O'Rourke Denis: Third Readings —Text is incorporated into the Bound VolumeO'Rourke Denis: Third Readings —[Sitting date: 19 September 2013. Volume:693;Page:13569. Text is incorporated into the Bound Volume.]DENIS O’ROURKE (NZ First): I want to go through the stated aims of the original Family Court Proceedings Reform Bill and comment on the outcomes in these 10 amendment bills arising from it. Firstly the aim was to encourage faster and less expensive resolution for broken families who have issues to resolve concerning the custody and care of children by requiring parties to participate in the new family dispute resolution process instead of having to go to the court for determination unless necessary especially in cases of family violence. This had potential but has been spoilt by the many other provisions of the reforms.Secondly lawyers were not to represent parties in family dispute resolution but may give initial advice if on legal aid or if paid for privately of course. The problem here is that too few people who will need it will qualify for legal aid. The threshold is far too tough. So some will be well supported—those who do qualify and those who can afford to pay for a lawyer privately—but there will be a large number who fall between these two situations and that is the problem.Thirdly the Family Court was to focus on matters genuinely needing a court decision where protection of vulnerable people and children would be prioritised. Ihave no problem with that but has this been achieved in the legislation? The real issue is whether the alternative family dispute resolution system as set up in the legislation has been set up well enough to take the court’s place. I have no confidence that that will be the case for far too many people.Fourth parties were to take responsibility where possible for their own arrangements concerning the care of children. That sounds fine but the issue here is not so much a statement of the principle of self-responsibility; it is the fact that people do need help through these systems. The worst aspect of these reforms is that the Government is not funding sufficient counselling before a dispute matures in order to make self-responsibility practicable as a way of proceeding in far too many cases. As I have already said the test for legal aid to be provided is far too tough.The point is that there are areas of significant legal challenge to be dealt with by parties who cannot be expected to fully understand them—too many for the Government’s “no lawyer” provisions in these amendment bills. The Government just does not care about this. It thinks saving money is more important. This is a second-class justice approach and the Government cannot now pretend that it is anything else.Fifth the original intention was to try to reduce the exacerbation of family disputes by making it not so easy to get to court—because legal proceedings often make relationships worse—but with the court still there as a backstop. Not only is it not so easy to get to the court now but there are significant barriers to parties in the system as a whole. As it has turned out the legislation will exacerbate rather than reduce areas where there is a power imbalance by forcing parties into processes where one party will have the advantage of representation or advice and another will not.This is not an improved system; it is a worse one. It is all very well to have a simplified and cheaper system but this will be at the expense of the equality of the parties in the system and it therefore risks compromising the system as a whole reducing the success rate and damaging the outcomes for the very people—the children—whose interests the legislation says are to be paramount.Sixth the legislation would seek to be more responsive to victims of family violence. The legislation does expand the definition of psychological abuse and it increases maximum sentences for this from 2 to 3 years and improves the delivery of mandatory non-violence programmes. These parts of the reforms are worthwhile—probably they are the only parts in that category.Seventh the Government was open about its main intention to make the Family Court more efficient and cost-effective. It was always clear that the major objective was in fact to save money and this permeates the reforms from start to finish. Sadly this will as I have already said be at the expense of a fair and effective system that parties will have genuine access to and be able to use effectively.Eighth and last the last of the stated aims was to speed up court applications by reducing the court’s rapidly increasing workload. The reforms may well speed up the Family Court’s workload but they will not necessarily speed up the system for the parties overall. In the end despite a very large number of amendments having been made to the bill as originally introduced in New Zealand First our reservations and our concerns have certainly not been met. By far the biggest concern for us was the reduction in the use of lawyers for the parties and of lawyers appointed to represent the children and secondly the reduction in the availability of legal aid which is now available to only a limited degree prior to but not during any mandated dispute resolution process and if the dispute goes before a judge.New Zealand First does not agree to penny-pinching of that kind resulting in a lack of adequate legal representation and with that severely reduced legal aid entitlements. As a fundamental principle of justice parties with a reasonable need not theregulations should decide whether they need a lawyer. Legal aid for advice before family dispute resolution is free for those under the income threshold for legal aid estimated at about 60 percent of participants so most parties are already legally aided out of necessity. But the availability of legal aid should not be the basis upon which parties decide whether they will have a lawyer or not and there will of course be about 40 percent who may be unable to cope without legal aid. Although family dispute resolution is likely to be less expensive than hiring a lawyer and proceeding to a defended hearing in the court these requirements are so tough that many people will simply not get a lawyer when they really need one so there is a real problem of power imbalances being created as a result.These reductions in legal representation and legal aid are the main reason for New Zealand First opposing the legislation. These reductions are likely to be a false economy anyway because the costs in other areas are likely to increase. Fundamentally if the quality of the process is compromised the resolution will be illusory resulting in another dispute later. Another particular reason for opposition is that the legislation prohibits the court appointing a lawyer to represent the child unless it is “necessary”. The concern is that lawyers would no longer be involved in the initial stages of proceedings under the Care of Children Act. The problem is that the legislation requires the court to have “concerns for the safety or well-being of the child;” and to consider an appointment necessary. That is far too tough. It should be the other way round—the court should appoint a lawyer unless it finds that it is unnecessary to do so.The Government says that parents are expected to represent the best interests of the child in the process but in fact many are actually not able to do that especially in the stressful situations they find themselves in. New Zealand First would have liked to see the fully Government-funded counselling service reinstated—before disputes mature. Not all families will break up if they get counselling in that way.Finally we think that the imposition of interest on legal aid will cause hardship and serious hardship which are the grounds for the legal aid agency setting aside the requirement to pay interest. It is a very high bar—far too high—and low-income people will suffer. And 8 percent is simple Government profiteering. Legal aid is paid for through taxation. The Government should not be charging interest at all on funds from these sources for these public purposes. The State should make a contribution. Charging interest is objectionable and wrong in principle and 8 percent is nothing less than disgusting as an approach to legal aid. The State is not a banker. It should be providing a public service. For all these reasons New Zealand First will certainly vote against this legislation.