Family Courts Matters Bill

Dr PAUL HUTCHISON (National—Port Waikato) Link to this

I speak on Part 7 of the Family Courts Matters Bill, a bill that I think I recall the Hon Rick Barker saying was purely a technical bill, but one that clearly extends to much more than matters of pure technicality. In fact, I note that the Hon Rick Barker has put forward Supplementary Order Paper 202, which proposes to divide the bill into 12 bills.

With regard to Part 7, the proposal is to have the title of the Act as the Family Proceedings Amendment Act 2008 and have the commencement come into force on a date to be appointed by the Governor-General by Order in Council. Part 7 deals particularly with counsellors and mediation, and the roles they play in this matter of the Family Court, which are absolutely vital and fundamental.

I think it was Principal Family Court Judge Boshier who said in his submission on behalf of the Family Court just how absolutely vital it is to ensure that the help from counsellors, psychologists, or mediators is of the highest quality, because there has been variability in the past and the negative consequences of this help not being of the highest professional standard can be considerable. Nevertheless, over the years a high professionalism has developed in this area, and I understand that several organisations are particularly representative of mediators and counsellors.

I see that the Arbitrators and Mediators Institute of New Zealand and LEADR, an association of dispute resolvers, also submitted. They also stressed just how vital it is to have professionalism within their ranks, and to be consistent, to be available, and, of course, to be able to provide a rapid response if necessary. Nothing is worse than having long gaps between making the order to have counselling or mediation and it finally coming about because, when the parties are ready to embrace it, it is important to get on with it while one can. I note that section 12, which is to be substituted in the Family Proceedings Act by clause 54 and is entitled “Duties on counsellors”, states in subsection (1) that a counsellor “(a) must explore the possibility of reconciliation between the parties; and (b) if reconciliation does not appear to be possible, must attempt to promote conciliation between the parties.”

In their submission, the Arbitrators and Mediators Institute and LEADR spent a lot of time defining the difference between counselling and mediation. They stated: “Counselling is a process in which an individual client is assisted by a counsellor to consider their internal and emotional responses to the external world with a view to improving their own emotional and psychological health and their ability to respond to external stimuli in a more constructive manner.” Undoubtedly, this requires enormous professionalism and skill. On the other hand, they said that mediation is a process “where an independent mediator works with parties to identify issues between the parties, explore options, and try to agree to outcomes”. Clearly again, the potential of their being successful is incredibly important.

I note that in those organisations’ submission they also make an appeal to be recognised in terms of their pay. They say that they have not been appropriately rewarded, particularly for some of the longer and more complex cases. They feel that their skill level makes it necessary for them to be paid at a similar rate to that of lawyers, and I wonder just how my learned legal colleagues around me would feel about such a proposition. I will end by saying that there is no doubt that skilful mediation, wide mediation, and counselling are very, very important.

CHESTER BORROWS (National—Whanganui) Link to this

I appreciate the opportunity to make a contribution to the debate on Part 7 of the Family Courts Matters Bill. I guess it is the experience of so many of us working out of electorate offices that people who contact us from time to time about judicial matters are frequently people who find themselves in a state quite broken by the Family Court process. Not having had any personal experience in relation to matters before a Family Court, my only experience is through the mouths of those who have. It is a real shame that people find this process so bruising and damaging. In actual fact, I think that if there is one thing we could do at some stage in the future it would be to remove as much as we could the adversarial process of the Family Court. Children are frequently at the centre of that process. They become not a toy or a plaything, but certainly the most bruised chattels—almost—of those who are scrapping over things that invariably originate away from children and are to do with the relationship of the adults in the situation to start with. I think that that is a real shame.

Given the clauses in Part 7, National is pleased to be able to support this bill and this particular part of the bill especially, because it puts at the heart of matters the opportunity for mediation, and it requires that there is a consideration of reconciliation or that these matters are explored. It is a shame that things progress so quickly before the Family Court. I guess no one gets to the Family Court without quite a bit of baggage from previous years or incidents leading up to it, but it is a shame that in the middle of what can often be an acrimonious and hostile period people are required to explore reconciliation, at a time when it is probably least likely to occur. It is often quite amazing, though, that after the process is complete—it may be a matter of months, it may be a year or so down the track—if one explores the state of the relationship at that time one sees that it is often in a much healthier state than it was at the time of progressing through the Family Court process. Unfortunately that is the time when the orders are made, and it is almost as if the relationship is set up for failure at that point. However, it is very difficult to see how a judicial process imposed on a personal relationship can do anything else. So not only do we have sympathy for people involved in this process as the parties, we also have enormous sympathy for children who are placed into the process by dint of their parents needing to bring matters before the court. The mediators and the counsellors then have to work through that court process.

It is a real shame, too, that various parties always seem to find the whole process something that they feel completely dissatisfied with. Frequently many of us as members of Parliament are contacted by men who have been through the process of the Family Court and found—from their point of view, in any event—that they have not been treated well. But then on the other side of that we have women who feel that as soon as they entered the process they ran up against family trusts who had paid for big gun legal counsel to fire against them, and they found themselves—from their perspective—disenfranchised by the Family Court situation as well. So we end up back where I started from, which is that it is a shame that the adversarial nature of the Family Court system or the judicial system is such a big part of the Family Court system, no matter how much we would like to try to move it away from that. National is pleased to note that there is a move to maybe deaden that adversarial process, to look to counselling and mediation as things that could become keystones of the Family Court process, and to lessen the impact on those who are involved in it.

There is one very disappointing factor, though, and that is that the Government did not produce a bill capable of dealing with the anomaly that the Family Court cannot order DNA tests to establish paternity. A man accused of being a father is required to pay child support without paternity having been proven, and a DNA sample cannot be required by the court. It is very much a matter of consent on behalf of the custodial parent of the child; the court cannot force a DNA test to be made so that paternity can be proven. But at the same time the court can move against the nominated father and require that paternity payments be made. It seems a huge anomaly. It is one of the prime areas of complaint that we see through our electorate offices all the time, and it has not been addressed by this bill.

Anyway, National looks forward to the upcoming election—whenever the Prime Minister decides to give us a date—we look forward to the prospect of having the privilege of Government, and we look forward to the ability in the future to rectify the law to make it fairer to those coming before the Family Court.

JUDY TURNER (Deputy Leader—United Future) Link to this

United Future is supporting Part 7 of the Family Courts Matters Bill, which, largely, covers the issues of counselling and mediation. I agree with the previous speaker, Chester Borrows, that we need to start to look in family law to some of the rather fine progress that has been made in other jurisdictions around better ways of helping families weed whack their way through what is often a pretty appalling experience when a couple’s relationship has come to an end.

If we are serious about moving away from a more adversarial approach, I suspect we will need to consider, at some stage, the assumptions in law regarding parenting arrangements for children. Those assumptions allow lawyers to have a field day. If, for instance, there was an assumed starting position in law of shared care, then I think we would find that the approach to working out the parenting and care arrangements for children could be very, very different. One of the blocks to that is provisions in other law. Law is such a complicated thing, and we quite often find it very difficult to amend one law without making adjustments in other areas of law.

One of the areas of law I have come across that does deal directly to Part 7 is the fact that in New Zealand our benefit system is inflexible to the point that one cannot share a benefit. It means we are forced to establish a primary caregiver who is entitled to a domestic purposes benefit and a non-custodial parent—or a parent that has access only—who is not entitled to share a part of that benefit.

United Future would welcome an urgent review of a number of issues to do with child support. Currently we use some very blunt instruments to calculate child support. All these issues add to a series of assumptions that facilitate an adversarial tone in our Family Court. After the election, if any Government is serious about moving in a less adversarial way, then it will have to realise that there are some very serious considerations—layers and layers of considerations—that will need to be taken into account.

I also pick up the issue mentioned by Chester Borrows about DNA testing. The Law Society said that this was the great failure of this bill—that it was a wasted opportunity. I have a member’s bill on the Order Paper, and I will be seeking to advance that—obviously, after the election. The Attorney-General has already indicated there may be some areas of my bill that need strengthening, and I am very open to that. My bill is currently focused on allowing a father who is involved in a dispute as to whether he is the father of a child—a named father, or an unnamed father, as the case may be—to have that clarified simply and quickly through a DNA test. The issue the Attorney-General has raised is whether, for instance, a child who would like to clarify that position is able to make such an application. I am perfectly open to the suggestion that we could strengthen what I am proposing.

I think we have to understand that there are two situations that the Family Courts Matters Bill has failed to address when it comes to establishing who is the father of a child. There is the case of the father who believes he is the father of a child and would like to have meaningful contact with that child but, because he is not named on the birth certificate, cannot even apply to have any access. The other side of the coin is a gentleman who is named as the father and suspects that he is not, but is now liable for sometimes quite hefty child support payments whilst all the time unconvinced that he is, indeed, the father. In fact, when we talk to such gentlemen we find that many of them would be happy to pay, provided they knew for sure they actually were the father.

I think there is another important thing to note in Part 7. One of the things submitters asked us to be mindful of was that there is a huge difference between mediation and counselling. There was some concern that, as we progressed, we would morph these into one consideration and misunderstand the very distinct differences between those very important roles. The Social Services Committee was very mindful of that. We talked about issues around the participation by children in mediation, and when that was age-appropriate. Who would decide that? Could counsel for the child attend mediation and counselling on behalf of their client, the child?

The committee had to weigh up and consider a number of issues like that, and those are not small decisions. Many would have to be made on a case by case basis. The committee was reluctant to see a law that would set up a clear and demanding expectation on children to attend; nor did we want to provide a situation where children were blocked in a way that could be unhelpful for their ongoing well-being. United Future is happy to support Part 7.

PAULA BENNETT (National) Link to this

I rise to speak on the Family Courts Matters Bill in the Committee stage. I will pick up on a couple of issues that have been raised by National members.

When we think about this bill and the necessity for it, the first thing that springs to mind is why any party ever launches into such a complex area that raises so many questions. We hear stories from women—and I am sure many of us know such women—who have had difficulties as far as Family Court matters, paternity issues, and payments for their children are concerned. We also hear the other side of the story, which Judy Turner just raised, and that is the issues men have as far as paternity, access, and payments are concerned. The reality is that there are two sides of that story, and we hear compelling arguments from both sides.

At the end of the day, in what turns out to be a lose-lose situation, the main losers are the children. That is why it is relatively courageous and a great thing that we discussed this issue in the Social Services Committee and we are discussing it here in the Committee stage. It is never easy; nor is it ever going to be. We are dealing with emotions and with people who are, quite frankly, at a crisis point, and, as we all know, when children are involved it becomes extremely complicated.

We need to pick up on many other issues. I really do agree with Judy Turner that currently—and this bill touches on this too—we pitch one parent against the other. Immediately, we say that one parent will be the custodian and one will be the payer, and that is the way it will be. It almost feels like one parent gets the child and the other has to pay for the child, and that is where a lot of these issues happen.

Part 7 talks about counselling. I think it is great to address some of the concerns about what those parents and, in particular, those children need. I think the best advice we could give to anyone in this situation is to keep the courts out of it wherever possible. If people can sort themselves out without getting the Government and the State involved, then that is the best thing a family can do. But if a family is in a difficult situation, then they need legislation such as this, and parts of this bill will make a difference for such people. I think the Minister himself, the Hon Rick Barker, acknowledges that when families are dealing with such an emotional and stressful time, no legislation will be able to fix every problem and account for every issue and situation that can arise.

I also want to talk a little bit about where we are with DNA testing. We are in a situation where it is easily done, and, from what I can see, all parties except for the Greens support addressing that issue. I did not have the good fortune of sitting on the Social Services Committee for this bill, but I did sit on the committee about 2½ years ago when we went through issues relating to payment and the Inland Revenue Department. From what I could see, Labour, National, ACT, and United Future considered child support to be a substantial financial obligation, and there needs to be discussion as to how we address the issues of DNA and paternity. It was a shame that we could not do that within the scope of the bill.

Part 7 talks a lot about the need for counselling and what that means for the children concerned, and I think that is important and necessary—

Dr PAUL HUTCHISON (National—Port Waikato) Link to this

Part 10 relates to the Mental Health (Compulsory Assessment and Treatment) Act 1992 and, obviously, will become an amendment bill itself after the Hon Rick Barker’s Supplementary Order Paper takes effect. National is glad to support this part. In particular, it deals with restrictions on the publication of reports of proceedings. Undoubtedly, this is absolutely pertinent when it involves individuals who have been committed under the Mental Health (Compulsory Assessment and Treatment Act) 1992.

I note that in the submissions there was unanimity between the various submitters that this was the appropriate thing to do. Judge Boshier, speaking for the Family Court judges, did query the competence of a person who is to be the subject of an order to make a rational decision about publication. He says they are concerned about the level of understanding any patient may have about the implications surrounding publication. The judges proposed deleting this provision and dealing with all publication matters under the Family Courts Act. That was very much echoed by the family law section of the New Zealand Law Society and by Professor Bill Atkin.

It is undoubtedly important that the rights of vulnerable people are protected. I guess that is the nub of this legislation, because any change to the openness of the legislation must strike that balance between open justice and the privacy of individuals, of children, and of the family involved, and in that aspect, of course, of people who have a mental disability.

It is pertinent that this week the bill that allowed the ratification of the United Nation Convention on the Rights of Persons with Disabilities was unanimously carried in this Parliament—only 2 nights ago. I think there was general celebration both through the sector and through the Parliament that New Zealand had made the benchmark move to have that convention ratified. Again, it was made very clear in that legislation that vulnerable people, such as those with severe mental disorders, do need protection. What was good about that was that it also allowed those who were able to participate in a whole variety of actions, to do so and not be excluded because of their mental illness. So again it struck a very good balance between the two.

But there is one, slightly sinister, area that I thought it was worthwhile bringing up. From time to time when couples are in huge strife and things become very intense and emotional, there have been instances where one partner may attempt to commit the other under the Mental Health (Compulsory Assessment and Treatment) Act 1992. That, of course, is an awful situation to be in, and it just exemplifies how important, once again, the mediation and counselling processes are if such a condition arises. And of course, once again, publication of that sort of highly intimate detail would be totally inappropriate. There is no doubt that Part 10, which amends the Mental Health (Compulsory Assessment and Treatment) Act, is absolutely appropriate.

PAULA BENNETT (National) Link to this

I would like to ask a question of the Minister in the chair, the Hon Rick Barker, with regard to new section 2BAA, “Civil union includes immediately preceding de facto relationship” in clause 77. I certainly have some questions around that provision, and I did not sit on the Social Services Committee. New section 2BAA states: “For the purposes of this Act, if a civil union was immediately preceded by a de facto relationship between the 2 civil union partners (‘A’ and ‘B’), the de facto relationship must be treated as if it were part of the civil union.” An example of civil union is then given: “If the de facto relationship of A and B lasts 1 year, and their civil union lasts 2 years, the civil union must be treated as if it—(a) began 3 years ago; and (b) lasted 3 years.”

That, of course, raises many questions. How do we know whether people were in a de facto relationship? Are we insisting, a little bit like we do with some other legislation, that they show they incurred bills together and were living in the same premises? Under what definition is a relationship a de facto relationship? There are certainly questions around how to prove that.

A Minister’s speech-writer wrote about “triples”. I wonder whether a triple relationship would come into a civil union relationship if the relationship is a de facto one. I wonder how that would fit in. I am not quite sure what “triple relationship” means, but we certainly heard the issue raised in one of the speeches from the other side. If people were in a de facto relationship for some time, how do we define the de facto relationship? Is it defined as two people living together and sharing the bills? What happens if it is a triple relationship, as has been mentioned by Labour members earlier? How would that work in regard to the Property (Relationships) Act, which Part 11 amends?

DAIL JONES (NZ First) Link to this

I went to the seminar when the Property (Relationships) Act was being put into effect. The issue of a doubles relationship was raised, and one of the ways in which people make sure that everyone knows there is a doubles relationship—in particular, the party who perhaps might gain the most—is that after 12 months they have a great party to celebrate the first anniversary of the relationship, then they have the second anniversary, and then the third anniversary. So if the matter ever went to court they would have all their friends there to say that quite clearly this relationship started on such and such a date. Although that may sound facetious, apparently that is done and it is a wonderful way of establishing, by way of evidence, that the parties have been together for 3 years.

So far as a triples relationship is concerned, well, some people might say that chance would be a fine thing, but there seems to be some aspersion being cast on a speech prepared by a speech-writer for the Minister and some people seem to be taking advantage of that. I clearly remember a select committee hearing that I was on, dealing with a family matters bill, and the suggestion was raised that there might have been a polygamous relationship between a homosexual man and two lesbian women. I suggested that could be a triples relationship, because both the women had had children from the man. [Interruption] This was evidence that was given in the select committee. I raised the question whether it was polygamous, and they all denied that it was. It was an interesting point, and the Labour Party members were horrified to think that anyone could possibly believe there could be a polygamous relationship. So far this House has, on the question of the Property (Relationships) Act—

Dr PAUL HUTCHISON (National—Port Waikato) Link to this

Thank you for the opportunity to speak on the title and the various other clauses you suggested, regarding this Family Court Matters Bill. Once again, I note that the Minister in the chair, the Hon Rick Barker, initially regarded this bill as purely a technical bill, but National members have on many occasions pointed out that this is much more than a technical bill. However, contrary to the fact that it is appropriate for it to be called the Family Courts Matters Bill, in actual fact it will be divided into 12 bills. I will not go through them all, but they range through a vast spectrum from the Adoption Amendment Bill and the Care of Children Amendment Bill (No 2), right through to the Mental Health (Compulsory Assessment and Treatment) Amendment Bill and the Protection of Personal and Property Rights Amendment Bill (No 2). All of these are highly relevant to the smooth and effective running of the Family Courts Matters Bill.

I am only too conscious of just how important it is to have technical expertise within the court, to make sure that these matters are run effectively. I was quite interested, at one stage, to read that although the court is being opened out, the judges prefer—well, they insist on—having the right to ask people to leave if they feel that it is appropriate. I think that is absolutely correct, because I remember very much, when I used to be carrying out caesarean sections, that husbands would come in to hold the hands of their wives, and from time to time I would have to say to them that if there was any possibility of there being a technical reason for them to go, then I would ask them to respond appropriately. Occasionally, as members can imagine, when a spouse fainted and cracked his head, there was all hell to pay. That did happen on the odd occasion. I can see a similar analogy in a court of law, where a judge might indeed find that he or she will be required to ask one of the many people now allowed into a court in this new open situation, to leave.

But I emphasise that Judge Boshier, in his submission to this committee, stressed just how important it was to have those expert qualified counsellors, psychologists, and mediators, and how important it was to ensure the professional integrity of those people in the running of the court—much more particularly to the end result of the sort of anguish we see when a small proportion of cases comes to court. As I noted before, the delicate balance between the openness of the court and the restrictions that can apply, was very carefully and poignantly expressed by the English Law Commission: “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 their children whose privacy the law takes pain to protect in other cases.” I understand that in Australia, where there is openness, this indeed can have quite severe negative repercussions.

I also take this opportunity to comment on one of the opportunities this bill does not encompass, a missed opportunity, and that concerns DNA testing, on which Judy Turner from United Future has a bill awaiting the ballot. I personally can relate just how important it is to get up to speed and use DNA testing within the court system. I vividly remember, some long years ago, being asked as a junior registrar to go to the court in Pukekohe, of all places, to be an expert witness on a paternity case. It happened that there were eight young men and one young woman, and of those eight young men only one had any assets. But according to my calculations, using the dates I was given, the one with assets was indeed the least likely to be the father. However, the judge surprised everyone and, unfortunately for that young man, the judge awarded him the responsibility for that young woman. It seems to me that probably for a decade or so it would have cost him sorely, and probably unfairly. I make the point, then, that yes, maybe this is a missed opportunity, but hopefully in the next Parliament the matter can indeed be rectified. Thank you.

CHESTER BORROWS (National—Whanganui) Link to this

I will pick up on a couple of points that were made by my good friend Paula Bennett. She was talking about triples, and I wanted to draw attention—

PAULA BENNETT (National) Link to this

Thank you for the opportunity to just finish up quite quickly on the Family Courts Matters Bill. I suppose when we see that people are protesting outside judges’ houses, and we see people protesting as to how they feel about the results they have had via the Family Court, and when we have certainly had them all through our offices, writing to us, and certainly expressing their displeasure with the process they feel they have had, then it is paramount that we get this stuff right, that it is given due process, and that it has been through the select committee process.

As I have said earlier—and I want to reiterate it again—as far as I am concerned it is one of those processes where it is very hard to find winners. It is very hard to find anyone who comes out of this court process and feels like they have actually accomplished what they want to. At the end of the day, my personal opinion would be that if one is not getting to spend as much time with one’s children as one possibly can and find something that actually is equitable for both parties, then it is always a bit of a shame for everyone involved.

Overall, in terms of the bill, I think what has tried to be accomplished is to make the needs of the child paramount. I think, at the end of the day, that all sides of the House—certainly every party—were concentrating on what was best for the child. I think one sees that when we look at the Minister bringing in things around the Domestic Violence Act, and the stuff that goes with those, that have been introduced via the courts. There might not be many counselling services for the children, but if one believes that every child has every opportunity to succeed, then it does not matter how small the number is, quite frankly. It is something that should be addressed in this bill, and it is something that I am pleased we have seen introduced via it. I think mediation, and how we introduce it, is important in order to perhaps make people feel like they can talk a bit more easily, and that has to be a plus when it comes to the bill. I think it is important that we give people options as to how they can actually go through this process, which is a very emotional and often a very distressing process, and actually make it as easy as we can. Of course, I am one of those people who believe that keeping Government out of it, and keeping the courts out of it, wherever possible, will actually mean a better result. But when that cannot happen for people, and they have lost that ability to actually discuss it amongst themselves, then I think that we see some of the changes through this bill, and we are very pleased to be supporting that. Thank you.