Hon Dr MICHAEL CULLEN (Leader of the House) Link to this
I move, That the Adoption Amendment Bill, the Care of Children Amendment Bill (No 2), the Child Support Amendment Bill (No 2), the Children, Young Persons, and Their Families Amendment Bill (No 7), the Domestic Violence Amendment Bill, the Family Courts Amendment Bill (No 2), the Family Proceedings Amendment Bill, the Family Protection Amendment Bill, the Intellectual Disability (Compulsory Care and Rehabilitation) Amendment Bill, the Mental Health (Compulsory Assessment and Treatment) Amendment Bill, the Property (Relationships) Amendment Bill, and the Protection of Personal and Property Rights Amendment Bill (No 2) be now read a third time.
I will just speak very briefly to the motion. The House has accorded strong support to this legislation proceeding through all its stages, and careful, but reasonably well accelerated, consideration was given to this legislation in the Social Services Committee when it formed part of the Family Courts Matters Bill. I particularly thank all those members who participated in the Committee stage of the legislation for their thoughtful comments. I notice that Dr Paul Hutchison and, I think, Paula Bennett and Chester Borrows took part in the Committee stage of this legislation.
I think this is an area where traditionally the House has tended to try to adopt a relatively non-partisan approach, recognising that Family Court matters involve some of the most difficult and sensitive matters in our judicial system, and usually deal with people who are at very difficult points in their lives. I think, quite properly, that members have stressed the fact that in proceedings before the court, the interests of the children, particularly, need to be paramount.
Dr PAUL HUTCHISON (National—Port Waikato) Link to this
It is indeed with pleasure that I rise to support the 12 bills divided from the Family Courts Matters Bill. I must say that it is quite astounding how confused the Labour Government has become—perhaps confused and tired—as it gets to the end of its term in Government. It was only about half an hour ago that it suggested we would have these third readings another day, but suddenly they are here. Labour members are shaking their heads; maybe they are even more confused!
As Dr Cullen says, this legislation is very, very profoundly important. His comment is slightly at odds with the comments of his colleague the Hon Rick Barker, who in the debate on the first reading of the original bill said that it was just a technical bill. Clearly, it was the direct opposite. This legislation is profoundly important, and, indeed, it deals with matters that are exquisitely sensitive, and it is very important to make sure we get those matters right. I know that, as the constituent MP for the most excellent electorate of Port Waikato, some of my most distressing moments occur when I am visited by constituents who have had bad experiences in the Family Court. I guess that is because so often the matter is to do with children or with relationships that have come apart. For those reasons, it is very important that the court is able to work efficiently, effectively, and, of course, sensibly.
One of the most powerful submissions to the Social Services Committee was from Peter Boshier, the Principal Family Court Judge. He made great emphasis of the fact that it was important to have expert, qualified counsellors, psychologists, and mediators, that they should all be registered, and that there should be continuous quality control. They must be people of high professional quality. He made a great point of emphasising that. I made the point in the select committee that it was quite interesting to hear mediators suggest that they should be paid as much for their services as lawyers are paid for theirs. They felt that the part they played was just as important as, if not more important than, the part lawyers played. My legal friends around me wondered whether that was being a bit adventurous on their part.
Judge Boshier pointed out that although judges sort out the legal aspects of disputes, in many respects it is not appropriate for them to carry out mediation or counselling. They are not the experts in it. He made a comment that the courts had a backlog of something like 6,000 to 7,000 cases in this area at the time of his submission, and he pointed out how important it was that expert mediators and counsellors be available. He also pointed out that several pilot schemes had been carried out, and they showed that while judges might have only a limited time to spend on counselling or mediation, the professional mediators had up to 6 hours of mediation available to them through the court, and he felt that that was the best use of time in that respect.
I remember that he cited a very poignant case of a child aged 12 who said that he never wanted to see his father again. Judge Boshier asked the young fellow whether, if he met his father in the street, he would say hello. The boy said: “No. I’d walk across to the other side and I wouldn’t have anything to do with him.” The point Judge Boshier was making was that it was extremely sad that things had got to that situation, and how important it was that that young man be given the chance of mediation and counselling by experts to sort out, hopefully, the very, very difficult emotional state that he was in with regard to his father, and, hopefully, that relationship could be mended in the future.
One of the other really important parts of the legislation is the opening up of the courts, and the really important balance that must be struck between open justice and the privacy of the individuals, children, and families who are involved. We heard that the Australian courts are open, but that the repercussions for the families, and, in particular, the children, sometimes can be profoundly negative. I think I quoted earlier on what the English Law Commission had said about it. It said: “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.”
What is very important is striking the balance that is necessary to be able to deal with the tensions that can occur in the Family Court. Judge Boshier pointed out how important it is for the judges to have complete control of the court, and to have the absolute authority to ask people to leave when that is necessary, and that ability is very clearly pointed out in the legislation.
One of the other things that came out in the select committee was the missed opportunity to deal with DNA testing. I will not repeat the extraordinary case in the Pukekohe District Court where I was called to be an expert witness, but I think it is very important that the court system comes right up to par with modern scientific practice, because families and children are missing out if it does not.
Just to end, this is very important legislation. The National Party is very glad to support it, and I look forward to the contributions to be made by my expert colleagues Chris Finlayson and Chester Borrows, who have spent much of their professional careers in the courts and undoubtedly have a lot to offer.
CHESTER BORROWS (National—Whanganui) Link to this
I rise to make a short contribution. It is important to note that this legislation is important. That may seem to be a silly thing to say, but in actual fact it will change the nature of Family Court jurisprudence in this country and the way in which it is administered. National believes that it will be a much fairer system for people to enter into at a time that is filled with acrimony and hostility.
New ways of addressing old issues within the Family Court will make the movement through a procedure in that court much more enduring and lasting, we hope. For instance, there is the matter of having to balance open justice and the privacy of individuals, but with openness and transparency may well come enduring resolutions. One of the main hallmarks of this legislation is the emphasis on counselling and mediation for those who are going through the process, mediation before proceedings are formally commenced, and the ability to cut a less hostile track through highly strung emotions at a time when matters start going through the Family Court processes.
The other very sound practice that will be initiated under this legislation is the recommendation that children attend counselling when day-to-day care, contact, or guardianship is in dispute. Earlier, my friend Dr Paul Hutchison raised the incident of the young child who did not want to see his father. The father sought the intervention of the court so that the young boy could see his father, who, I understand, was in a bad way. That is just indicative of the sorts of resolutions we may get through this legislation, and that is a good thing.
It is so often the case that if only one party has access to a young child, then it is that party’s view that is transferred on to the child, and there is no understanding of the child, of why he or she is feeling that way, or of why the child is being encouraged or forced to feel that way. I know, from speaking to young children who have been treated a bit like a piece of toffee, pulled this way and that, during Family Court proceedings, that years down the track they wish they had seen things in a different way or had been able to stand back and take a more objective view. It is my contention that being exposed to counselling during this process will encourage even quite young people to have a more objective view of what is happening before them. The decisions and the views that are then conveyed to the court by counsel for the child will be those that will encourage a far more enduring resolution in the Family Court.
We have also discussed in other stages of the debate the fact that we have such an adversarial system, and we have questioned whether it is correctly applied to Family Court proceedings. I expressed the view, as others did, that in years to come we may get to a stage in this country where we look at a more conciliatory and constructive approach towards Family Court proceedings, and move away from a strictly adversarial model. That just sets one view against another, and things are hammered out, and in the end I am sure the courts end up making a resolution that neither party is totally happy with. But they have to make a decision on winners and losers, and that is very sad.
National members hope that this bill will improve the situation of New Zealand families who are involved in the Family Court process, and that the improvement to processes and procedures will lead to better outcomes for those families. It is in all of our interests that people who engage in the courts within our country believe that they have been given a fair hearing. Even if, at the end of proceedings, they are unhappy with the total outcome, they can latch on to some parts of the resolutions that come from the court processes and see that they were reached in a fair and understanding way, from their point of view.
CHRISTOPHER FINLAYSON (National) Link to this
As Dr Hutchison said, National supports the third readings of this legislation. I have not taken part in the Committee stage, but I have followed this legislation very closely, because I think it raises a number of very important issues, and I want to make just a brief contribution on a couple of them.
This type of litigation is hugely sensitive. In fact, it is one of the most difficult areas of court work any lawyer or judge can be involved in. A key issue this legislation tries to deal with is the extent to which Family Courts should be open to the public, and by that I also include the media. It is a basic principle, when one deals with our justice system, that there be openness in our court proceedings. By that, it is suggested that the courts should be open to the public so that if a member of the public wants to sit at the back of the court and watch a proceeding, then he or she should be entitled to. There are very few exceptions to this. Sometimes one can have hearings in chambers, and in very rare circumstances one can have in-camera hearings, but the general principle is one of publicity or openness.
I think that the Social Services Committee has dealt very well with this issue in trying to weigh up the kinds of factors involved in determining who should have access to the courts, and in what circumstances. I commend the select committee for that, and I hope that as this legislation comes into force, this difficult issue will be able to be resolved more clearly in the future.
The second point I want to make is related to clause 9 of the Care of Children Amendment Bill (No 2), which makes some changes to the Care of Children Act 2004. There are some excellent provisions dealing with the duty of lawyers to promote reconciliation and conciliation, and they will come under new section 46D of the Care of Children Act, and there is also a new section 46E, “Duty of Courts as to reconciliation and conciliation”. I really think it is so important a principle of law that it does need to be spelt out in statute. There are some who would say that it is implicit anyway, but I think it needs to be clear beyond doubt that a lawyer has a duty to ensure that the spouse, civil union partner, or de facto partner is aware of the facilities that exist for promoting reconciliation and conciliation, and, furthermore, that the lawyer takes such further steps as he or she thinks fit, as may be necessary to assist in promoting reconciliation, or if reconciliation is not possible, then conciliation. Similar provisions exist in relation to the court, and I cannot emphasise enough the importance of that kind of approach to the conduct of family litigation. Indeed, I go further than this; I believe that those provisions should form part of the general law.
I think it was a few weeks ago that Dr Worth, speaking in the House on a particular judicial bill, referred to a statement by Lord Denning many years ago. Lord Denning was a former Master of the Rolls in England, a highly respected judge revered by students for generations, who once said: “In litigation as in war, if one side makes a mistake, the other side can seize upon it.”
But there has been a sea change in the attitude to litigation, particularly civil litigation, in recent years, and the approach is that it is the obligation of the lawyer to join with the judge in getting to the truth of the matter. So, in litigation, there has really been a move to “cards face up on the table” rather than thinking one is playing a game of poker in litigation. This legislation takes it a step further and imposes a particular obligation on lawyers to promote reconciliation, and I think, as this Parliament reviews the civil justice system in the years to come, there is a very good argument that those general principles should also apply to those who are engaged in civil litigation, because far too much delay and expense is incurred when lawyers play games. There are tedious interlocutory applications, and matters seem to go on for an eternity rather than cutting to the chase and helping clients resolve their disputes.
The next set of rules, or sections, I want to refer to—and again they are introduced by clause 9 into the Care of Children Act—deal with mediation, and the rules relating to mediation are spelt out in some considerable detail. I think it is probably a good thing for this Parliament to address what some may think are questions of procedure. They are hugely significant issues, and rather than people fighting it out in court, mediation or alternative dispute resolution is, certainly, in my opinion, the way to go in this type of litigation. Mediation developed some 20 or so years ago, and it and other forms of alternative dispute resolution are a fundamental part of the justice system, but especially in family-type litigation, where it is very desirable that the parties should try to mediate their difficulties because it is so much cheaper. One can also deal with issues far more expeditiously, and then folk can get on with their lives after what—after all—is a very traumatic part of their lives. So I commend the Social Services Committee for the work it has done in bringing into some of these statutes—and I will not go through all of the statutes—some comprehensive procedures relating to mediation.
The final matter that really needs to be emphasised—and it is picked up in a number of provisions—is the avoidance of unnecessary formality. Rather strangely, there is a reference in new subsection (2), inserted in section 10 of the Family Courts Act by clause 44 of the Family Courts Amendment Bill, to the requirement: “A Judge sitting in a Family Court may wear a gown, but must not wear a wig.” I do not think judges have ever worn wigs in the Family Court. New subsection (3) in section 10 states: “A lawyer appearing in a Family Court must not wear a gown or a wig.” It may be considered that those provisions are otiose, but they certainly bring home the point that the Family Court is not a place for formality, but is a place where lawyers and judges are expected to act, obviously, in a formal way, but not with unnecessary formality.
Although I was not involved with the Committee stage of the legislation I think the select committee and the Committee are to be commended for the work they have done in this very sensitive area of the law. A number of statutes have been amended, and I think the end product is very good indeed. But as I said, I would be particularly interested to follow the development of the mediation rules.
The other thing I will be very interested to follow—and this is in relation to those clauses that I dealt with earlier about the duty of lawyers—is the question of lawyers who breach that duty. Will there be professional sanctions against them, or could there, in fact, be civil sanctions? That is one of those interesting issues that I know is going to arise, and we will have to wait and see how it is played out. National supports the third reading of this important legislation.