Care of Children Bill — First Reading 
Care of Children Bill — First Reading 
[Volume:609;Page:6668] 
Care of Children Bill 
First Reading 
Debate resumed from 24 June. 
Madam DEPUTY SPEAKER 
: I call Metiria Turei. 
DAIL JONES (Junior Whip—NZ First) 
: 
 I raise a point of order Madam Speaker. The usual ruling is that the third speaker in a debate is from a Government party either the Labour Party or the United Future party and a New Zealand First member is the fourth speaker. I understand that it is possible for United Future or for the Labour Party to concede its position as to its speaker. If I am informed by the Labour Party or by United Future that that is the case obviously we will not get the call. However I want to make that clear so that we do not lose our position in this situation. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 Yes indeed I can confirm that the Labour Party has conceded its speaking slot to Metiria Turei. 
DAIL JONES 
: It would have been nice to tell us that. 
METIRIA TUREI (Green) 
: 
 The Greens are very pleased to support this bill going through to the select committee. However I advise the House that I will be moving an amendment to the Minister’s motion: that the bill be referred to the Justice and Electoral Committee and not to the Government Administration Committee. As I have said the Greens are very pleased to support the bill. We are delighted with a number of its provisions. We will also be advocating for some issues in the select committee which we consider is the best place for those discussions to occur. 
The bill assists the members of a family that suffers a break-up that cannot be amicably resolved between the various parties. About 90 percent of families that for some reason or another do break down are able to resolve those sorts of issues without recourse to the courts for assistance. However when the family does need some assistance this bill will give it better access to justice for all members of the family—the child and the adults who surround that family. We are very pleased to see that the emphasis of the bill is on the best interests and welfare of the child as the first and paramount consideration. It is essential that children’s interests highly influence the decisions of the court. 
The bill explicitly addresses concerns raised by many fathers in New Zealand and in the community that the Family Court is biased against them. It does that first by expressly stating it must not be presumed that placing the child in the day-to-day care of a particular person will because of that person’s sex best serve the welfare and best interests of the child and then by providing that a biological father will be a guardian automatically if he is married to or living with the mother of a child at any time from conception to birth or if his name is on the child’s birth certificate with his and the mother’s consent. We consider those to be very good provisions in the bill. 
We are also very pleased that the bill will treat same-sex couples in the same way as heterosexual couples are treated. For example guardianship for 16 to 18-year-olds will end if the parents have consented to a de facto relationship the definition of which includes same-sex relationships. The bill provides for same-sex couples to have access to relationship counselling in the Family Court—a service from which the current legislation excludes them. Of course the bill also amends the Status of Children Amendment Act 1987 so that where a child is conceived using assisted reproductive techniques with the consent of her partner the partner of the birth mother is deemed to be a legal parent of the child. That provision includes de facto and same-sex partners. Under the current law same-sex partners must seek guardianship through the Family Court if they want to legally clarify their parental responsibilities. That can be particularly unjust where the same-sex couple has raised children together for some time with each partner equally committed to the role of parent—a role that the current law fails to recognise. 
The Green Party’s sexual orientation policy supports the elimination of legislative barriers to the full participation of same-sex couples in society and the elimination of institutional discrimination against anyone who is lesbian gay bisexual transgender intersex takatapui or fa’afafine. The provisions of the bill are an important step towards the elimination of legislative barriers and institutional discrimination. The Green Party’s fundamental values lead us to promote an inclusive society. In our view the human family encompasses a rich diversity of ages genders generations ethnicities abilities and sexual orientations. The current Guardianship Act is tightly focused around the traditional nuclear family and that is simply not appropriate in an increasingly diverse multi-ethnic society. 
The bill does not create artificial families nor does it redefine genders but rather it recognises the diversity of families that do exist in this country and ensures that the best interests of the child guide the court’s recognition of the responsibilities of the adults who surround that child. Those adults may be the child’s biological parents or they may be step-parents same-sex parents grandparents and other near relatives. The bill clarifies their respective legal responsibilities to the child where the family for whatever reason breaks down. It is crucial that the close adults in the child’s life are clear about their respective responsibilities and that those responsibilities truly reflect the reality of the child’s relationships with those adults. No law that attempts to mend the damage from the breakdown of a family will fit each family’s circumstance perfectly. But this bill at least recognises the realities of children’s lives and the diversity of the families in which they live. 
There are some issues that we will want to address and to have considered in the select committee. There will be a greater load on the Family Court through this bill—for example in the court’s expanded jurisdiction over paternity orders in its specific role in preventing disputes and in its increased enforcement powers. The court will require greater resources in order to deal with those changes. The court’s capacity is already stretched and the efficacy of this bill will depend on the court having sufficient resources and skilled personnel to meet the expectations of the families that need to use it. 
There are also other principles that it may be appropriate to include in the bill—for example an objective that children should be able to maintain ongoing and frequent contact with both parents wherever possible. That issue as an example raises very real concerns about how legislation in such a sensitive area can best enable a child-parent relationship to flourish without unduly restricting where a parent may choose to reside. In the select committee other difficult issues like that will be raised and I look forward to hearing the views of the people who are most affected by this legislation. 
In conclusion I urge the members of this House to support the amendment that I will put forward and reiterate that the Greens are very pleased to support this bill going to the select committee. 
DAIL JONES (NZ First) 
: 
 This bill will be opposed by New Zealand First. As I read the bill it really has only one agenda. That is to continue the Labour Government’s agenda of destroying family life in New Zealand by introducing to the concept of family life things that normally would have been regarded as deviant behaviour in our society giving them some sort of recognition by statute and saying oh well now that that behaviour is recognised by statute it must be normal. As the  
New Zealand Herald  
so aptly pointed out on 11 June this bill is really only about same-sex partners getting the rights of parents. I have read the bill from my own experience of doing legal work in this area. I started in 1962 as a clerk in the destitute persons section of the Auckland Magistrates Court and worked on family law through the 1963 Matrimonial Property Act the 1967 legislation the legislation of the late 1970s—and I took part in enacting that as a member of Parliament—and then worked in practice again from 1984 until last year in the family law area. 
This bill really has only one new aspect about it and that is confirmed in my view by the family law section of the New Zealand Law Society in  
LawTalk 
 No. 606 of 30 January 2003. All that this bill really does apart from introducing the same-sex agenda of the Labour Party is to change the terminology for various matters in the procedures before the Family Court. Where we used to have a custody order we will now have a parenting order. Really that is about it. The guardianship provision stays the same as it is now. The rule defining guardianship is much the same as it was way back in 1926; the Guardianship Act 1968 was much the same as that. This bill with its reference to the child’s welfare and best interests being paramount is the same as the legislation was in 1926 and 1968. Nothing has changed insofar as that is concerned. The only thing that has changed is that instead of having a custody order we now have a parenting order. 
This bill—if it is passed—and other legislation such as the particular wording in the Families Commission Bill reminds me of the way that the family will be destroyed in this country. Many people thought that the concept of the family was here to stay would last forever and was unsinkable. But in many respects one is reminded of the  
Titanic 
. No one thought it would sink—it was unsinkable—but then it was driven into the wrong waters too far north and came up against an iceberg. As a rule with icebergs only one-tenth of an iceberg is above the water and it is the nine-tenths that is part of the hidden agenda that does the real damage. That is what we are looking at with this legislation today. On the face of it we have just the normal family law - type legislation. In reality we have a bill that is hidden there like the hidden nine-tenths of an iceberg intending to do damage to the unsinkable the  
Titanic 
 and achieving that end. That is what this legislation is intended to do. 
Apart from changing the terminology and apart from its emphasis on same-sex marriages there is really not much difference in practice under this legislation. Of course I would have hoped that if the Government intended to do something worthwhile it would do something about the situation that applies say in the Family Court with regard to orders and proceedings under the Domestic Violence Act of 1995—as referred to in clause 49 of the bill. But there is no change. There will still be an application to the Family Court an interim protection order and an interim parenting order. It will not be called a custody order any more; it will be called an interim parenting order. The mother will once again be granted interim custody of the child—as she is in 91 percent of the cases—on no evidence other than an affidavit which is never backed up by anything until 2 months later. She will be granted custody of the children and once again the father will be locked out from that custody. It is a great shame that this bill does not confront that issue at all. It reinforces it. This bill does nothing in practice in family law that does not happen today. All that we have are a few fancy names for it. 
Certain clauses of this bill are badly drafted. I look at clause 49(2). I think the reference to section 45 there should possibly be a reference to section 44—to children under 16 rather than to children over 16. That is what seems to be consistent with sections 12(1A) and 12(6)(a) of the Guardianship Act. So I believe this bill is badly drafted. We have seen the great furore that has developed over the dreadful way of setting out that a mother is a father and suchlike in clause 17(2) and that is all I will say about that. But that type of clumsy way of defining things indicates the rushed manner in which this bill has been put together to achieve absolutely nothing other than the Government’s agenda with regard to same-sex marriages. That is a great shame because for years lawyers in the family area have been waiting for this legislation to come forward in order to bring a ray of hope a ray of light a Shekina to us all in order to show us that something can be done in this area. 
 But this is a very difficult area. It will never be resolved by legislation. It can be resolved only by the people who are involved exercising a degree of common sense. It will not be resolved by the parties shouting at and abusing each other when they go to court and being encouraged by lawyers to shout at and abuse each other. They need lawyers who are prepared to aim at reconciliation and none of that can be achieved by legislation. We can have as much legislation as we like but we will not achieve what we want to achieve if people continue to shout at each other. 
One aspect of the bill that I think is useful and that I believe should be extended is clause 131(2) regarding the publicity that may be made available. That is a small step in the right direction but I think the select committee should consider the Australian legislation as it gives more publicity to what has been happening in the court. So often I found as a lawyer involved in a protection case that a father would come in and say he was really up in arms about receiving a protection order. About 80 percent of the time fathers did not want custody of the children but the whole thing becomes blown out of all proportion. About 20 percent of the cases are defended. I have defended protection orders at an early stage and have been successful. I was successful on one occasion when the judge stopped the case halfway through the hearing and discharged the protection order straight away. I believe the lies and the perjury that are committed in the filing of interim protection order applications are utterly disgraceful and if a little more publicity was given to the types of things that are said in some of those affidavits then I suspect the applicants would be a little more ashamed about those procedures. 
Of course the question of legal aid has been touched on. Members should not forget that now we will have the father the mother the lesbian side the homosexual side all the whanau and Uncle Tom Cobbleigh and all being able to lodge an application. The amount of legal aid that may be required to give effect to this bill is colossal. I am sure that the Government has not given full thought to that. There is not only the question of legal aid but of the time it will take to resolve these cases. In a family law matter—or in any other legal matter—the sooner that people can sit down and try to resolve it the better it will be. The longer a case lasts the more expensive it is the more bitter people become and the harder they find it to get over the situation. 
We passed an amendment to the Guardianship Act stating in effect that fathers should not be disadvantaged. Today fathers are grossly disadvantaged. I had a case a little while ago where the father was not given custody because the mother had said she would commit suicide and take the child with her. That was a disgraceful statement. Three psychologists had reported on the case before finally I took it over. It was a year before I could get it to a hearing. The father had been granted access to the child only if it was supervised and he had to sit through supervision of that access by Mongrel Mob people and suchlike. Finally we took the case to court and we had no problem in convincing the judge—it was the first time a judge had actually heard the case—to grant the father access to the child. It was too late by that stage to get custody. The few fathers who really want to do something are greatly disadvantaged in my view in that situation by this type of legislation. 
I do commend the Government on the last aspect of this bill Part 4 which inserts new Part 2 into the Status of Children Act. The new part deals with the new artificial human reproduction procedures. It is a brave move and I will be interested to see what happens. 
JUDY TURNER (United Future) 
: 
 United Future members would usually support the first reading of a bill with the intention of using the process of the select committee to deliberate on any concerning clauses and any submissions in greater detail. We would reserve the right to re-evaluate our position after the select committee had presented a report. However we have some fundamental concerns about this bill which means that United Future will not be supporting it. 
This bill proposes changes to outdated and loaded terminology such as “custody” and “access” replacing it with new terms like “parenting orders” that should lend themselves to a more preferred equal-parenting approach to the care of children. However United Future believes that this bill stops short of delivering to children more equitable parenting arrangements and instead just upholds the old provisions with new less emotive language such as the terms “day-to-day care” instead of “custody” and “contact” instead of “access”. The old winner-loser outcomes still exist but under a new guise. Not enough effective change has been made to enable both parents to have an equitable chance of being involved in the raising of their children. 
United Future would prefer a bill that provides clear guidelines regarding the use of the Family Court and family lawyers with an emphasis on an assumed cooperation between the parents and on an assumed equity between both parents. This approach differs slightly from Ms Newman’s shared-parenting approach which had a more enforced approach to equal parenting. We believe that forcing an unwilling parent to be involved in his or her child’s life is unlikely to be in the best interests of the child. However if both parents want to have significant contact with their children and where both parents are safe caregivers then United Future believes that it is in the child’s best interest that guardianship laws facilitate an arrangement that reflects the value to the child of having both parents playing a constant part in the child’s life. Arrangements should be made that are appropriate to the age and needs of each child. Those arrangements need to be flexible changing as the needs of the child change. 
The essence of this bill is guardianship and although we agree that an overhaul is needed to update legislation that deals with the care of children we have grave misgivings about what has been proposed in this bill. The Minister believes that the Family Court will screen inappropriate applications for guardianship but United Future believes that clear guidelines are needed to facilitate this vital decision-making process. As things stand step-parents have to demonstrate a greater long-term commitment to a relationship to legally get their hands on half the furniture than they do to gain guardianship over the children in the relationship. 
We believe that time frames must be included in this bill to ensure that a certain amount of time or commitment has been shown before a person is appointed as a child’s guardian. If an additional guardian is to be appointed then it is surely in a child’s best interests that some sense of longevity and stability be established—at least as long as is required for property rights. 
For United Future the issue surrounding the care of children is bigger than just the guardianship issue covered by the bill. A single piece of legislation never exists in isolation from the tapestry of law that undergirds life in Aotearoa New Zealand. United Future believes it is vital that a child’s identity is clearly protected. The bottom line is a matter of pure biology—that is every child has a mother and a father. 
United Future has already demonstrated that with the broad definition of “family”—which has been included in the Families Commission—we accept the diversity of relationships that surround the care of children. However we advocate that where possible every child should have access to both its mother and its father regardless of whatever care arrangements exist. With the onslaught of new birth technology and advances in medical research heritage is at risk of being overlooked neglected and even rejected. The arrangement made for the care of children should never override the long-term best interests of the child which surely include preserving the vital link to his or her parentage. Confusing the terms “mother” and “father” and in particular the feminine and masculine aspects of those basic family relationships is ill conceived. Care arrangements that deliberately withhold information or neglect opportunities for safe contact with the natural biological parent do not reflect a child-focused approach. This concern is not about judging people’s ability to be caring guardians but it is a concern about obscuring a child’s chance to have contact with a mother or a father because it does not suit the living arrangements of the adults in the family. This is not a child-focused approach. 
The bill does differentiate between natural guardians—the biological parents—and appointed guardians. That is fine but then in an apparent contradiction it allows for a non-biological adult living with the mother during any stage of the pregnancy to be given guardianship rights that are equal to that of the biological mother. United Future will not support this bill because our concern is not that additional guardians can and should be appointed but that in certain circumstances this can be done to the deliberate exclusion of biological parents. 
Dr MURIEL NEWMAN (ACT NZ) 
: 
 The ACT party will be opposing the Care of Children Bill. We are extremely disappointed that this bill is the result of 2 years of work done by the Government in response to two member’s bills that I introduced into this Parliament. I introduced a member’s bill proposing shared parenting as the predominant outcome of family law disputes and another bill to open up the Family Court. This country is one of the very few in the world that have a secret court in an area that affects people more than anything else—that is children and families. It is about time New Zealand moved into the new age and recognised that justice has to be seen to be done. 
In the last Parliament we called for the Family Court to be opened up and for shared parenting to be introduced but the Government along with other parties in this House voted both those bills down. It told us to wait that it would introduce legislation to sort out the issues. It is a very disappointing day to be standing here looking at the result—this Care of Children Bill. One realises that this legislation is not only a dog’s breakfast with massive complexity and superficial changes—changes to words and terms that actually do not mean anything—but designed to meet a feminist agenda within this Parliament. It is paving the way for same-sex marriage and same-sex adoption. It is a bill that totally undermines the traditional family unit. It talks about family diversity—and I do not think that any member of this House would say we do not have other types of family in New Zealand today. But a Government has a responsibility to understand that the most successful child-rearing institution ever invented is the traditional nuclear family with a mum and a dad who are married. If we care about kids and if we care about our children doing well then we must support the sort of family unit that in general ensures children do better. This bill does nothing of the sort. What is really disappointing is that it goes further. Not only does it undermine the traditional family but basically it redefines fathers as a drafting error. If dads—separated fathers who are excluded from the lives of their children—think they have had it bad by the time this bill goes through they will have almost nothing. 
Like previous speakers I have talked to many non-custodial parents who cannot even get to see their children. They are whacked in the pocket with huge amounts of child support payments and they cannot even see their children. If they are lucky they will see them maybe once every 3 weeks under a 1-hour supervised access visit—and these are people who often have done absolutely nothing. But their partners have used the system to be able to have power over them and exclude them from the lives of their children. This Government knows all about that issue. Its members were lobbied so hard in the last Parliament that they cannot ignore the fact that so much hurt and anguish is going on out there. This bill has delivered no hope at all to those families and non-custodial parents. 
The real problem in New Zealand is that in this whole area of family law we are now going in exactly the opposite direction from our nearest ally Australia. I know we like to have a healthy relationship of competition with Australia but we have to admit that it is a pretty successful nation. In the area of family law it realised the damage being caused to children and sought to do something about it. Some years ago the Australians opened up their Family Court. They said that an open court meant that families could see what was ahead of them if they chose litigation. The majority actually decide to go through mediation so they do not have the endless costly battles that go on and on and damage children immeasurably. The number of false allegations plummeted—because how can a person make a false allegation when the other partner the family and the grandparents are all sitting there knowing that he or she is lying? 
So Australia has justice in the Family Court and it protects the identity of individuals. It exercises name suppression in general. I see nothing wrong with our Family Court in New Zealand using that model. We have tried so hard to get the Government to look at it yet the provisions in this bill are Clayton’s provisions. It is not opening up the Family Court. The Government is saying: “Yes sure you can have some more family members along.”—and that is good; I am not putting that down—and: “Yes we will publish some of the outcomes of the proceedings.” But they will be censored. We need proper open justice in the Family Court. All of this stuff about protecting identities can be fixed with name suppression. Family Courts around the world have done that. That is the first thing. 
This bill goes in the opposite direction. It pretends to be opening up the court but it does not do anything like it. If members look at the provisions that deal with the fiscal implications they will see that an extra $8 million a year will be spent on more judges more administrators more counsellors bigger database systems more supervised-contact providers—just name it! It is making family law more complex and more costly. There will be a huge increase in legal aid. Is that what New Zealanders want? The answer is no. They want family law to be simpler. They want people to be able to resolve their differences in a friendly fashion not through litigation. This bill will make our family law industry which is already one of the biggest in this country even bigger. 
I say to the Minister sitting over there and to all the other Government members that what they have done in this bill is not right. I hope that the select committee has the courage to make some sensible changes. Today I tabled in the House a petition signed by 600-odd people asking that a select committee look at opening up the Family Court. All we want is for New Zealand to follow the Australian model which works so well. 
The second issue is that the bill fails to address shared parenting. Shared parenting entitles children in the event of a family breakdown the right to frequent ongoing contact with both their mother and their father. In New Zealand we have a presumption of sole maternal custody. Mums get the kids; dads are excluded. We know now because we have had this system for so long that within about 2 years about three-quarters of those children will lose all effective contact with the non-custodial parent. I ask whether we as a nation can afford to have all those children who have gone through the trauma of family breakdown lose the access and support of the other person in the world who loves them more than anybody else plus the grandparents. I say “No”. 
I have been heartened in the last week to hear that the Australian Prime Minister John Howard is saying that his Parliament will have a proper look at shared parenting in Australia. It is looking at introducing it as the predominant family law. I can tell members that if it does that then the outcome of family breakdown will be improved dramatically because in countries such as the United States Sweden and Holland where shared parenting is the law kids do better and families do better. I ask the Government to allow the select committee that considers this bill to look at what goes on in those countries. Everyone will be surprised to see that the outcomes for children are better. 
This bill is called the Care of Children Bill and I that think the House has a responsibility to tackle what is a tough issue. The Government has not done a good job on the bill but I know that with our parliamentary process we can with the will of Parliament improve things. We can make things better. I appeal to Government members on the select committee to take heed of the submissions that come in. Where they think that perhaps the drafting of the bill has gone in the wrong direction then maybe they can change it and maybe New Zealand will end up with family law outcomes we can be proud of—outcomes that will do justice to our children to our families and to this Parliament. 
DAVID BENSON-POPE (NZ Labour—Dunedin South) 
: 
 I am pleased to rise very briefly in support of this legislation which is long overdue. I would like to join my colleagues on this side of the House and congratulate the responsible Minister for some very far-sighted legislation. 
Debate interrupted.