Jones Dail: Family Courts Matters Bill — Second Reading 
Jones Dail: Family Courts Matters Bill — Second Reading 
[Volume:646;Page:15594] 
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.