Family Courts Matters Bill — Second Reading 
Family Courts Matters Bill — Second Reading 
[Volume:646;Page:15586] 
Family Courts Matters Bill 
Second Reading 
Hon ANNETTE KING (Minister of Justice) 
 on behalf of the  
Minister for Courts 
: I move  
That the Family Courts Matters Bill be now read a second time. 
 The Family Courts Matters Bill is an omnibus bill that extends the openness of the Family Courts introduces non-judicial mediation makes a number of other useful improvements and tidies up legislation designed to improve processes and procedures in the Family Courts. 
A number of further changes to the bill were considered by the Social Services Committee and I acknowledge the committee’s work which has resulted in a number of useful improvements to the bill. The bill extends the openness of the Family Court along the same lines as those provided under the Care of Children Act. It was proposed that anyone could publish reports of proceedings unless a child or a vulnerable person was involved in the proceedings. A provision then allowed a child or a vulnerable person to publish a report provided the publication did not include identifying information on other children or vulnerable persons. After considering submitters’ concerns that children and vulnerable persons may be manipulated or may not understand the longer-term implications of their decision that provision was removed from the bill and will remain a court decision. 
This bill amends 12 different Acts. When the bill was introduced there were separate provisions in many of those Acts dealing with who could report on proceedings and general provisions in the Family Courts Act or other Family Court legislation. The reporting provisions are now to be consolidated into the Family Courts Act which will make it easier for people to find and comply with them. Another change to the bill made at the select committee was to split the counselling and non-judicial mediation provisions between the Care of Children Act and the Family Proceedings Act. It is now proposed that the new and existing provisions for counselling and non-judicial mediation in respect of care arrangements for children are to be solely in the Care of Children Act and those regarding relationship counselling are to be in the Family Proceedings Act. 
For the purpose of reporting proceedings the definition of “child” is amended to refer to people under 18 years of age as the definition was not intended to refer to someone between the ages of 18 and 20 who is married in a civil union or in a de facto relationship. 
The bill extends the existing provisions in relation to counselling through the Family Court to cover others involved in a child’s care such as grandparents or other family members who may now take part in counselling. The bill also introduces non-judicial or family mediation as an alternative means for parents to resolve their disputes without judicial involvement. Research tells us that mediation reduces conflict and enables families to reach agreements that are likely to be more flexible and durable than judicial decisions. Support people are able to attend the mediation and children can also attend with the agreement of the mediator. 
During the select committee process the Government considered the need for counselling for children and it made several recommendations to the committee. The committee agreed to all the Government’s proposals and those recommendations are now part of the bill. Three new provisions take a targeted approach to the provision of counselling for children. The first of those is to take better account of the views of children. The bill proposes that where parents agree children may speak with a counsellor about what is important to them and what they would like their parents to know when they are making decisions about their care. The participation of children in this will be voluntary as not all children will feel comfortable about participating in this process. The second type of counselling for children is to help those children who are taking part in family mediation. Children will be able to speak with a counsellor prior to mediation to help them to formulate and clarify their views. Finally counselling may be necessary in a small number of cases where the child has an exceptional need of assistance in accepting the terms of a court order or would have difficulty in complying with the order. 
I want to raise one matter that is outside the scope of the bill but that has attracted some interest. It is the question of whether parentage testing to establish paternity should be compulsory. As the Government has said previously paternity testing is a complex issue. There are questions about the extent to which adults and children should be forced to undergo a DNA test against their will about the counselling and support that is needed to help people to make decisions to undergo testing and deal with any adverse consequences from a parentage test and about the impact paternity testing has on informal adoptions. The Government has said it supports compulsory parentage testing in principle subject to further policy consideration. However the Family Courts Matters Bill is not the appropriate vehicle to implement what would be a significant policy change. I note that Judy Turner has recently introduced her Family Proceedings (Paternity Orders and Parentage Tests) Amendment Bill and members will have the opportunity to consider parentage-testing issues in that context. 
I also take this opportunity to signal my intention to introduce two Supplementary Order Papers. The first addresses two matters related to Family Court - directed supervised contact. The second enables the appointment of senior Family Court registrars. Government funding for supervised contact was introduced in the Care of Children Act 2004. The Supplementary Order Paper inserts new sections in the Domestic Violence Act in order to enable supervised contact to be funded in the same way as it is under the Care of Children Act. The other proposal is to allow Family Courts to approve supervised-contact providers in order to meet the demand for services in their region. 
The second Supplementary Order Paper enables the appointment of senior Family Court registrars. This change has arisen as a consequence of submissions from the Law Commission and Family Court judges. Currently judges spend a significant amount of time performing administrative work deflecting their ability to concentrate on case management and other matters requiring their expertise and authority. I propose that a new role is established called the senior Family Court registrar. Senior Family Court registrars will hold quasi-judicial powers that will be broadly set out in the Act with detailed provisions set out in regulations. Any appeal from any decision of a senior Family Courts registrar will be heard by a Family Court judge. Senior Family Court registrars are expected to have a positive impact on the performance of the Family Courts by alleviating current pressures on judicial resources and ensuring applications are dealt with more quickly especially in the smaller courts. 
The Family Court emphasises the importance of parents putting aside their grievances with each other in order to ensure the best long-term outcome for their children. The courts already provide a range of free services and information to assist parents to resolve disputes themselves including counselling programmes and mediation. I am confident that this bill will further enhance the Family Courts and improve public understanding of how they operate by making it easier for people to publish reports of proceedings while still protecting the privacy of children and vulnerable people. It will support people to resolve their disputes through counselling and mediation and to take better account of the needs of children by involving them in counselling and mediation where appropriate. I commend this bill to the House. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 I rise to speak on this very important Family Courts Matters Bill which the National Party is pleased to support. I note that in the first reading debate the Hon Rick Barker described this bill as pertaining just to technical changes. That is very far from the truth; in fact there are some profoundly important changes relating to the openness of the court. 
I believe that the Social Services Committee worked very well. It is always a pleasure to help keep the Labour Government from erring and straying unnecessarily and some very positive results occurred through the select committee members working together on this legislation. 
It is important to reiterate that the bill is a response to criticism from individuals interest groups and the media about the closed nature of the Family Court. I think it is relevant to once again say that much of what the bill incorporates is a result of two Law Commission reports:  
Dispute Resolution in the Family Court 
 released in 2003 and  
Delivering Justice For All 
 released in 2004. I note that an important balance is required and this was made clear in the opening statement of the first reading debate. Any change to the openness of the Family Court must strike a balance between open justice and the privacy of the individuals children and families involved. 
With regard to children’s privacy I understand that the Australian system is entirely open and that individuals—particularly vulnerable children—can from time to time be exposed to very serious intrusions on their privacy. On the other hand the English Law Commission has stated: “What is more serious is that the parties and more especially their innocent children whose identity is frequently revealed as a result of the details which can be published suffer the disturbing experience of having the most intimate details of the family life exposed. While it may be said that the parties have only themselves to blame no such argument can apply to the children whose privacy the law takes pains to protect in other cases.” 
The select committee has reported the bill back with suggested amendments including protecting the disclosure of identifying information where a person under the age of 18 years is involved and broadening the definition of “vulnerable person”. These amendments are very important to what the bill is trying to do. 
I must say that one of the very powerful submissions to my mind came from the Principal Family Court Judge Judge Peter Boshier. He noticed how very important it is to have qualified expert counsellors psychologists and mediators. He noted that all of these people should be registered that they should be subject to continuous quality control and that there should be high standard of professional quality. He noted that judge-led mediation should be removed which was very interesting to hear. 
Judge Boshier pointed out that judges are able to sort out the legal aspects of disputes but that the number of cases in which judges try to sort out who gets the child for Christmas Day swamp the courts—and indeed the courts are very swamped. He said that it is much better to have a well-trained mediator of high quality for those cases. He pointed out that the courts at present are given only 1½ hours for this process whereas the mediation services have about 6 hours available. 
Judge Boshier cited one very poignant case of a child aged 12 who said that he never wanted to see his father again. Judge Boshier took the effort to try to ask why the child had this response but he could not find out through mediation or through any other way. Judge Boshier asked the boy whether if he met his father on the footpath he would say hello and the boy said: “No I would cross the road.” The response from the judge was: “This is particularly sad; in fact profoundly so.” This is the sort of case where it is so important to have high-quality mediation and counselling available to individuals in the Family Court so that at least individuals have the opportunity to be able to express their feelings if they wish to. 
I will not speak much longer on this bill although there are many other points that I would like to make. One is the DNA testing one and I think that Parliament should address this matter in the future. I just want to relate a experience that I had personally as registrar at National Women’s Hospital when I was asked to go out to the Pukekohe Family Court to give expert witness evidence on a case where seven young men were being held responsible for having possibly fathered a child. As it happened only one of them had any assets to his name and the ability to be able to support this woman and child. On my reckoning of the dates at the time he was the least likely to have been the father but unfortunately the judge nailed him as the one who was responsible. In this day and age when we have DNA testing available it is highly important that we use the new technology. 
I will finish on that note. I will just say that National is pleased to be able to support the Family Courts Matters Bill going to the Committee stage. 
Hon STEVE MAHAREY (Labour—Palmerston North) 
: 
 It is good to have an opportunity to speak in the House again. I will with the indulgence of the House begin with a couple of comments about the select committee process to pick up on comments that were made by Dr Hutchison during his speech. I have obviously just rejoined the select committee procedure after about 8-plus years away from it as a member of the executive and the observations I would make are these. I think the select committee procedure has matured quite a lot over the last 8 years. If people will think back to what we might call the bad old days of first past the post I can recall going to select committees and arriving to find that a number of members had brought their mail their papers or whatever they had decided to do because they felt that the select committee process was decided already because of the numbers that were on the side of whoever happened to be the Government. The Government members who were turning up knew they had the numbers and did not have to do anything and quite often they did not; that included walking out in the middle of submissions that people might be giving because they did not feel they needed to hear them. I remember saying to people at the time: “How can this be? We’re supposed to be professional people. We’re supposed to be doing a job of work here.” I was told by a chorus of people that the whole process was irrelevant anyway because the executive made all those decisions and that I should just relax. 
Now jump forward to today. I joined a select committee that Dr Hutchison is on and I found a pretty impressive process going on. It is well chaired by Russell Fairbrother. The leading person for the National Party is Judith Collins. We know that there are people on that committee who in other parts of their life would probably argue backwards and forwards about things but there is a culture in there that says we should do a job of work there because we are there to do that on behalf of the select committee. So we have people focusing on the issue; people have read the papers they ask questions and they are respectful to the people who have come along to make a submission. Those people feel well heard and go home happily. 
I think that is a great part of Parliament that I have rejoined. I would make just one plea. I think having got this far we should go further. I would hope that future Parliaments and their executives may decide to take the same pathway as the German Parliament and simply cut off the process of select committees from the executive to say: “You get on with your job of work. You have your own role to play and the executive will receive bills back and get on with them.” I know this is something that perhaps people who have come in during the MMP era would feel more sympathy for than those who were here during the first past the post era but I believe that as the balance of the House changes and more and more people are here from that time of MMP they will see the value in having select committees carry on down the road of doing more and more of their own work in the way that they appear to be doing now. I think it is a great transition that is going on; if it is given a little bit more of a shove then we will have very very professional activity going on in select committees. That will be appreciated by everybody once people get used to the independence of those select committees. So hopefully that will go on. 
Hon David Cunliffe 
: Well some are better than others. 
Hon STEVE MAHAREY 
: I can hear a member of the executive saying well with a few reservations and so on. 
Hon David Cunliffe 
: Sounds like it’s already operating that way. 
Hon STEVE MAHAREY 
: It is to a degree and that is why I am saying I am impressed by it. 
Chris Tremain 
: He’s impressed by it now that they’re on the other side. 
Hon STEVE MAHAREY 
: The member on the other side if I can say says: “Now that they’re on the other side.” Actually I used to argue it when I was in the executive as well for the very simple reason that I think if we have select committees that are neither fish nor fowl it causes them a little bit of a wobble. It also causes everybody else that little bit of a wobble—what does a select committee do; how does it relate to the executive? My plea is it should be independent in the way that the German system is and the executive then receives back the committee’s work and gets on with it. I think that would create the right kind of atmosphere for what we are trying to do. 
Let me come back to the Family Courts Matters Bill itself because as I said I thought the bill proceeded through in a way that was exemplary. We had good submissions we had good discussions and I hope we have ended up with something that takes this matter forward. It is a delicate issue; I have no reason to believe it will not be revisited for the following reasons. We know that people have come to all of our clinics and so on to talk to us about the Family Court because it is perceived to be too closed. When we meet someone like Peter Boshier we think the court is in very very good hands and wonder what people are on about. Members will have read Peter Boshier’s papers where he quite rightly defends the court against a great deal of criticism; and of course a good deal of that criticism has come— 
Dail Jones 
: Judge Peter Boshier. 
Hon STEVE MAHAREY 
: Yes sorry; Judge Peter Boshier is his full title. I am corrected by my friend Mr Dail Jones. Many of the critics of this are people who belong to men’s groups who on the whole are people who have come together because of their own bitter experiences around their own relationships and they translate that often I think a little unfairly into their criticism of the Family Court. They have some criticisms that they ought to make—I think we would all make them—but I think undoubtedly they go a bit far. In this bill we have to remember that we have to balance the fact that we want some more openness in the court but we also want to recognise that there are people here who are making criticisms that go a step too far in relation to the court. Also the court is dealing with extremely serious issues often—always in fact—dealing with children and often involving people who may have a disability of one kind or another as we were reminded in the select committee hearings. 
We have tried to arrive at a reasonable balance between openness and the need for privacy when it should be there so that we do not have open disclosure of somebody who is quite young for example. It may be said: “The child is 18. Let’s allow the disclosure. That’s a reasonable age for the child to be able to tell their own story.” But as someone else pointed out that child undoubtedly has a brother or sister who happens to be 11 and is that younger child to be put in a situation where his or her life story is being told when he or she is not really of an age to understand the situation or to defend his or herself? We need to make sure those privacy provisions are there. 
There are three other issues in the bill I would not mind just touching on because they are quite important developments I think. One of those issues is counselling. The issues that arise in the Family Court are almost without exception ones that are highly emotionally charged. By the time they get there anybody who has a connection with the family concerned is likely to be involved in some way; grandparents grandchildren—all sorts of wider networked people for the family will be involved. 
One of the things I like about the bill is that it extends the provision of counselling to a wider range of people and allows them to have access to that. Unless people have been through—or close to—these processes it is hard to understand the level of meltdown that a family can get into once it gets to the court process. The court process often focuses on the immediate family but there are many other people with a serious stake in a family by the time it gets to this stage of debate and they too often find themselves in situations where they do not cope so well and need to be able to turn to somebody—there is certainly nobody left in the family they can turn to because they are all busy arguing through the court process by this time and it has become quite bitter. I think extending the provision of counselling was a very good development on behalf of the Government and it has been well supported by the select committee. 
We talked for a while about mediation and whether we ought to have a situation where mediation was compulsory so that people were forced to go off and have a discussion. In the end the select committee came to the same conclusion that most of the submitters did—that it is impossible to have people go off to compulsory mediation when they feel this badly about each other. They should be offered the voluntary chance to go and do this with an experienced person. If they can be made to understand that by sitting and talking about these issues with experienced mediators allowing when it is appropriate their children to be part of that process they could arrive at an answer that will settle them and there is a real chance for some forward movement. But if they do not go voluntarily by the time they have got to the court process they are not going to do anything in the mediation process; they will just sit and wait until they can get back into court and have a legal go at each other once again. So hopefully people understand that the select committee was not averse to the idea that people would go off to counselling—it just felt that if it was not done by choice then nothing of merit would come of it. 
The last thing I have to say is this. When I was Minister I extended the payment for supervised access to families and I am pleased to see that we are extending it even further here. It is an extraordinary problem for families many of whom have spent every last cent on the battle with each other so that by the time they get to the point where they are having supervised access they find they simply cannot afford to carry out the kind of orders that have been set down by the court because they cannot even drive the car from Masterton to Palmerston North as one woman told me. That was because she could not afford a car and even if she did she could not afford to put the gas in it. She had spent everything on the process of getting the whole thing settled. 
Whatever happens it is our responsibility as a society to ensure that those orders can be carried out. In many ways I do not have a lot of sympathy with the parents by the time it gets to that point but I certainly have sympathy with the children and they should not be the ones who suffer from the activities of their parents. If the parents have bled themselves dry I still think I am happy as a citizen of this country that some of my money is spent on making sure those children can have access to their parents who no doubt love them—they may not love each other but they probably love their children and want to have access to them and those children deserve to have it. I am pleased to see that supervision being extended. 
I thank you Madam Assistant Speaker for allowing me to speak today and I thank the Social Services Committee. It is pretty heartening to see how this legislation can be treated. It has been done well. 
CHRISTOPHER FINLAYSON (National) 
: 
 I listened closely to that caring sharing speech from the member for Palmerston North. I have to say that I agree with him about the principle of cooperation at the Social Services Committee especially when one is dealing with extremely sensitive issues such as this where there is a balancing act which I will talk about in a few minutes. 
But I was less than impressed to hear towards the end of the Minister’s speech that some Supplementary Order Papers are proposed including a Supplementary Order Paper to deal with the role of senior Family Court registrars. I cannot understand it—and this is the second time I have said it this week: why is it beyond the wit of the Government and this Minister in particular to make sure that Opposition spokespeople get hold of the Supplementary Order Papers at the first available opportunity so they can be closely studied and so that there can be a sensible discussion? Earlier this week in the context of the copyright legislation—again very technical and important legislation—I received the Supplementary Order Paper on the morning of the debate. Quite frankly it is hopeless. If the Government wants cooperation not just in the select committees but also when bills come back to the House for debate particularly in the Committee stage then I suggest that it has to cooperate with the Opposition a little bit more and make sure that the Supplementary Order Papers are provided earlier than they are being provided at the moment. 
After I gave that little homily earlier in the week I heard that the Hon Paul Swain MP for Rimutaka said that that was simply the way it was done that it happened to them in the 1990s that we would have to simply get on with it and live with it and that if I am ever a Minister—and he hopes it will not happen during his lifetime—he would challenge me to make sure that this sort of thing does not happen again. I am happy to rise to that challenge. I give an undertaking to Mr Swain that if I am ever a Minister particularly dealing with matters such as this I will regard it as a very important undertaking to ensure that my Opposition number did have the Supplementary Order Papers at the earliest possible stage. 
On the face of it the idea of giving registrars greater responsibility is a very sensible measure. I for one have always believed that registrars not only in the Family Court but in other courts should have additional responsibilities in order to free up judges so that judges can concentrate as the Minister said on case management and hearing cases. So a little bit of cooperation on these matters would go a long way and I hope that I shall be able to see that Supplementary Order Paper very quickly. 
The second thing Mr Maharey said—and it is a very sensible point—concerns mediation. The concept of compulsory mediation is frankly oxymoronic. People cannot be compelled to mediate. I tried it in the context of settling a fisheries dispute that followed the settlement of the Maori fisheries matter in the early 1990s. I tried to get some people on the Chathams to a compulsory mediation; it did not work. The essence of mediation is that it is consensual and I completely agree with him that if people cannot be brought to the table to mediate by agreement then it is best forgotten. 
This is a very important bill and as Dr Hutchison said the National Party supports it. This legislation tries to address a very difficult balancing act because it is a fundamental principle of our courts that they must be open to all—not only to the participants but also open to the public. There are very few exceptions to that fundamental principle in the context of civil litigation. On occasion cases are heard in chambers as Mr Dail Jones would know. They are normally routine matters involving matters of law only so they can be brought before the judge without the need for members of the public to be present. On very very rare occasions there will be an in-camera hearing—for example if someone is giving evidence on a complex commercial matter a patent matter or something like that and the evidence if given in public would cause major harm. 
So that is the general principle and as I said it relates to civil litigation. It is much more difficult when one is dealing with family litigation because of the kinds of factors that Mr Maharey mentioned so a complex balancing act is undertaken. I think that this bill is a valiant effort to open the Family Courts to a little more sunlight while retaining the very real need to ensure that the welfare of children in particular is preserved. In many respects this is the most difficult sort of litigation. It is very sensitive stuff and one has to tread very warily. 
I am very much looking forward to the Committee stage because a number of matters are going to arise where I think we as legislators will have to spend a little bit of time and descend to the detail. Let me give members one illustration. New section 46D inserted by clause 9 talks about the “Duty of lawyers to promote reconciliation and conciliation”. Actually that heading could be slightly misleading because subsection (1) does not exactly address that. But I will be interested to learn from the Minister whether this creates a new duty on lawyers. I will be interested to know what will happen for example—and Mr Jones as a lawyer may be interested in this—if someone decides that a lawyer has not promoted reconciliation or mediation. Could there be an action against that lawyer for breach of some kind of statutory duty? The general rule is that I do not owe any obligations to the other side; I owe my duties to the court and to my client. I think that that provision will give rise to some interesting questions and I think that we as legislators owe it to the profession to give that a little more thought during the Committee stage. 
As we know the bill breaks up the various Family Court provisions and puts them in particular Acts. I think there is quite a lot of over-prescriptive legislation in this particular bill. Let me give members some examples. The first example is clause 44. It can be found in Part 6 which amends the Family Courts Act 1980. Clause 44 deals with the avoidance of unnecessary formality. It amends the Act so that a judge sitting in the Family Court may wear a gown but must not wear a wig and so that a lawyer appearing in a Family Court must not wear a gown or a wig. To me that is just an example of typical overly prescriptive Labour legislation. 
Why does one need that provision in the legislation? As a matter of practice as far as I am aware ever since the Family Courts were created judges have never worn wigs. Wigs indeed have been out of date in the general jurisdiction since 1996 when they were abolished in the superior courts the rationale being that to wear a headpiece made of horse hair in the style of some 18th century fop did not necessarily increase one’s mental acuity and I tend to agree with that. I do not think that a lot of this stuff is needed. It is overly prescriptive and overly wordy which is the style of legislation these days and I do not approve of it. 
None the less this bill does raise as I said some very sensitive and important matters. I think a good effort has been made by the Social Services Committee to weigh up the various considerations which are often competing—on the one hand the desire for privacy when one is dealing with this very difficult litigation and on the other hand that general principle I referred to that the courts of the land must be open to all. I very much look forward to the Committee stage but I do say there are some matters that we should not lightly gloss over because there are some important consequences we will have to talk about. 
DAIL JONES (NZ First) 
: 
 On behalf of New Zealand First I tell the House that we support the Family Courts Matters Bill. I was very interested in Mr Christopher Finlayson’s undertaking that if he ever becomes a Minister he will provide the Opposition with his Supplementary Order Papers at the earliest possible moment. He has put himself rather in the case of the policeman giving a warning to a person. His undertaking has been noted and if he ever graces the Government benches it will be used against him at the very first opportunity—which probably will not take very long in the way that things go. So he has made a very dangerous comment there. 
I have looked at this legislation. I was not in the House when it was introduced but I have been through the bill. I probably would have been in the House even in 1980 when some of the legislation was first passed. The Care of Children Act was passed in 2004 when I was here. I think I have practised in cases relating to all but two of the 11 Acts that are referred to in the legislation. Those two Acts concern mental health and stability legislation relating to an area that I am very pleased to have never practised in. It is a very difficult area and as Dr Hutchison would probably know it requires specialised legal expertise of the sort that I do not have. 
This bill is good basic general law which is of great importance in the family law area. As Mr Maharey pointed out most of this legislation in so far as the Family Court is concerned really relates to the situation of two people who have just hated each other so much that they cannot reconcile their differences in any way whatsoever and finally have to go to court to do so. I have been out of the House for a couple of years and have come back again and have experienced one or two of these cases as counsel. It is really sad when we see that type of case happen. One feels that one’s client is right and that the other counsel’s client is wrong but it is terribly sad. 
Fortunately very few of these cases end up in court. In New Zealand people do tend to see sense. They realise that the relationship has come to an end. They can work out who gets what and they realise that in the interests of the child the party who has the greatest amount of time will look after the child and will agree that the other party will have plenty of access to the child. Often the party who has the day-to-day care—as it is now called instead of custody—is very relieved that the children go to the other side once a fortnight so that that party can have a bit of a break. People with common sense realise that that is the very least that one can do—to give oneself a break and to have a bit of free time away from the children knowing they are in the good care of the other partner. Sadly that is not the case with some separations and although probably less than 0.5 percent of separations—I hope—in New Zealand end up in court those in that 0.5 percent cause us a tremendous amount of difficulty. 
I started reading through the bill and got a bit of a start a bit of a surprise when I was looking at the Adoption Act amendment. Section 22(1) to be inserted into the Adoption Act by clause 4 of the bill refers to attendance at hearings. It allows attendance at hearings of an application for adoption in certain circumstances. Section 22(1)(e) states that “accredited news media reporters” may attend hearings which took me by surprise a bit—and I think it will take most lawyers and other people by surprise—until I looked at the next page. There we realise that in section 22(5) a judge can turn that provision around. It is a very clumsy way of doing the legislation I would have thought. People need to be warned not to jump up and down when they see section 22(1)(e) because for some reason instead of stating “subject to subsection (5)” etc. it states that accredited news media reporters can be in court. But I am sure that that matter will be worked out. 
In respect of the part of the bill on the Care of Children Act 2004 I take the point that has just been made by Mr Chris Finlayson about the duty of lawyers to promote reconciliation and conciliation with regard to section 46D which is to be inserted into the Care of Children Act by clause 9 of the bill. This is not a new requirement. In a general sense it was in the 1980 Act and all lawyers have had to promote reconciliation and conciliation in order to advise their clients. It is the first thing lawyers must tell clients who are starting to tell them about their problems and saying that they will leave their partners. Lawyers have a duty to ask clients whether they want to reconcile. They have to ask that question and make a note on the file that they have asked it. This legal requirement slipped away in the early 1990s I think but it is in the original statute. The Law Society had to put out some sort of a warning on that point and I assume that lawyers are starting to ask that question again. If lawyers do not ask that question then they could be in trouble—ethically at least—with the Law Society. 
However section 46D seems to take it a lot further as Mr Chris Finlayson has said. I am concerned that the compulsory nature of promoting reconciliation will be a problem. It seems to require that one must ensure that the facilities for promoting and reconciliation exist and must “take such further steps as in the opinion of the lawyer may assist in promoting reconciliation or if reconciliation is not possible conciliation.” That goes a lot further than the present requirement does and I would just ask who will pay for this. When people in this situation go to see a lawyer all they really want to do is separate from their partner but here we have the lawyer being required by this statute to promote this approach in an active and fairly detailed sort of way. 
It is very difficult in many of these cases for those people because they are doing it on legal aid. We all know about the poor rates of legal aid that exist today. We know for example as has already been mentioned in the House today that in Blenheim there might be no lawyers prepared to do legally aided cases. So what happens in Blenheim if someone there wants to separate? What happens in Nelson or in many parts of New Zealand where lawyers have refused to do legally aided cases because of the ridiculous rate of pay? I think that the rate of pay in criminal legal aid is the same as it was in 1996. I ask who in this House would be prepared to work on an MP’s salary at 1996 rates. Who in New Zealand would work at such rates? Well Mr Clarkson would be prepared to do it; I will just leave it at that! Some people can afford to do that in the old gentlemanly way but other people do need some kind of a standard of living brought about by their role as a member of Parliament. Very few of us in this country can now afford to work at 1996 pay rates. I suspect that we should look again at section 46D and at the obligations put on lawyers to get conciliation under way because we are not making any provision for lawyers to be paid. As we know many times when people go to their lawyer whether today or in the past they are so burdened by mortgage payments insurance payments and other things that they can hardly manage to pay the lawyer for the main part of the work let alone having this extra burden placed upon them. That provision looks good and it is a great idea. It exists at the moment but we will have to wait and see how well it works in practice. 
The other area I was interested in is in regard to the provisions in Part 2 which amends the Care of Children Act 2004. In particular I am interested in clause 19 “Reports from other persons”. Clause 19(2) states that if the court is satisfied that it is necessary for the proper disposition of an application it may request various reports such as a psychological report. I know from my own experience in the courts in the Auckland area that a judge can make an order requiring as a result of a conference the preparation of a psychological report and 3 months later not even a request has been made by the court staff for the report to be sent to a particular psychologist. There are grave problems in the administration of the system. It is all very well having a provision in the Act saying that we will get these reports but I ask what is being done in the actual administration of the Act to make sure that it is happening promptly. 
In the particular case I have in mind I am pleased to have put the case to the Minister’s office. I put it to the Minister today but just a few days ago the particular people involved ordered that the report be under way. To take 3 months for a psychological report to be sought is going a bit far. The case occurred in Mr Cunliffe’s area and I am sure he will take a closer interest in this particular court to make sure that his constituents are well looked after. I hope it was just a glitch—these things can happen—but people are keeping an eye on things. 
In this legislation I was interested in the provisions regarding the involvement of the media. I will be very interested to hear in the Committee stage precisely what these provisions mean. This bill is essentially technical and New Zealand First supports it. 
The ASSISTANT SPEAKER (Hon Marian Hobbs) 
: I call Te Ururoa Flavell. 
TE URUROA FLAVELL (Maori Party—Waiariki) 
: 
 Beautiful Madam Assistant Speaker. Kia ora rawa atu. Tena tatou katoa e hoa ma i tenei ahiahi. 
[ 
Well done. Greetings to us all this afternoon fellow colleagues. 
] 
The Family Courts Matters Bill according to the commentary on the bill seeks to make Family Court proceedings more open and to improve the efficiency and effectiveness of the Family Courts. In giving consideration to matters covered in the Family Court I say that the goal is all well and good but it would be our observation that there seems to be a preoccupation with adult problems that have the harshest impact on children or a focus on restoring relationships between former partners at the expense of the child. We say that there is a need to get it right to stop the cycle and to restore wellness hauora and well-being to the whanau if we are to prevent sad life stories playing out in subsequent generations as alluded to by Mr Jones. To that end the Maori Party has a keen interest in ensuring that the promise of the Law Commission report of “delivering justice for all” will be given priority through the Family Courts Matters Bill. 
We are pleased to see that two very significant issues have been raised by submitters—the proper protection of the children in court proceedings and the provision of counselling for children. Both of those issues we believe have been addressed through the select committee process. We are particularly pleased to see protections in place to ensure that the leave of the court must be sought before reports on Family Court proceedings involving vulnerable persons or children can be published. We agree with the focus of the family violence protection alliance that the proposed greater openness of the Family Court needs to be balanced with protecting a child’s right to privacy and the paramount need for his or her protection and safety. It was the recommendation of the alliance that detailed guidelines need to be provided to the news media about what can be published when a child is the subject of proceedings. 
I recall the devastating photographs published last August of a young boy battered to death by his mother and her partner. At the time the Children’s Commissioner Dr Cindy Kiro spoke out about a horrifying email petition that was circulating the autopsy photograph. She said: “Circulating them allows for further abuse in death of a child who was abused in life”. That matter was a cause for concern and it was one that was close to the heart of my colleague Tariana Turia who some years ago laid an official complaint against Television New Zealand for allowing footage to be shown featuring a tupapaku the body of a murdered child. Although both of these actions represent the extreme end of the continuum they illustrate how blasé some of our media have become about what information should become public fodder. We hope the advice of the family violence prevention alliance will be taken into account in the amended reporting provisions to ensure the ongoing and further protection of vulnerable persons. 
The other significant advance in this bill is the three amendments that extend counselling services to children. We note the view of the Families Commission that recent research shows that child-inclusive mediation lowers parental conflict and greatly enhances conciliation. We were however concerned that the needs of Maori and other cultural groups have not been adequately covered in looking at how groups may wish to access conciliation services. The bill has respected the right of children to have access to counselling which also helps them to distil their views prior to mediation. 
That is all well and good but the crucial feature missing from the bill is the need to provide more fully and appropriately for whanau. I remind the House that the current demographics indicate that one in four children under 5 is Maori and that the trend is all about growth in terms of a young Maori population. Although the Children Young Persons and their Families Act 1989 made specific provisions for whanau hapu and iwi involvement in decision making about the lives of children and young persons there are other pieces of legislation that feed into the Family Court that do so without necessarily considering Maori views regarding whanau. Legislation such as the Guardianship Act 1968 and the Domestic Violence Act 1995 can also result in the involvement of the Family Court as does the Care of Children Act 2004 and the Family Proceedings Act 1980. 
In this respect I was very impressed with the joint submission from Te Korowai Aroha and Relationship Services Whakawhanaungatanga. While Te Korowai Aroha has been operating for some 16 years delivering culturally appropriate services to tangata whenua Relationship Services Whakawhanaungatanga is the single biggest provider of counselling services to the Family Court. Therefore the collective authority of these organisations is pretty much beyond doubt. Their view was that as Te Tiriti o Waitangi promised to protect Maori custom and cultural values Maori expect that the Family Court and its processes should promote partnership between Maori and the Crown. They went further and constructed a model of practice that represents the development of a parallel process which reflects Maori world views. Some of the guiding principles that would underpin such a process include every Maori child having whakapapa; tamariki Maori belonging to whanau hapu and iwi; the rights and responsibilities for raising children being shared; and children having rights and responsibilities to their whanau. 
The submission from Amokura a collaborative iwi-led community change initiative to address family violence in Te Tai Tokerau reflected this same commitment to seeking alignment of the new policies and procedures to tikanga Maori. The Amokura project advocates the recognition of whakapapa whanaungatanga and the roles and responsibilities of whanau hapu and iwi. Amokura also highlighted that seeking recognition of the significance of whakapapa in Family Court dealings in respect of whanau Maori requires an understanding that the broader whanau other than birth parents also have responsibilities and obligations in determining the future of tamariki Maori. It is not simply a matter of mum and dad and the nuclear family. Whanau oranga whanau well-being is absolutely linked to child well-being and the reverse applies. 
The significance of whanau was given explicit recognition in another model put forward by Te Korowai Aroha o Aotearoa and Relationship Services Whakawhanaungatanga. They endorsed a proposal for non - judge-led whanau mediation seeing it as a crucial means of respecting whanau involvement at all levels of decision making. Te Korowai Aroha has trained and licensed some 250 whanau practitioners from across 70 Maori social and health non-governmental organisation providers in whanau conciliation practices. The very successful project called Project Mauriora is in itself based on Maori mediation and conciliation practices. The organisation estimates that it has worked with 19000 whanau in the past 5 years and one would imagine that 19000 whanau cannot be wrong. 
Although the submissions referred to lent their support to the bill—a position that clearly influences us in the Maori Party—it was ultimately disheartening to read the select committee report and see that there was no reference to non - judge-led whanau mediation that there was no reference to the crucial role that whanau hapu and iwi play in resolving disputes and that there was not even a cursory acknowledgement of Te Tiriti o Waitangi. We will support the bill at the second reading but we hope to anticipate changes at the Committee of the whole House stage that will reflect the very useful contributions made by Maori throughout the consultation process. 
LYNNE PILLAY (Labour—Waitakere) 
: 
 It is a pleasure to stand and speak very briefly—because I am not in much of a condition to speak too much today—on the Family Courts Matters Bill. I am a relatively new member of the Social Services Committee but I acknowledge my good friend Russell Fairbrother who I think does an excellent job chairing the committee. I also acknowledge all the members of the committee who worked on the bill because I think there was a genuine commitment to working through the issues and ensuring that when the bill came back to the House it was as transparent as possible and also recognised the rights of our young people in this country. 
It is very important legislation and there is far more fairness and transparency. I know that it will have a positive impact on our families who need to go through the Family Court process. In saying that I can see Mr Clarkson over there smiling in a friendly way nodding and endorsing what I say and that is a very good thing. It does not always happen in this House. 
We recognise that the Family Court is the last call in the process and we always wish to see matters—particularly in the care of children—resolved in families far before they go to the court process. In most cases they are. When it gets to issues not being resolved before that and it is necessary for attendance at the Family Court there is more openness in the proceedings. I think that the requirement or the provision for non-judicial mediation is very good and enhances the bill. It means that there is more opportunity to resolve issues without going to court. 
Some of the more notable changes include identifying the information about those under 18; that information is protected from disclosure. That is very important. We had considerable discussion around counselling for children and we wanted to extend the right for children to be directed to counselling if it would help. We know that often when there are court orders the changes in a young person’s life—certainly intended to be in his or her interests—can still be difficult especially for children to comply with or accept. Often in such instances counselling is a very valuable and helpful thing. Another change that guardianship disputes are referred to mediation with a lawyer acting in the interests of the child is also beneficial. 
I know that many organisations have supported the bill. I have been told that Relationship Services helped 8600 parents last year and that this bill and the further improvements made by the select committee were welcomed by that organisation. I am not supposed to be speaking too much with my laryngitis but I just could not help myself from jumping to my feet and saying a few things in support of this bill. Thank you. I commend it to the House. 
TIM BARNETT (Labour—Christchurch Central) 
: 
 I will take a similarly brief call on the Family Courts Matters Bill. I was really inspired by the words of Steve Maharey earlier when he reflected on the way that select committees are working very much more effectively than prior to MMP being introduced. Now we have much more of a cross-party nature to the work of select committees and also committees are able to follow themes. In saying that I just want to reflect on the fact that when I chaired the Justice and Electoral Committee— 
Hon David Cunliffe 
: A fine chairman. 
TIM BARNETT 
: I thank my colleague very much—and we dealt with the Care of Children Bill we listened very carefully to the submitters who came to us on this very matter. As a result of that we made a number of changes beyond the bill that was presented to our committee. The changes were around trying to open up the Family Court in terms of who can attend the court and what can be reported particularly in respect of guardianship issues. 
I think all of us who do a lot of local casework as members of Parliament are well aware of the continued frustration of many in relation to Family Court matters. The moves in this legislation continue the trend that we began under the Care of Children Bill. They are extremely welcome. They spread throughout the other parts of the Family Court and also take things just a little further in terms of the depth and breadth of service particularly with the introduction of non-judicial mediation. Many of us who maybe doubted the validity of some of what we were being told on hearing the story of these cases recognised that the winners in these cases are very often the lawyers on both sides in terms of the money they receive. The frustration of people on both sides—among both parties—is great. 
It seems to me that the Social Services Committee in working with this bill has taken things further than the current legislation in a really positive way. I am very happy to commend the bill to the House. Thank you. 
Bill read a second time.