. They were a very useful summary of what I consider to be the mythology that has grown up around the Family Court and the various issues and problems that are associated with it. I think it is the overstatement of those problems that leads me to the language of mythology. Like all good myth there is enough of an essence of truth in there to make it almost credible but it is grossly overstated. That overstatement is used for a very dramatic a very far-reaching and I think a very ill-conceived set of changes to the court and the court processes that will resolve some of the undoubted issues that have emerged some of the difficulties with the court but at great cost—at the cost of making vulnerable people more likely not to get good service from the court and of exposing children and indeed some of their parents to considerable danger at some points.The language I was referring to in terms of the Minister’s contribution was about a budget blowout. Yes indeed there was an increase in spending but it is interesting that some of the groups that sought to get a little bit more analysis a little bit more guidance about how that all broke down and how it shaped up found significant barriers in their way. We have yet to see a comprehensive analysis of this so-called budget blowout. We heard reference to highly paid lawyers and counsellors as though it is their fault. In fact again that is not sustainable in real terms. We heard literally hundreds of lawyers presenting. We heard counsellors. We heard other professionals who work in the Family Court. Frankly none of them struck me as being motivated by this supposedly very lucrative place called the Family Court. Lawyers who want to make lots of money are very ill-advised to go into Family Court work. We know this. In fact for that reason some of the larger partnerships are actually discouraging their partners and their associates from engaging in family law. It is not about people using this as a gravy train least of all the professionals.We heard a lot about the trivial cases that come before the court. And yes I have witnessed that personally—not at first hand I am pleased to say. But we know that yes people have used and misused the court to continue their domestic battles by other means to argue over very trivial issues often at the cost of the children involved. But these are the minority of cases. We know that the large large majority of New Zealanders whose relationships fail do resolve their issues internally. We have heard a great deal about the need to get the State out of these private matters and to leave it to the parents to resolve their own problems. I agree with that. Most New Zealanders agree. And most New Zealanders achieve that. In fact as a percentage very few cases where the marriage or relationship breaks up do ever come to the court. Some do require counselling and benefit from that. I agree that that $9 million - odd—less than $10 million—is money very well invested rather than spent.Most couples do resolve their issues. By definition the cases that come before the court are the hard cases. They are the ones where the individuals the couples—whoever is concerned—have not been able to resolve their differences. Yes we might stand in judgment and say they ought as grown-up adults to be able to do that but the reality is that many of them do not and cannot. In the course of trying to take away their opportunity to use the court as a battleground for their occasionally trivial issues we are also taking away that opportunity from people with very deep-seated very real serious issues about safety about the uneven power within relationships. All of these are matters that are very serious and they need to be treated as such. In the reforms proposed to the Family Court proceedings we see that we are throwing out an awful lot of babies with the bathwater—and I do apologise for the inevitable cliché but there you are.There is a great deal at stake here. Again it is not to say that the court is not in need of reform. It is a 30-year-old institution and there are very few 30-year-old institutions that cannot stand some improvement in terms of process. Initially there was a very good analysis of what that was and where it might go. But things did go astray very clearly. When you get groups like judges like lawyers like counsellors like many many people who came to us who had had dealings with the court—some of them having had very good experiences in the court others having had very unfortunate experiences—we heard about the breadth and depth of the issues the court does confront.Clearly the legislation is about the safety of children. Part 1 of the Family Court Proceedings Reform Bill amends the Care of Children Act. Clause 4 talks about the child’s welfare and best interests needing to be paramount. That is as it should be. I say with absolute confidence that nobody who sat on the Justice and Electoral Committee nobody in this Chamber would dispute the importance of protecting children. Their safety and well-being ought to be paramount and it is a good thing that that line is in there. There was considerable debate however in the select committee—good debate principled debate—about the removal or otherwise of sections 58 to 62 of the Care of Children Act the so-called Bristol clauses which were seen to offer another layer of protection where there are allegations of violence against children. Personally it was a very difficult decision. I know that our party other parties and members of the select committee also struggled with the proposition in clause 14 of the bill to remove those sections. There was a very good analysis from the Law Society that spelt out the pros and cons and determined that we could do without those sections that there were some negative aspects in terms of cost in terms of delays and in terms of the separation of parents from their children which later proved to be unjustified. Some of the language in new section 4 and indeed new section 5 in clause 4 around principles related to childwelfare are seen as a replacement and sufficient to ensure the child’s interests are paramount.But I make reference to Supplementary Order Paper 254 in my name where I highlight that there is a possible conflict in some of these principle clauses particularly when we see that there is a strong proposition that members of the child’s family groupwhānau etc. should be involved in the child’s ongoing care and that the child should continue to have a relationship with both their parents. But we also acknowledge that there are situations where being with family is the last place that a child should be because there is danger within that context. I see within the principles and indeed with new section 4 some potential conflict where judges or others might be obliged to try to balance this notion of the paramountcy of the protection of the child with the very compelling proposition that families should continue to be involved in the care and treatment of their child.I do think that this proposed amendment goes some way to removing that potential for conflict for uncertainty. It spells out that in every situation if there is any sense that we could make a call one way or the other the paramountcy of the safety and interests of the child must be at the top of the hierarchy. Those principles could be read as a hierarchy they could be read as having equal weight and I do think we need just to remove that potential for conflict that potential for uncertainty. I do think that is what the Bristol clauses were originally in place to do—to ensure that we did everything we could to protect children from that situation that could end in that ultimate tragedy which of course the Bristol case was.So we do see value in the proposition in this Supplementary Order Paper and I encourage other members to support it and look at it. It is not intended to be a political statement. It is not intended to second-guess any of the negotiations or the discussion that occurred in the committee. It is a genuine attempt to ensure that no judge—nobody—is obliged to make that call about which of these principles is at the top of the heap. It makes it absolutely certain beyond any uncertainty that the welfare of the child the safety of the child must be paramount. I think I will leave it at that for this contribution and look forward to discussing this further.