Family Courts (Openness of Proceedings) Amendment Bill

I move, That the Family Courts (Openness of Proceedings) Amendment Bill be now read a first time. It is a convention of Parliament, even more so under MMP, that parties support members’ bills to a select committee if the issue being raised in the bill has merit. Parties support such bills to a select committee so that the committee can investigate the issue and the public can have their say.

The Family Courts (Openness of Proceedings) Amendment Bill highlights what was a very arrogant approach by the Labour Government when the bill first came into Parliament in 2001. It highlighted the fact that Labour was completely out of touch with the concerns of society back then. I appeal to the Labour Government members, when they choose how they will vote on this legislation today, to reflect on the wider concerns of society and decide to send this bill to a select committee.

This bill is all about open justice, in the very crucial area of family law. One could say that it is the most important area of law in New Zealand, because it goes to the heart of what happens with families, and what happens to their children, when families are going through very difficult times, and in particular, when they are going through a family separation.

This bill was last debated on 21 February 2001, and was defeated by the Government. It said that the issues raised about openness in the Family Court were not important and they had no merit. That is the only reason why parties would not support this bill to a select committee. Yet I have to say that progress in this area since that time demonstrates how vitally important this issue is to New Zealand and how petty the Government was back then, when it failed to send the bill to a select committee. The open court legislation was the catalyst for change. The bill itself and all of those people who got behind it and supported the cause of more openness in this area of law created a momentum that reverberated right through the whole judicial system. It made people think, debate, and reflect on what is best for New Zealand. It made them think about the outcomes and the need for change, the need for more openness in the whole family law area, the need for greater scrutiny of what was happening in that court, and the need for greater accountability and greater responsiveness so that the court could deal in a better manner with the people who were appearing before it.

During the whole process of change—from 2001 until today—a number of people have made some very significant statements about the need for change in family law. The previous Principal Family Court Judge, Judge Mahoney, stated that the judiciary would be happy with whatever level of openness Parliament decided on in this crucial area. The new Principal Family Court Judge, Judge Boshier, is one of only a handful of judges who has the distinction of exercising discretion and exercising his power, which already exists for family law judges, to open his court to public scrutiny. He did that in Whangarei a few years ago. He was so concerned about the operation of the Department of Child, Youth and Family Services, he decided that the public should see what was actually going on in that department. I put on record that if there was openness in the area of family law, one of the key changes would be better performance from the child welfare agency in New Zealand and an improvement in the fraught area of child abuse and all the negative consequences for children. Every jurisdiction that has opened up its Family Court has found that over time the department dealing with those areas improves its performance, and as a result the rates of child abuse have been reduced. I say to the Labour Government that if it votes this bill down again, then it will be condoning child abuse in New Zealand, because here is an absolutely rock-solid way for this Government to improve its performance in this area.

I would like to dwell on this issue for a moment, in light of the appalling situation that we heard about in question time today. Concern was expressed about a mother who had abused a 6-week-old baby. As I understand it, she is now on bail for the assault of this 6-week-old child. The Minister claimed that she did not know that the other two children of this mother, who had been taken into care because the mother was deemed not to be fit, were in such a disgraceful state that we heard today that one 2-year-old child weighed 9 kilograms. Can members believe that the level of starvation was such that that child’s weight was so light? The other child was covered in excrement. It is just an appalling and disgraceful story. The Minister reported to the House that she did not know; that she was not informed by her department of the state in which those two children were removed from the care of their mother, even though her department knew that the Minister had to face up to questioning in Parliament and to public scrutiny. Are those the actions of a well-performing department? I say not, and this Government should think long and hard about that.

If there is another way for the Government to try to help to improve the performance of this department, through opening up the Family Court, then even if it is unsure about whether the Family Court should be fully open, the Government should take the opportunity to allow this bill to go to a select committee so that a reduction in child abuse can be one of the outcomes it can be proud of having helped to achieve.

The major reason to call for open court in New Zealand is to improve the future direction for children who have been involved in family breakdown. New Zealand has the dubious record of being the leader in fatherlessness in the Western World. Any sensible New Zealander would tell us that two good parents are better than one, yet we have family laws that ensure that one of those good parents is alienated during a family breakdown. We have children who not only lose their family home, they also lose their nuclear family and they are alienated from one of their parents. The problem is that most people, unless they have been affected by this, do not understand what has happened because the Family Court has been secret. If people speak out, as we in this Parliament know only too well because of what happened to one of our colleagues, then they risk severe threat and criminal prosecution.

If the Family Court was more open we would see more parents choosing mediation, we would see a reduction in the number of false allegations that are thrown around in the battle between parents over their children, we would see fewer family break-ups to start with as they saw the troubles and tribulations that would be ahead of them, and we would see the warfare that surrounds family breakdown reduce, and better outcomes for children as a consequence.

The Government will make some changes in this area, through its Care of Children Bill. I say that the Government will end up regulating the Family Court. It will be more open, but it will not be an open court. This Government should be very careful about voting this bill down, when it has the chance to send it to a select committee and to act in the best interests of New Zealand.

This bill would require Family Court sittings to be open to the public and enable any person to publish reports of proceedings. The current restrictions on public attendance and reporting are intended to preserve the Family Court as a forum where parties are encouraged to resolve their own differences wherever possible.

As the House will be aware, the private nature of the Family Court has been criticised in recent times. Continuing criticism of the court is a serious issue and risks undermining public confidence in it. Some of this criticism has unfairly labelled the Family Courts as secret and blamed Family Court Judges for that. This has been clearly detrimental to the court’s public image. Although openness in courts is a fundamental principle, there are situations where other important principles also compete. The Family Courts are such an example. Decisions on the openness of Family Courts must take into account the need to maintain a forum where the frank discussion of highly personal matters can take place. Many matters involve private facts and material, and parties or witnesses may be reluctant to give evidence in public. The law must not discourage people from bringing proceedings because of concerns about their personal affairs being publicly exposed, or enable one party to force an unjust settlement by exploiting the other party’s concerns about public exposure.

Disputes in the Family Courts often involve children, and it is essential to consider how any changes may affect them. There is widespread recognition that the vulnerability of children means that they often require special protection. In its recent report, the Law Commission confirmed the need to protect children from public exposure of court disputes in which they are involved. The experience of the Family Court in Australia suggests that allowing public attendance does not contribute in any meaningful way to greater openness of proceedings. The Family Court in Australia has opened its proceedings to the public since 1983, although restrictions on the publication of details that might identify the parties remain. There has been no reduction in litigation, and there continues to be allegations of judicial bias and dissatisfaction voiced by some interest groups.

I do not support this bill passing to a select committee, as it does not strike the right balance between open justice and the needs of parties and children involved in family disputes. This bill states that its objective is to require Family Courts to be transparent and open. I agree that there needs to be some discussion on the best way to ensure transparent decision-making in family proceedings. The important question is how to achieve that while simultaneously protecting the interests of children and vulnerable persons and maintaining the Family Court as a forum that promotes frank discussion of personal matters. This question has been considered recently by the Law Commission in its report Delivering Justice for all: A Vision for New Zealand Courts and Tribunals, and by the Government in the Care of Children Bill.

In its report, the Law Commission has come to a different conclusion from the one contained in the bill. The Law Commission’s report is the result of extensive consultation, including public submissions and two discussion papers. In contrast to this bill, the Law Commission does not support public attendance at all family proceedings. The commission considers that the general approach in the various family law statutes to public attendance represents a sensible balance and recommends that family proceedings that are currently closed to the general public should remain closed.

The Law Commission does, however, make a number of recommendations aimed at addressing concerns about the transparency of decision-making in family proceedings. Its recommendations include: allowing accredited media to attend all family proceedings; removing restrictions on reporting of family proceedings so long as identifying information is withheld where proceedings involve children or domestic violence; and allowing the courts to permit people with a genuine interest to attend the proceedings at the request of a party. The Law Commission’s recommendations represent a significant shift towards openness for some family proceedings, but this shift is markedly different from the type envisaged by this bill.

The Principal Family Court Judge has indicated his support of the Law Commission’s recommendations. The recommendations are also largely consistent with initiatives in the Care of Children Bill. That bill extends attendance at guardianship proceedings by allowing people who took part in earlier counselling or mediation to attend hearings. The bill also allows other people to attend proceedings, with the judge’s permission, and enables wider publication of guardianship proceedings. Everyone will be free to publish accounts of Family Court cases so long as the identity of the families involved is not disclosed.

The Care of Children Bill is currently before the Justice and Electoral Committee. I understand that that committee intends to report the bill back with changes recommended to allow accredited media to attend hearings as of right, and to enable parties to request that other support persons attend hearings. These amendments will bring the Care of Children Bill fully into line with the Law Commission’s model of openness.

There are obviously a number of other family law statutes that need to be considered in light of the Law Commission’s recommendations. The Ministry of Justice is currently analysing the Law Commission’s report—

💬 Dr Muriel Newman: I raise a point of order, Mr Speaker. It appears to me that the Minister is talking about matters that are currently before a select committee. The details of the Care of Children Bill have not been reported back to the House, yet the Minister is standing here, right now, telling the House what is in the new bill. That is a breach of privilege.

The ASSISTANT SPEAKER (H V Ross Robertson): I thank the member for her contribution. If it is a breach of privilege, of course the member has the opportunity to take the resultant course of action if she wishes to do so.

The Ministry of Justice is currently analysing the Law Commission’s report, and a formal Government response to the report is due in September.

As a vehicle for law change, this member’s bill is also fundamentally flawed. The bill contains a general clause to allow public attendance and reporting of proceedings. But the law about openness of family proceedings is contained in various Acts under the jurisdiction of the Family Court. The bill does not contain any consequential amendments that would need to be made to each of these Acts. Nor does the bill consider the wider impact of the individual Acts. For example, under the Guardianship Act of 1968, and more clearly under the Care of Children Bill, any decision must give priority to the welfare and best interests of the child. Stress associated with publicity can have harmful effects on children who are at the centre of disputes.

The bill is also restricted to proceedings in the Family Courts, whereas the rules in the existing law are not confined to those taking place in a Family Court. Under the existing law, the rules remain the same if cases are appealed to the High Court or to the Court of Appeal. This bill would provide two different standards, depending on which court the proceedings were heard in. For all appeals from the Family Courts, the existing restrictions on attendance and reporting would remain.

I welcome the opportunity for debate on how better to ensure transparent decision-making in family proceedings. However, the policy and drafting of this bill are short-sighted and fail to appreciate the true nature of the issue. The Law Commission’s report and the Care of Children Bill are more appropriate vehicles for legislative change in this matter. For those reasons I do not support the bill going to a select committee.

The opening of the Family Court to public scrutiny is an absolutely essential reform if we are to live up to our open democratic traditions and if families in New Zealand are to get a fairer deal. I congratulate Muriel Newman on starting this debate in 2001. We are making progress, but that was a disappointing contribution from the Minister. The Minister said to the House that the Family Court is not a secret court. Well, why did the Government put me in the dock for 5 days?

💬 Government Members: Aw!

It did. If it is not secret, then it is a pretty extraordinary thing that it asked for.

The second claim by the Minister is not to subject the Family Court to scrutiny, because it might be brought into disrepute. I say that the Family Court must be as open to scrutiny as any other taxpayer-funded institution, and we must ensure that that court is accountable for the services it delivers to the New Zealand public. A secret court is a dangerous court. The Family Court wields enormous power—the power to separate children from their parents, the power to take assets from one person and give them to another, and the power to remove some of the most basic freedoms in society. Those powers must be subject to some check. The most important check of all is the one in respect of public scrutiny. It is not just important that justice is done but that it is seen to be done.

The current secrecy in the Family Court creates an awful dilemma for this Parliament. The way in which our democracy functions is that our Parliament passes laws, the public then observes the way those laws are administered in our courts, they make judgments about whether that reflects the values of New Zealand society, and then Parliament refines those laws. But if the Family Court is completely closed to public scrutiny, how is the public to judge whether indeed it is reflecting the values of New Zealand society? We have cut off the essential loop by which our democratic structures in New Zealand operate. How can we make the assessment if only the judges and the lawyers who work within that environment know what the decisions are—even more so when we have such vague laws that simply ask that the court acts in the best interests of the child? The truth is, we all have a different view about what might be in the best interests of the child. I happen to believe in, and put strong values on, parental rights in that respect. But how can we make the judgment as to whether those best interests are being served, consistent with the public, if the court is to be closed?

There are three particular reasons why I think the court needs to be opened to public scrutiny. It is interesting to note the statements made by the Minister and by the chief social worker, Shannon Pakura, who said that opening up the Family Court will be bad because society will see what adults do to each other and what they do to their children. I take the opposite view. It is my view that by seeing what society does, we have some potential to address those issues. I also believe that having a more open court will help the court function. People will be able to see what takes place and make judgments about whether they want to take their own case to the court. I would also argue that those who say that the Family Court being opened up will return us to hearing the salacious details of marriage break-ups are ignoring the fact that we now have a no-fault divorce law, and we need look no further than Australia to see it working effectively.

I challenge the next Government member who says he or she will vote against this bill to tell us where the evidence is that it is working so badly in Australia. Yes, I accept there needs to be protection of identity and name, but an opening of the Family Court is absolutely essential if families are to get a better deal in New Zealand.

When the Family Courts were established over 20 years ago, the vision was of a specialist court that would encourage parties to resolve their own differences, wherever possible. It has been very effective, and I want to put on the record that over 90 percent of all cases that come before the Family Court are resolved without the judge making the decision. To achieve this outcome, the nature of the court had to be informal. Proceedings had to be heard in private so that families could air their differences frankly and openly and engage in a way that enabled the court to function effectively and so that people could make their own decisions. The courts were discussing private matters, not secret matters, and there is a distinction. Legislation passed since the establishment of the Family Court has been consistent with that philosophy. As a result, the majority of family proceedings are closed to the public. Reporting generally occurs only in a restricted and controlled way.

It is also worthwhile noting that Family Courts deal with a wide range of matters. Each type of family proceedings raises different considerations when deciding on the best way to achieve transparency in those proceedings. One general clause, as is proposed in the bill before the House, does not recognise the unique and varied jurisdiction of the Family Courts. For example, hearings under the Mental Health (Compulsory Assessment and Treatment) Act are usually held in hospital premises. Hearings under the Intellectual Disability (Compulsory Care and Rehabilitation) Act will also be held in hospitals once that Act comes into force. Some of the proceedings are conducted in secure wards that have strict visiting protocols to ensure the safety and well-being of the individuals with mental illness, as well as of the visitors and the staff. Public attendance is unlikely or practically desirable in any of these hearings.

Another example is the proceedings under the Domestic Violence Act. Such proceedings often involve highly vulnerable people. In some cases these people are at risk of violence and find taking decisions to make an application for a protection order a huge challenge. A presumption of public attendance at such proceedings is likely to affect this finely balanced decision about whether to apply for a protection order and may actively discourage the potential applicant from seeking such a protection order.

Family Court proceedings are more intimate and much more emotionally charged than other court proceedings. At the same time, disputes heard in the Family Court almost invariably involve children or vulnerable people. The principle of open justice is important, but decisions on the openness of the Family Courts must also ensure that vulnerable people and children involved in those proceedings have adequate protections. A balance needs to be struck between those two principles, and this balance must be absolutely unique to the Family Court to reflect the nature of the Family Court’s work.

In reporting its decision, Delivering Justice for All: A Vision for New Zealand Courts and Tribunals, the Law Commission provides a clear direction on the balance that it considers needs to be struck. The commission does not support public attendance at all family proceedings and recommends that family proceedings that are currently closed to the general public should remain closed. That approach is markedly different from the one in this member’s bill. The Law Commission’s recommendations offer more protection to the users of the Family Court system than the bill currently before us. Its recommendations are also based on public consultation and research.

I do not support this bill proceeding to a select committee. This bill is a blunt and crude instrument. This bill does not take into account the true nature of the Family Court’s work. It does not meet the needs of those people who use the system. The Care of Children Bill and the Law Commission’s report are more appropriate vehicles for that legislation. And I want to tell that member who interjected that there is a distinction between private matters and secret matters. Private matters are matters within a family, and that is where they should stay, and not be used as some sort of proceedings for those who are more voyeuristic in their approach to life.

I am sure that anyone who goes to court—any private citizen—would like to have his or her case heard in private, because going to court is very stressful for any individual, on either side of a case. Whether it is a Family Court matter, suing over a civil debt, or a criminal matter, the stress on the parties involved is almost the same. I have been involved in acting for both sides in civil cases. People can be very, very stressed about going to court, and about what will happen to them in the courtroom when the other practitioner gets hold of them and starts cross-examining. Appearing in court is stressful, regardless of what type of environment it is in.

The Family Court of course has had considerable protection, in so far as the parties are concerned, over many years. The previous speaker referred to the reforms after the royal commission in the late 1970s and the new Family Court legislation in 1979-1980. Of course I was in Parliament at that time, and I was involved in that legislation. In fact, I resigned as junior Government whip over one aspect of the legislation at that particular stage, so I am quite familiar with it. At that time the use of the Family Court was not as substantial as it is today. In those days one could get legal aid, but there seemed to be some restraints on legal aid at that time, and there were not that many Family Court cases. When we passed the legislation in 1980 we did so on the assumption that court matters would reduce. We assumed that there would be an improvement, and a reduction in cases coming to the court, because of mediation, conciliation, and such like. That was the premise on which all that was done. Yet today, in the Justice and Electoral Committee, we learnt that the number of judges has grown enormously since 1980, and this makes something of a mockery of our best intentions at that time.

Since that time we have seen the growth of the Family Court jurisdiction, helped almost solely by the ready availability of the domestic purposes benefit and legal aid. People are virtually encouraged now that, if anything goes wrong, the first thing to do is not to seek mediation or conciliation, but to walk out the door, get a lawyer, get some legal aid, and see what one can get from the other party. It is a tragic state of affairs. I read Dr Michael Basset’s comments on this issue from time to time. As he has said, if the Labour Government of 1973-74, when introducing the domestic purposes benefit, had known where it would take us today it would never have done it. But that, of course, is another story. It is relevant, though, to the vast increase in the use of the Family Court.

There is no point in blaming the courts, because the Family Court, or any other court, is only as good as the power given to it by Parliament. Any member of Parliament—and I refer to Dr Nick Smith, the National Party member—has no reason to blame the courts for what they do because the courts only do what we in this Parliament tell them to do. When Dr Smith was a member of the National Government and he disliked the law so much, he had the opportunity then, as a member of that Government, to change the law. He had many years in which to do it, but he never did.

It should be made clear, of course, that it is this Labour Government that is doing something to have some effect on the privacy provisions and the secrecy provisions of the court, under the Care of Children Bill. However, unlike the Labour Minister, I cannot comment too much on that bill, because it is privileged.

New Zealand First will support this bill. We like to support bills, especially members’ bills, in principle, to a select committee. We believe that that is the place where those matters can be debated more fully. Unfortunately, the Justice and Electoral Committee, which should be considering this bill in conjunction with the Care of Children Bill, is coming to the end of hearing submissions on that bill, so some of the real focus of this bill will have been lost.

I congratulate the ACT member for putting this issue before Parliament. I think that as members of Parliament we should always remember: do not blame the courts for anything at all, whether it is sentencing, Family Court secrecy, or whatever. Remember that the power is in our hands as members of Parliament to do something about it.

I rise on behalf of United Future to speak to the first reading of the Family Courts (Openness of Proceedings) Amendment Bill. I want to state upfront that United Future is offering cautious support for this first reading, but I want to signal that we have a range of concerns we want to see addressed during a select committee process, in order to be able to support the bill beyond this point.

The Care of Children Bill promised that it would deliver greater openness and transparency in the Family Court. We have a report from the Law Commission, which has made a series of recommendations that appear to be more moderate than that proposal. I guess, if we had the luxury of time, United Future would have preferred to see how some of those policies were implemented over a year or two as to whether they sufficed, or whether we did need to look at pushing the boundaries, as this bill suggests. But that is not the case.

We have the bill before us now, and I think that like most members of Parliament, United Future members over the last couple of years have been inundated with emails and letters, and have had meetings in constituency offices with people who are angry and frustrated.

Sitting suspended from 6 p.m. to 7.30 p.m.

When we concluded for dinner I was referring to the fact that lots of members will have experienced what I have experienced, which is that they will have been inundated with emails, letters, and people coming to their electorate offices with real concerns, anger, and frustration directed towards Family Court outcomes. The call for a greater degree of transparency in the Family Court has been around for a long, long time. The questions we are asked when we talk to those people are about why there is a need for such secrecy. People say they do not want their personal details kept private and unable to be scrutinised, so I think that Mrs Newman has provided a great opportunity here for the people who do not feel that the Care of Children Bill gave them the opportunity they were looking for to present their concerns about the openness of the Family Court.

We note some of the differences between the member’s bill and the Law Commission’s recommendations, and I think that there is the kind of tension that will need to be discussed if we can get this bill passed through to the select committee. There are questions of how far we go, and how we balance the issues of privacy, so that the Family Court does not return to some sort of grimy Sunday Times exposé of everybody’s personal details, but instead provides the sense of dignity that families desperately need when their lives have turned to mud—as has happened when most families are needing to access the services of the Family Court.

What the public seems to be crying for is an exposure of the trends of rulings that are happening down at the Family Court. The complaint is that if we look at the trends and overall pattern of what is coming out of the Family Court, there is real reason for concern. The truth is that we do not know whether those people are right or wrong—whether they are just reacting to their own disappointment at a Family Court outcome, or whether they really have touched a raw nerve in relation to a real dysfunction that is going on in our Family Court system.

Union of Fathers and groups like that have formed a cohesiveness around their very great distress at Family Court procedures and rulings. I think that that is long overdue, even if there is just a half-truth in what those groups are talking about. We are talking about children’s access to parents, to custody, and to parental orders. They are serious matters that need to be well scrutinised. The public deserves to know that the Family Court system is above board, that the rulings are fair and just, and that we can have faith in the system.

The Greens do not support this bill and will be voting against it at this reading. The Greens understand the desire of the public and those involved in Family Court proceedings to have greater transparency in relation to the court’s process and decision making. The Family Court makes extremely important decisions, and it is appropriate that its decisions are available for scrutiny, particularly if they are precedent making. But we believe that that scrutiny can be achieved without opening the court to public hearings in the way that other courts are open.

The Family Court process is different from other courts. For example, there is a clear public interest in the administration of justice in criminal matters as part of the social contract between citizens and the State. When a person commits a crime that person technically commits the crime against the State and not the victim of the crime. Citizens have, in effect, given over the responsibility to hold the accused person to account to the State for conviction and punishment, but consequently are entitled to hold the court, as a State agent, to public scrutiny to ensure that that obligation is being met fairly and properly.

The matters that come before the Family Court are quite different, particularly in cases involving the care of children. Many of these cases do not involve any form of crime or misdemeanour. Rather, they involve the deeply private matters of family relationships that have so broken down that State intervention is needed to resolve them. We believe that the public interest goes only so far as to ensure that the process and decision making of the court is sound, but not so far as to enable the public to inquire into or have access to the details of people’s private lives. Therefore, we do not support the opening of the proceedings to the public, nor do we accept that a presumption in favour of openness to the public provides sufficient protection for the privacy of families. Such a presumption requires the continual surveillance of the court and its assessment as to whether the privacy of the parties involved is of sufficiently high value that the public should be excluded.

This bill takes that presumption even further in requiring that only in exceptional cases would the sitting of a Family Court be closed to the public. In the view of the Greens, that presumption cannot be justified. The privacy of the parties involved should be presumed to be of a high value and deserving of protection. Because of the nature of the matters that come before the Family Court we consider that a presumption in favour of the privacy of the parties and the children concerned is a better balance. There are already provisions in law that allow for the reporting of cases without personal details being revealed, so in our view this bill does not significantly add to the reporting abilities around the Family Court.

The Justice and Electoral Committee has considered the matter of the openness of the Family Court in the Care of Children Bill and will report back to the House with its recommendations on the issue. We believe that the select committee process on the Care of Children Bill has enabled the public to have its say on the question of openness of the courts. Given the nature of the matters that appear before the Family Court, and taking into account the competing public and private issues, the Greens cannot in good conscience support this bill.

The purpose of this bill is stated to be transparency and openness, but unfortunately it goes a lot further than that. Despite what has been said in the House this evening, it actually goes against the advice of the Principal Family Court Judge in two very material respects. First, it assumes that the present environment is one of secrecy when, in fact, it is about protecting people’s privacy. And these are private and personal matters where the issue of privacy should be something that is subject to being supported by this Parliament rather than vilified. This is a civil jurisdiction, as Metiria Turei has just correctly pointed out. It is a matter between parties. It is not between the State and another party; it is between two parties. The State certainly does provide in respect of the Family Court and the law that surrounds it, but essentially the law is about encouraging parties to settle matters between themselves, but at all times directed to the best interests and welfare of children. That must be a question we have to ask ourselves—whether the best interests and welfare of children are, in fact, reflected in the kind of opening up of jurisdiction that this bill would entail.

The second area where I think this bill goes against the advice of the Principal Family Court Judge is that he has said himself publicly that he did not want to see the Family Court become a modern-day version of Open Home where neighbours could just pop in to see what was going on in their neighbourhood in respect of a family relationship that was breaking up. I agree entirely with his position, which is why I do not support opening the court up publicly. I think it is a shame that this bill has come up in the House only a week before the Justice and Electoral Committee is due to report back on the Care of Children Bill and, of course, it would be out of order for me to mention what we will be reporting back in respect of that bill, but I suggest that members should watch this space. There are changes that are going to be made to the law that will address some of the concerns that have been raised.

Nick Smith, in his contribution to this debate, said that Shannon Pakura, the Department of Child, Youth and Family Services’ chief social worker, had expressed concern about opening up the court, saying that the public would be horrified at what adults inflict on one another and their children. Nick Smith has made this comment in more than one newspaper around the country. He is reported as saying this in the New Zealand Herald as he was the other day in the Christchurch Press. The trouble with his position is that he has completely misunderstood and misrepresented the position of the chief social worker. She in fact was saying it would be a good thing to open up some decisions from the Family Court so that the people could see and could be horrified at what adults inflict on one another. I want to put on the record that her position is one that I support. There does need to be some opening up, but I do not agree with how far this bill goes. I think it is wrong of Nick Smith to comment on officials opinions without looking at what was said. She actually thought it would be a good idea because most New Zealanders would be appalled to find out what does still go on in some family homes today.

If there was one message that I could give to separating parents—it does not matter whether the parents are married to each other, what gender they are, or what sexual orientation they have—it is to please set aside their personal and private interests, the feelings of regret, despair, and grief that they might feel about the end of their own relationship and remember that as two adults they have an ongoing responsibility to an ongoing relationship with their child or children. They must set aside every issue they have with the other parent and reach an agreement that is in the best interests and welfare of the children. We would not need a bill like this if that is what every parent did.

I rise for the ACT party to speak in favour of my colleague Muriel Newman’s Family Courts (Openness of Proceedings) Amendment Bill. This bill has been pending for a very long time; essentially since I came to Parliament in 1999. I remember Dr Newman meeting the distraught victims of the Family Court right back then, and occasionally asking me for comment on some of the legal issues.

I had never practiced in the family law area, and I had no knowledge of it. I was quite glad not to, because so many of the circumstances seemed so hopeless in terms of the unhappiness on both sides. But I have had to acquire a little knowledge, and recently I made it my business to read the sequence of decisions in the case that saw a lesbian couple obliged to share the custody of their son with the father who had signed a contract to enable them to have that child.

As I went through those judgements, I became really angry—not at all of them, and I will not name individual judges or set my view of family law up against individual parts of that saga. But suffice to say that, as a lawyer, I could not trace the principles through many of those decisions. I went to a very well-known text writer in this area, a man who is regarded as one of the experts in family law, and asked if I was missing something. I asked if there was something wrong, because I had tried to follow the reasoning, and I could not see that it was more than good intentions and discretion by the judges involved. He said to me that that was what family law was, and that in many cases it was actually wrong to call it law. It is just people making their own consciences feel good, using the discretions vested in them.

That would not be possible if this were a properly open court. It would not be possible for the family law jurisdiction to be essentially so unpredictable that the number of cases that have to go to the Family Court beggars all expectations of someone like Dail Jones, who was here when the Family Court was born. When New Zealand First’s Dail Jones was here as a National Party member, the fond hope was that the informality, the mediation jurisdiction, the encouragement to settle, the lack of fearsomeness, and the user-friendliness would mean that there was far less litigation. What have we reaped? We have reaped the exact opposite—the unintended consequence of refusing to do justice, and instead trying to achieve a feeling of virtue on the part of the judges. This is not law, because the judges do not have to make it law when they are not constantly under scrutiny.

I spent a little time talking to a United States lawyer who had been counsel in the Donald Trump case, which we read about in detail here, and again in Boris Becker’s case. She was here on an exchange, and she pointed to what she thought was wrong—that because there is no publicity of these cases in New Zealand, the incentives to settle are too inadequate. The prospect of having one’s dirty linen washed in public is a very great incentive to settle for the party who is most wrong, who has been the greediest or the harshest. Her view was that the American public ended up with a reasonably good, crude folklore understanding of family law principles, whereas the New Zealand public never got that exposure. They did not have the cause célèbres—the cases that told them.

We saw it with Dr Smith. Dr Smith was prosecuted, and when the Family Court judges finally released the other side of the story, another view was taken. If that had been available to the New Zealand public, and to him right at the start, he might never have had to do what he did.

One of the speakers we heard on this bill before the dinner adjournment was Nicholas Rex Smith. Nicholas Rex Smith was the defendant found guilty of contempt of court in February this year for breaching the rules of this country. We in Parliament are in the privileged position of being able to change laws. Until we do, we are bound by them. I think the lamentable conduct of Nicholas Rex Smith—Dr Nick Smith, as he is known in this House—ought to be put on the record of Hansard and I intend to do it now.

Nicholas Smith was charged with contempt of court arising out of his conduct in Nelson in 2003. His conduct is referred to in the judgment, which runs to 20 or 30 pages and thoroughly analyses the issues. He was properly represented by a Queen’s Counsel in that case, and stated his case. New Zealand’s High Court found him to be in contempt; his conduct was contemptible. What did he do? He tried to influence court process. What did he do? He rang up individual litigants.

The background to this case is that some parents had voluntarily given up custody of their child. The caregiver of that child had custody. Nick Smith had a visit from the parents, who had changed their minds and thought that the decision of the court, which they had consented to, was wrong. He rang up the person who had care of the child and put incredible pressure upon her. What did he say? One of the things he said was: “Don’t you feel guilty for stealing [the mother’s] child?” He later denied making that comment. The court did not believe Dr Smith; it believed the person who received the call—the caregiver of the child. He did say: “Don’t you feel guilty for stealing [the mother’s] child?”

He also said he was a member of Parliament, which was the highest court in this land, and that everyone was answerable in Parliament. He denied that statement in court. Did the court believe him? No, the court believed the person who received the phone call. Dr Smith was accordingly found in contempt of court, because he was trying to influence the process of the court. He went further. He did not just put pressure upon that poor person who was legally going about her business; he actually put out a press release. One reason the court did not believe him when he said he did not steal the child was that the media release he put out about the same time said that this case almost amounted to State-sanctioned child stealing. That was a disgusting episode. Members opposite ought to acknowledge that their colleague Dr Nick Smith behaved abominably and accordingly was found in contempt of court. His behaviour was outrageous and contemptible, and accordingly he was penalised by the court.

What was the response of the fine, upstanding National Party members? When Dr Smith arrived back, rather than say that his conduct was unacceptable, they gave him a standing ovation as he walked into this Chamber. You should be ashamed of yourselves. Sorry, not you—

💬 Rodney Hide: I raise a point of order, Madam Speaker. I believe Mr Parker owes you a withdrawal and an apology.

Speaking to the point of order, I have already withdrawn that comment.

💬 Madam DEPUTY SPEAKER: The member will withdraw and apologise.

I apologise for bringing you into the debate, Madam Speaker. National members ought to be ashamed of themselves for giving a standing ovation to one of their members who had been found in contempt of court.

I see that Mr Carter is now on the telephone to bring Dr Smith down to defend himself. Dr Smith should stand up and defend himself, because his conduct was contemptible and was found to be in contempt of court. We who have the ability to change the law should, of all people, honour the law until it is changed. Dr Smith ought to be pilloried, not just by this Chamber but by the press, for his contemptible conduct.

What an amazing contribution that was! The people who should be ashamed of themselves are those Labour Government members who, supported by the Green party, will fail to send this bill to a select committee, in spite of its importance. I suggest that this bill should go to the Justice and Electoral Committee. It has been dealing with the issues of openness in the Family Court for some months now as it has gone through deliberations on the Care of Children Bill. It is in a very good position to deal with the very important issues that this bill raises.

When Chief Family Court Judge Boshier came in front of the committee, he suggested to members that the proper vehicle to deal with the issue of openness was not the Care of Children Bill—all that can do is tweak the rules that already exist—but that the issue needed its own bill. Here is its own bill, right now. We have heard from the Government that it wants to wait for the Law Commission to do something later on in the future. I say that that puts the issue on the never-never. We want an open Family Court to be debated, looked at, and looked into by a select committee, right now. New Zealand deserves that. All those families out there who know the problems with the Family Court and who are victims of the Family Court, and all those children who are suffering because of the Family Court, need to know that Parliament is taking this issue seriously and will send this bill to a select committee.

Under this bill, judges will retain the power to control their courts—to essentially close the court on a case-by-case basis, and to suppress the names and identities of individuals. But the whole being, if one likes, of the court, is the presumption that it will change from being closed to being open. That is the key change this bill makes, just as select committees used to be closed at one time until that presumption was changed, and now they are open. That is simply the core change that this bill will introduce.

The benefit is that we will see transparency in the whole family law area. We will see a reduction in the number of cases coming before the court. We will see a reduction in the cost to the taxpayer and the cost of legal aid in this very fraught area—in which, as we know, every year the costs have been increasing. We will see a reduction in the warfare that goes on between separating couples, as they look ahead and say to themselves: “Shivers, we can see the fights we will have in the courts, so therefore let’s go to mediation.” At the moment those couples do not know. Many couples stumble into litigation because they cannot see what is in store for them. I suggest that if many of them could see the problems ahead, they would opt to mediate. That means the warfare that children get involved in will diminish, and the number of false allegations that are made in the Family Court will go down, as well.

A lot of has been said about the need for private affairs not to be aired in public. We know that Family Courts are very small courts. The number of members of the public who could attend would probably be just a handful. We are not talking about masses of people going along. In fact, the Family Court is open for many of the cases it deals with, and the judges told us that nobody ever comes, and no media ever attend. I suggest that this is a red herring. The point is that if people have private affairs that they want to keep private, and if the Family Court is open, then they should sort them out in private.

Today the Labour Government has the chance to do something right. It has the chance to send an important issue to a select committee to signal to New Zealand that it is taking this issue seriously and that it wants to do the best thing for the future of New Zealand. If it votes this bill down, then it is signalling once again its arrogance and its desire and determination not to care about the issues that affect so many families and alienate so many children.

I want the Minister to remember that if the bill is sent to a committee and we have a truly open court, child abuse in New Zealand will go down. If for no other reason, that Government should see that this is a very important mechanism to try to improve an area in New Zealand that is a shame to all of us. I urge the Government to send this bill to a select committee.