Family Courts Matters Bill

Hon ANNETTE KING (Minister of Justice) Link to this

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) Link to this

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) Link to this

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.

CHRISTOPHER FINLAYSON (National) Link to this

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 Māori 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) Link to this

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) Link to this

I call Te Ururoa Flavell.

TE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Beautiful, Madam Assistant Speaker. Kia ora rawa atu. Tēnā tātou katoa e hoa mā i tēnei 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 whānau, if we are to prevent sad life stories playing out in subsequent generations, as alluded to by Mr Jones. To that end, the Māori 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 tūpāpaku, 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 Māori 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 whānau. I remind the House that the current demographics indicate that one in four children under 5 is Māori, and that the trend is all about growth in terms of a young Māori population. Although the Children, Young Persons, and their Families Act 1989 made specific provisions for whānau, hapū, 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 Māori views regarding whānau. 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 Māori custom and cultural values, Māori expect that the Family Court and its processes should promote partnership between Māori and the Crown. They went further and constructed a model of practice that represents the development of a parallel process, which reflects Māori world views. Some of the guiding principles that would underpin such a process include every Māori child having whakapapa; tamariki Māori belonging to whānau, hapū, and iwi; the rights and responsibilities for raising children being shared; and children having rights and responsibilities to their whānau.

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 Māori. The Amokura project advocates the recognition of whakapapa, whanaungatanga, and the roles and responsibilities of whānau, hapū, and iwi. Amokura also highlighted that seeking recognition of the significance of whakapapa in Family Court dealings, in respect of whānau Māori, requires an understanding that the broader whānau, other than birth parents, also have responsibilities and obligations in determining the future of tamariki Māori. It is not simply a matter of mum and dad and the nuclear family. Whānau oranga, whānau well-being, is absolutely linked to child well-being, and the reverse applies.

The significance of whānau 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 whānau mediation, seeing it as a crucial means of respecting whānau involvement at all levels of decision making. Te Korowai Aroha has trained and licensed some 250 whānau practitioners from across 70 Māori social and health non-governmental organisation providers in whānau conciliation practices. The very successful project called Project Mauriora is in itself based on Māori mediation and conciliation practices. The organisation estimates that it has worked with 19,000 whānau in the past 5 years, and one would imagine that 19,000 whānau cannot be wrong.

Although the submissions referred to lent their support to the bill—a position that clearly influences us in the Māori Party—it was ultimately disheartening to read the select committee report and see that there was no reference to non - judge-led whānau mediation, that there was no reference to the crucial role that whānau, hapū, 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 Māori throughout the consultation process.

LYNNE PILLAY (Labour—Waitakere) Link to this

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 8,600 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) Link to this

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—