Family Courts Matters Bill

It is my pleasure to stand tonight and address Part 6 of the Family Courts Matters Bill. Part 6 amends the Family Courts Act 1980. While this bill was going through the Social Services Committee, which I was lucky enough to be on, I do not think we actually realised that it was such a technical bill. We had some fantastic help from our officials, who are here today. I acknowledge them and thank them for all the work they have put in. The bill went backwards and forwards between the committee and the officials many, many times. We had many redrafts because of the way this bill was put together. It consists of 12 parts. Each part affects a different bit of legislation, and it all refers back to one or two parts of the legislation, which are basically in Part 6 and Part 7—the big parts.

Part 6 deals with the publication of reports of court proceedings and with who could make that publication. There was great concern and debate in the select committee, and amongst submitters coming before the committee, about what type of person could be reported on in those proceedings. It was decided that people could report on proceedings that happened within the hearings, but that people could not report them if they involved a person who was under the age of 18 or who was considered to be a vulnerable person, without getting the leave of the court to report on the proceedings and publish them.

It was really the publishing of proceedings that submitters were concerned about. They were concerned that vulnerable persons or young persons under the age of 18 would not understand the consequences of the reporting, and they were concerned about what would happen later on when those people matured a little bit and understood that that information was out there for everybody to see. Submitters thought that maybe that would not be what those persons wanted after all, because they did not have the maturity at the time or they were too vulnerable at the time to understand the consequences. We had a big discussion on that matter and a lot of submitters came and talked to us about it.

I want to talk about one submission in particular, which was from the family law section of the New Zealand Law Society. Its representatives put forward some strong submissions in relation to this bill, which we took on board. We listened to their views about publication. We made no recommendation on the back of them, but we took their views on board. The Union of Fathers had a lot to say on the area of publication, as well, as did the Family Court judges. The judges had quite a bit to say on publication and on how vulnerable people are when that sort of information is published, because in this day and age, when everything goes on the Internet quite instantly, it is hard to retract something after it has gone out.

I am taking just a short call to say that National is supporting Part 6.

I thank that member, Katrina Shanks, for her contribution and for highlighting the difficulties we have in the area of publication of proceedings in the Family Court. I have always started discussion on this issue by saying that family matters are essentially private matters, and private matters are not necessarily for publication. That is what makes the Family Court different from a number of other courts.

A lot of family matters were, historically, held in open court, and I think that members here who are a bit older than me would recall those days—Russell Fairbrother does—when divorce matters were reported on in great detail in the papers because there were salacious details that we could pick over and so on. What was happening was that the open, public scrutiny of divorce proceedings was putting a tremendous amount of pressure on the family and the people concerned. There was a lot of distress and trauma, and the publicity around these cases made the hurt and cuts much deeper for people who did not deserve it. The public gaze made things much more difficult.

We have had a long history in New Zealand now of having the workings of the Family Court essentially stay private. There has been a lot of discussion about this matter, because some elements have continued to argue that the private nature of the Family Court means secrecy, and therefore secrecy means wrongdoing. They argue that the Family Court is not subject to public scrutiny and that public scrutiny would somehow improve the workings of the Family Court. Well, I do not subscribe to that view. Personally, I think that if it is a family matter, then it is a private matter, and that the Family Courts should be closed.

But there are matters that need to be reported. The member Katrina Shanks has highlighted the difficulty in finding the line between what should and should not be reported. Of course, we want to have material from the Family Court published so that people can understand what the case law is, can understand the precedents being set by the Family Court, and can therefore make judgments about how to handle their own cases.

There are issues about publishing information about people who are under the age of 18. We have made changes in the Family Courts Matters Bill. We have made changes for people who are subject to other orders in care, to make sure that their position is not exploited by other people. The concern of this legislation is to ensure that those who have their affairs managed by the Family Court are not brutalised by the unnecessary and often unwanted publicity that could follow if the court were to be open.

This particular part of the bill has a number of other amendments being made to it in Supplementary Order Paper 201. The Supplementary Order Paper seeks to make changes to the Family Court by allowing the Family Court to appoint a senior Family Court registrar. This is a new position that has been sought by the judges in the Family Court because quite a large amount of their time is taken up in dealing with purely administrative matters. The Family Court judges want to be relieved, or to have the potential to be relieved, of these administrative matters so that they can concentrate their considerable powers, energies, and abilities on dealing with the important matters to be heard by the court.

The matter has been raised with the Ministry of Justice, it has been forwarded to the Law Commission for comment, and the Supplementary Order Paper that we have in front of us has been drafted by the Law Commission. The Supplementary Order Paper sets out in new section 7B(1), to be inserted into the Family Courts Act by new clause 42A, the matters, with quite a degree of particularity, that the senior Family Court registrars can undertake. It sets out the regulations that can be made by Order in Council. The qualifications the registrar will have to have in order to exercise these powers are also set out by Order in Council.

I have spoken to a number of parties in the House on this matter. I recognise that the Supplementary Order Paper came late, and I would have liked to have done it somewhat differently, but the opportunity to amend legislation around the Family Court comes very rarely and it seems that this is an ideal opportunity to take this matter forward. As I have expressed to the Committee, the Supplementary Order Paper has the blessing of the Law Commission and of the judges in the Family Court, and it also has the support of the Ministry of Justice.

I put forward this Supplementary Order Paper genuinely believing that it will lead to a considerable enhancement to the Family Court. This does not mean that we will have a senior Family Court registrar appointed in every Family Court; it means, circumstances warranting and funding allowing, that we have the capacity to appoint Family Court registrars who will be able to deal with interlocutory matters, applications that are made without notice, pre-hearing conferences, uncontested applications, applications for leave, matters that are consented to by all the parties, confirmation of orders that are made overseas—these are orders that come in from foreign jurisdictions, which will outline what the circumstances are; the senior Family Court registrar will be able to deal with those—the holding of inquiries, and the enforcement of orders and other directions.

It is quite an extensive amount of powers and responsibility. Taking these matters off the Family Court judges will leave them free, then, to deal with cases that they need to determine, and hopefully will leave the judges in a better position to deal with judge-led mediation, where they will be talking directly to the parties and helping them resolve their issues.

What is not widely understood is that about 94 percent of all the applications to the Family Court are resolved by the parties themselves. Only about 6 percent of the applications to the Family Court are actually decided by the Family Court judge. The whole emphasis of the Family Court in recent times has been to encourage the parties themselves to make their own decisions. The belief is that if the parties themselves—the mother and father and the parties to this disagreement—work through a process of mediation, whether it be with non - judge-led mediation or judge-led mediation, and resolve the issues themselves, those decisions will then be much stronger and much more binding on the people involved, because they will be their decisions. They will have made their own decisions about how they are going to lead their lives. It is important for us to give our most potent capacity in the Family Court, the judges themselves, the maximum opportunity to work with the parties who apply to the court.

I would dearly love to see that 94 percent of parties resolving their issues themselves increase to 95 percent, 96 percent, or even 99 percent. If that were the case, then we would have a Family Court that is working at its absolute capacity. I am sure that it would be lovely to see everybody making their own decisions about their future, but that is unrealistic. There are cases that come before the Family Court where the parties are so intractably opposed and so entrenched in their views that it is impossible to negotiate a solution. The Family Court does all it can to solve that problem, but it is not always within the capability of the Family Court to do it.

The last point I will make while I am speaking about the Family Court is to note that a lot of emphasis has been placed lately on bringing the children into this process. A lot of material is supplied to the parties by the Family Court about the children, how they are involved in the process, and how it is affecting them. In the Family Courts Matters Bill, members will see other changes where we are providing counselling for children in Family Court disputes. This is strengthening the Family Court’s capacity to engage with the children in these difficult circumstances. The belief is that by engaging the children in counselling, while at the same time dealing with the parents, we will actually bring about better decisions that will involve all the parties—the parents and the children—and with everyone being involved and agreeing on these decisions they will be more binding and more valuable to the family.

That is the role the Family Court wants to play. It is not to be directive, if it can possibly be avoided; it is to bring the parties together so that they themselves can make their own decisions about how they will lead and organise their lives.

I rise to speak on this Family Courts Matters Bill about the matter that I raised earlier, and I thank the Minister for getting a briefing earlier on this particular provision. I think that the type of embarrassing court case he was thinking of involved what used to be a ground for divorce known as a restitution of conjugal rights. As it happened, the case of that kind in 1963 that I heard about involved a former Deputy Prime Minister of New Zealand. With Mr Leary QC on one side and Mick Robinson on the other, it was a very interesting case. The marriage had obviously broken down and I do not want to say any more about it than that. But those types of court cases were all got rid of when we introduced the Family Courts Act in 1980, and I happened to be in Parliament at that time.

I want to raise with the Minister new clause 42A on Supplementary Order Paper 201, which inserts new sections 7A and 7B into the Family Courts Act. It seems clear that the person who could be appointed as a senior Family Court registrar may or may not be a lawyer. I would ask whether that is the Minister’s understanding of the matter. He may wish to comment on that, because on the face of it that person does not have to be a lawyer.

New section 7A states that a person to be appointed to this role is “by reason of training, experience, and personality”—I have never seen that in an Act of Parliament—“a suitable person to hold office as a Senior Family Court Registrar.” I ask whether that means that the person has to be able to tell jokes all the time, sing, or be on Dancing with the Stars or something like that. Why do we have the reference to personality? It is a very new one and I will be interested to see how it goes.

💬 Hon Clayton Cosgrove: Rodney wouldn’t get there!

No? All right. I would ask the Minister to explain whether that person has to be a lawyer or whether, on the face of it, it could be anyone.

The other thought that occurs is whether the Minister has any idea as to how well these people will be paid. This is quite a practical consideration and it is often not set out in legislation. Will they be paid on some known State scale, be paid on a legal aid rate—in which case we will never get anyone to do the job—or be paid on some other basis? I think that the public could find that quite interesting.

New section 7B(4) provides: “Any party to any proceedings who is affected by any order made or direction given by a Senior Family Court Registrar may apply to a Family Court Judge to review that order …”. One can see that happening quite often on the part of the recalcitrant types of litigant one can often get in the Family Court. They believe that they could never possibly be wrong, and believe that the other party is in the wrong and that they are always right. I ask whether the Minister has given any consideration to the question of orders for costs and suchlike, and to making it a little more punitive for people who waste the time of the senior Family Court registrar and the court—those who just appeal for the sake of appealing or seek a review for the sake of getting a review.

I see that new paragraph (g), which is to be added to section 16B(1) of the Family Courts Act in an amendment to clause 47 on Supplementary Order Paper 201, states: “prescribing the qualifications required to be held by persons appointed as Senior Family Court Registrars.” There is a bit of a conflict between new section 7A(2) and this provision, and perhaps the matter could be clarified by the Minister or his officials, as the case might be.

I turn to clause 44, and I do so having been one of the few people—I guess my friend Mr Dail Jones and perhaps Dr Richard Worth are the others, and perhaps Chris Finlayson—who have worn a wig and a gown in their time in the court. I have to say that when clause 44 first came before the Social Services Committee I looked askance at the provision that we would be returning to the wearing of gowns by judges in the Family Court. But as has been said by the Minister, the Family Court has moved a long way since the days of open court. When I first started appearing in court we would don our wig and gowns to go down to do decree nisi and decree absolute, and it would be a great turn-out for the lawyers. It was always followed by a trip to the local chambers where hot liquids were served, and we celebrated generally our success of undefended proceedings. Then we sent out substantial bills to the parties, who had long since started living apart some 4 years previously, and we reminded them that only then had they become divorced.

The days have moved on since then and it has all gone under cover. When it went under cover the Family Court rooms were built, they were built small, the judges sat at the same level as the parties, and informality was the order of the day. Of course, some Family Court judges could not adapt to informality. They had spent their lives being lawyers with their noses in the air and they tried to become informal judges, and Family Courts often became a bit of a charade. But time has moved on. These days the Family Court judges have come from a Bar that has known only a closed Family Court, so I was somewhat surprised to see this provision that enables a judge sitting in a Family Court to wear a gown, but not to wear a wig. Now by that I take it that if a judge has a hairpiece, it is not covered by this provision. When I look at the definition in the clause the term “wig” is not actually defined. I presume it means a wig in the common law sense, which is the horsehair wig that we all wear and that some of us keep propped up in our rooms in this building just to remind us what real life was about.

💬 Hon Rick Barker: I hope you dust it legally!

It is powdered, not dusted. One never washes a wig, nor does one have it dry-cleaned. One just adds talcum powder to it to refresh it, and if it gets too stuffy one puts one’s finger through the top to let some air in through the horsehair. So I presume this provision means that a judge may wear a toupee or a hairpiece but not the classical wig, which is made from horsehair, and may wear the gown.

I wonder why that is, because the whole idea of judges is that they assert their authority by the sense they make. This is a request that came from the bench of the Family Court through the Principal Family Court Judge, Peter Boshier, a man who went to law school with me. At that time he was very much a left-wing, longhaired radical, who took to wearing a suit when he was admitted to the Bar and went on to higher things. Wearing a gown in court must therefore be important to some Family Court judges to assert their authority, although in my time of appearing in the Family Court, over perhaps 10 or 15 years, I never thought the clothing of the judge made much difference. But if the judge wants to wear a gown, then I say let him or her wear a gown. We have to draw the line at wearing a wig, although that takes me to a school of thought in the Family Court that it is not really part of the District Court. It regards itself at a slightly higher level than the District Court and would like to see itself elevated to the level of the High Court.

There has been some talk that there should be a separate Family Court jurisdiction rather than it being a division of the District Court. We see that from time to time the Family Court insisted on its reports being headed as in the Family Court rather than the District Court, and it asserted a degree of tino rangatiratanga that many of our Māori people would desire. The judges got their own way; the Family Court is identified as that, but it still remains an adjunct of the District Court. It aligns itself more with the District Court because judges in formal proceedings there wear a gown, and the Family Court judges clearly want that same status. I guess it does not matter to me whether a Family Court judge wears a gown, but if he or she wants to relieve the boredom and stick a gown on to go into court, then so be it.

I note, as a reminder, that lawyers appearing in the Family Court must not wear a gown or a wig, and I guess the wig qualification again applies. By this we are referring to the traditional horsehair wig, which no one wears anywhere now, not even in the Supreme Court. Wigs are worn only on ceremonial occasions, such as the admission of a High Court judge to the bench, and if someone is one of the few counsel from New Zealand still appearing in the Privy Council, then he or she gets to wear the wig and gown.

I was somewhat surprised at this provision, but having discussed it with the judge who appeared before the select committee I am satisfied that it was a decision that judges felt was important in some cases when they need to impress parties with the severity of the orders they are making. I have to say that the orders made in the Family Court are serious orders. When the judge hands down the order, it requires the parties to listen carefully and to take cognisance of them. I did a case once of a chap who fought long and hard to keep custody of his daughter from the mother, whom he described as being a most undesirable woman. His case was somewhat helped by her appearance in the Listener; it was an anonymous two-page article about her night-life profession. He fought long and hard to keep his daughter, but eventually lost. After an access visit he refused to return his daughter. He would not tell the bailiffs where his daughter was when they came to pick him up, and he was charged with obstruction. It was argued by us right through to the High Court that doing nothing could not be an obstruction, but the law has its way of bending to meet a situation to do what the judge thinks is right. That set the precedent that a parent who had been before the Family Court and who was ordered by a judge to do something and did not do anything was guilty of the summary offence of obstruction. I guess the need to wear a gown in the Family Court is a way a judge can emphasise the grandeur and the importance of the occasion.

I turn now to clause 45, “Attendance at hearings”. This broadens the area of parties and people who can attend Family Court hearings. When the Family Court went under cover in about 1979 the privacy of the proceedings were jealously kept, and, as I have said, the Family Court rooms were built small; the parties were the only parties therein, plus the registrar. Certainly no family or friends, and no witnesses, were allowed to remain. There has been an easing of that, and the Family Court rooms are now being built to large proportions because it has been found that some of the old style of advocacy, even in the inquisitorial Family Court, still requires a degree of space and support.

Hereafter, clause 45 amends the Family Courts Act by the insertion of new section 11A to include those who may attend at hearings, such as officers of the court; parties to the proceedings—of course, that has always been the case—lawyers representing parties to the proceedings, which has always been the case; witnesses, which is somewhat of a departure from the old practice; and accredited news media reporters. I think this first came in under the Care of Children Act that we passed a couple of years ago. This provision updates all the Family Court proceedings to that level. It also includes persons whom the Family Court judge permits to be present as support persons for a party on a request by that party, and any other persons whom the Family Court judge permits to be present.

This leaves a high degree of discretion in the hands of the Family Court. The Family Court judge is obliged to allow news media in, unless the Family Court judge considers, under subsection (4), that it would be desirable to keep the news media out. There is a presumption in this bill for the news media to attend all Family Court hearings. I have to say that the news media would be disinclined to attend most Family Court hearings because when they are not tragic there is very little comedy, and most often they are terribly sad but boring events. When what is played out in the court is a part of what is often in the court papers before the parties and the judge, anyone listening would not have the whole picture because a stack of affidavits and other reports and documents that the parties in the court proceedings speak about are needed. Unless the media are also allowed by the judge to peruse the documents in the court, there will be a bit of a battle to get an accurate report by the news media. The judge, of course, would have the power to enable a representative of the news media to peruse an affidavit if he or she thought it was necessary to get an accurate and objective view of the reports. Having said that, I note there has not been any rush to report family cases since that provision was changed under the Care of Children Act, and I do not imagine that very much will change here unless there is a matter of some great importance.

What critics of the Family Court often fail to realise is that the Family Court does not operate on the system of precedents. Perhaps it does in the area of matrimonial property but in most other areas, such as custody, care of the children, and guardianship issues, all Family Court judges’ decisions are essentially fact-based. Because of that the law of precedent, which is the golden thread of our common law, does not apply very often at all in the Family Court. The need to have detailed reports of Family Court proceedings to guide lawyers is not as desperate and urgent.

Part 6 of the Family Courts Matters Bill is largely about the openness of the court. It covers hearings, the reporting of proceedings, and the sort of identifying information that can be used. One of our submitters, who I think would describe himself as a victim of the Family Court—he had not had a happy experience—made the very good point that nobody actually wants openness for itself; they just want people to know what is going on. This issue is not about returning to the days when one’s private matters were splashed across a special page of the Truth newspaper in the weekend. It is about ensuring that the judgments and processes that go on in the Family Court are transparent enough. Certainly to date this court has a history of men, in particular, feeling aggrieved by the processes and feeling that there is bias in the court. That, of course, is strongly denied by those who work in the court and act in the interests of the court. Is the issue that where there is smoke, there is fire? We have to accept that there has been a high level of dissatisfaction in this area. The belief is that if we could make the courts more open, that would bring them into line with the concerns that a certain sector has.

Another submitter made the point that she believes that judges should be required to give an explanation if they choose, for instance, to exclude somebody from a court hearing, so that, again, it is clear what they were thinking at the time and what brought them to the point of excluding somebody.

There has been a new openness for the media in the Family Court. I think a previous speaker has spoken about the fact that although some fears arose during the debate on previous bills before Parliament that this situation would become like that in the old days, that has not actually happened. The media has not shown a high interest in the ongoing concerns of the Family Court. Because of that, there is also a belief that these new provisions possibly may not offer children, in particular, any additional protection.

One of the interesting issues is that currently if the proceedings of a case in the Family Court are published, identifying information must not be used. That is clearly articulated in the bill. One of the things we learnt from submitters—Professor Bill Atkin was one submitter who, I remember, talked about this—was that that created a problem for law journals and for documentation that is particular to the legal fraternity and court staff. When identifying information is written in a coded or concealed way, that makes reading court cases extremely complicated, because alphabetic letters are used to refer to people—“A” said something to “B”, and that affected “C”, who was then related to “D”, and so on. It becomes extremely difficult to try to make sense of a court case minus the identifying information.

The Family Court covers cases that arise under the provisions of several Acts of Parliament, each of which has its own differing publication rules. The Children, Young Persons, and Their Families Act and Care of Children Act were two Acts that were pointed out to us. Professor Atkin suggested that the Family Court would possibly be the better if there was a more generic set of rules covering all cases, regardless of which Act was being enforced or which Act the case was being heard under.

Part 6 also talks about avoiding unnecessary formality. Yet we must balance that against the fact that judges have requested the ability to reintroduce gowns. My understanding, when I made some inquiries as to why this was being considered, was that it was because there was some concern on the judges’ part that although the court had become more informal in order to reflect the types of cases it deals with, and particularly because family matters are always sensitive and do not necessarily require the same level of formality as other matters, what had happened in some cases was that a sort of complacency had developed, and a bit of a disregard had set in for the authority of the court. There was a feeling that it may at times be helpful, as a visual reminder of the authority of the court, for a judge to wear a gown in order to remind the people involved in cases of the status of the court and of the judge’s role. I can understand that, but I think we have to be careful that proceedings do not become too formal. Certainly, the trend in the Family Court has been to move towards greater informality.

When we spoke to Judge Boshier, he welcomed the provision of the bill that improves the openness of the court. He also suggested some generic publication provisions instead of one provision in each statute. He felt that the easiest way to fix the problems that professional documents have with the publication restrictions would be for that matter to be addressed by regulation. He did not feel that we necessarily needed to change the legislation, but that we could look at some simple regulations that would mean that for certain publications that were not available to the general public but were used by the legal fraternity, the restrictions could be waived and the problem could be fixed in that way.

A concern was raised—and it is probably one of the most interesting concerns about the area of openness—that the bill would allow children themselves to publish court details and judgments. The concern was that we had not defined the word “child” sufficiently, which meant—although this sounds like an extremely unlikely scenario—that a 5-year-old could act on his or her volition and choose to have the details of a case published. Of course, particularly when one is talking about young children, the fear is that children could be manipulated by the adults in their life to publish details of a court case in order to meet the interests of the adults, often for vexatious reasons. The fear is that children could be used as puppets. There was some discussion at the Social Services Committee—and certainly a number of submitters talked about this issue—as to whether a child himself or herself could initiate the publishing of the details of a case and the judgment on it.

The Family Court website apparently already puts up judgments for viewing, but they are difficult and complex to get the hang of, because the lack of identifying information makes the reading of judgments quite difficult. So this is actually quite an important part of the bill.

One of the other issues concerned the definition of a vulnerable person. A vulnerable person is not necessarily only a child. A person is vulnerable if he or she is able to be identified. A vulnerable person may also not necessarily be a child now but, for instance, if a court case is published at a much later date, may have been a child at the time when he or she and the family were embroiled in that case. Ten, 15, or 20 years later, someone can still be quite vulnerable to the publication of those details. We had to shift our thinking away from just the immediate impact on young children to a much wider consideration of what it means to be vulnerable as a result of the publication of identifying information, and of what openness could mean if it were provided in a way that would put people at risk.

Mr Chairman—[Interruption] I accede to the request from the members on the opposite side; yes, I will speak again. I want to talk about clause 45.

💬 Dr Paul Hutchison: Tell us more about horsehair.

Horsehair! The member probably wears a horsehair singlet for all we know—the way he conducts his life. Clause 45 adds section 11A to the Family Courts Act 1980. Subsection (1)(f) refers to “support persons for a party on a request by that party:” and subsection (5)(ab) states that nothing in that section limits in any way the right of a person to have a McKenzie friend present.

There is often a lot of misunderstanding about what a McKenzie friend may be and what a support person does. A support person is someone who is there for emotional support and comfort. The mere presence of that person in the court is sufficient. They do not take any part in the proceedings. They do not give advice to the person they are supporting. They are there merely as a form of comfort and security. That provision was introduced into our courts probably in 1975, in the Crimes Act, in the sexual violation legislation where a support person was allowed to remain in court to support a witness, but was never allowed to talk to the witness or touch the witness, unless the judge allowed because there needed to be a moment for the witness to compose him or herself. That, essentially, is the role of the support person, and in the Family Court there is no reason why it should be any different.

That contrasts considerably, however, with a McKenzie friend. The term “McKenzie friend” floats around like the term “the Queen’s Chain”. People talk about it but very few people understand what it is. It is like the term “paper roads”. Everyone hears of paper roads but not many people know what they are. A McKenzie friend is a relatively new concept. We imported it from Britain, as we did with most of our law, both good and bad, and a McKenzie friend is truly a product of the common law. The advisers point me to it first being cited in 1970 in the All England Law Reports, in the case of McKenzie v McKenzie, where I daresay the term arises from either McKenzie the plaintiff or McKenzie the defendant. It is not identified in the documents I have.

A McKenzie friend is someone who sits in court and assists the litigant. One does not have a McKenzie friend if one is represented by a lawyer, but if one is a lay litigant and is conducting the case by oneself without legal advice, then one can have a McKenzie friend in the courtroom. That McKenzie friend can take notes, fetch documents, draw one’s attention to documents, and whisper advice on what one should perhaps say or do or the questions to ask. But the McKenzie friend has no right of appearance. A lawyer has the right of appearance at the Bar, and stands in place of the litigant, but a McKenzie friend is never elevated to that position. The McKenzie friend has no right of audience. That means he or she cannot speak to the judge and the judge will not hear that person if he or she chooses to speak, because the role of the McKenzie friend is a substitute for legal advice and is a method of advising the litigant party, when he or she is on their feet, of matters that should be drawn to the judge’s attention. That has to be done explicitly in a quiet way by way of whisper or the passing of notes.

There is not much need for McKenzie friends in our Family Court system, I have to say. This provision was put into the bill, I think, at select committee level because of the emphasis on allowing support persons to be present. It was therefore felt that to keep clear the role of support persons, there should be mention of McKenzie friends. That is why subsection (5) of section 11A, in clause 45, is amended to include a McKenzie friend. But when we think about the way Family Court proceedings are conducted, there can be very few occasions when we can imagine that a McKenzie friend would be relevant. I guess in matrimonial property proceedings a struck-off lawyer could appear as a McKenzie friend and pass notes to a person acting for him or herself on what the law may be and the submissions they should make to the judge, or the line of cross-examination. But in issues of care of children, guardianship, and the like the court operates an inquisitorial method. Accordingly, the judge sets the tenor of the hearings and determines what evidence he or she wants to hear. Most of those issues are resolved at pre-hearing conferences, and what is going to be led viva voce and what will be taken from the papers is predetermined before the court starts.

A Family Court proceeding where a McKenzie friend may appear would be very limited because of the inquisitorial nature of the Family Court in the areas affecting the welfare of children and the well-being of family units that are suffering some dysfunction that brings the attention of the judge. Inserting a provision for a McKenzie friend in section 11A of the Family Courts Act is not in any way meant as an encouragement for litigants to appear unrepresented in the Family Court and to take with them instead a friend who claims to know the law or to know advocacy well enough to advantage the litigant who wants to represent him or herself. The matter is included there really to clarify what is meant by “support person”, rather than to give carte blanche to those who want to be backyard lawyers or who think they can reform the world without a law degree. When one gets a law degree, one realises how difficult it is to reform the world, and one in fact withdraws from that impetus that took one to law school in the first place.

So the McKenzie friend is a very, very specialist role. It is a relatively new role. It is one whose parameters are clearly defined by the common law, and this amendment in the Family Courts Matters Bill is in no way intended to change that definition or to give more power to backyard lawyers who want to help litigants who want to appear unrepresented in court. Of course, there is an old saying, Mr Chairman, as you would well know, that he who acts for himself has a fool for a client.

I rise in response to the questions raised by the honourable member Dail Jones in respect of Supplementary Order Paper 201. Mr Jones asked a number of questions, and I will deal with them in no particular order. Firstly he spoke about the qualifications for the position of senior Family Court registrar. The original proposal from the Law Commission had in it that a person would have held a practising certificate as a barrister and solicitor for at least 5 years, and this was to be the qualification. I felt that by putting that qualification in the statute we would fix that provision for almost all time, as we do not come back to this sort of legislation very often, and if in the future we felt that the qualification was either too high or inappropriate and needed to be changed, then we would be locked into that particular qualification.

The qualifications are now set in the Supplementary Order Paper to be dealt with by regulation. That gives us a flexible way to approach this. I think it is a sensible approach because of all the powers that we want to give to senior Family Court registrars. We might in the future require someone to exercise only one of those powers, not the lot, and in that particular circumstance we might set a different range of qualifications for that person. Being a regulation, it will obviously be subject to consultation, and part of the consultation round will involve the bench of the Family Court. It will come before Parliament and go before the Regulations Review Committee, and if Parliament feels that the regulations are inappropriate, it can say so. So there are lots of checks and balances in this matter.

The second aspect is that if we set it in terms of a legal qualification as a trained barrister and solicitor with so many years’ qualifications, we would then be ignoring the growing trend in the court system—a trend I have encouraged and I wholeheartedly endorse—of the courts training up their own staff over a period of time. It is fair to say that through the past decade a lot of training in the court system has been overlooked and this is to be regretted. The courts are now rebuilding their training capacity and I would like to think that in the future the New Zealand courts will have a training capacity for all aspects of registry work. If in the future we felt that there was someone who had had many years of experience in the registry—it could be 20 or 30 years—and had suitable in-house qualifications, we might look to that person and say that he or she was a suitable person to hold the role of senior Family Court registrar.

The eagle eye of Mr Jones has identified that one of the qualifications mentioned is personality, and he highlighted that. I think we would all agree that this is a very sensitive job and we would want to make sure that the person who held it had the appropriate personality. The registrar will have to deal with complicated situations in complicated circumstances, and very often with difficult personalities. I should have thought that an appropriate demeanour and personality would be critical to any consideration one would give for a person to hold this job and, therefore, I do not have a problem with that.

The last issue raised by Mr Jones related to pay and rations. We have not made any particular specification in the Supplementary Order Paper, and it is unnecessary to do so because this person will come under the State Sector Act. The registrar will be a State sector employee; he or she will not be part of the judiciary. He or she will come under the framework of State Sector Act and there will be an appropriate wage and salary-setting mechanism. I am quite sure that I can put Mr Jones’ unease at rest and say that it will be commensurate with the job and its requirements. I have every confidence that the Secretary for Justice will make sure that the person is appropriately paid and is well supported, as well.

Russell Fairbrother, as always, gave a very illuminating address on the role of wigs and gowns in the Family Court. I found his address very instructive. It was a great trip down memory lane and it brought back a lot of images of the past. I assure Mr Fairbrother that unlike other people in other circumstances, we are not racing back to the past. I just emphasise the point of why this provision is here. There has been a high degree of informality in the Family Court. This is to be supported and encouraged, and it will continue, but the Principal Family Court Judge made the point that on occasion he felt it was necessary to indicate to parties that the court was now at the serious stage of making a decision. With this new change of legislation we can see that the Family Court judges will have a lot of opportunity to engage with parties in judge-led mediation. So a judge may undertake the role of a mediator, then, sometime later, because the parties cannot come to agreement by themselves, he or she may want to be able to signal clearly to the parties—and we should give the judges the opportunity to do so—that there is a change of circumstances, they are now at the serious end, and the judge is about to make a decision and adjudicate. One of the symbols judges can use if they wish to—it is not compulsory or mandatory—is to wear the gown to indicate they are about to make a decision and that this is crunch time. I felt there was no harm in this if it is what the bench wants. I think this is entirely appropriate. That is the simple point of it. Mr Fairbrother has made a very good presentation on the history of the issue and I welcome that. I feel really refreshed.

I would just like to make the point that in fact the Minister in the chair, Rick Barker, is going slightly down memory lane. When I was a clerk in the Magistrate’s Court in Auckland—my first-ever job—we were very proud of the Department of Justice and the standard of the Civil Service that was available to New Zealand through the Department of Justice. In fact, the Department of Justice used to be considered as second only to the Ministry of Foreign Affairs for the quality of its staff and the service it gave to the community. If we can move back to a justice department where long-serving members are rewarded and appreciated, I for one would be greatly pleased to see that happen, because one of the problems of our court system today is that one can go into a court and find that people do not know what they are doing, because they have been there barely 5 minutes and they have no history to rely on.

The second point I make is to support Judge Boshier. It is not just a question of wearing a gown. Judge Boshier has also introduced a system whereby instead of sitting down all the time in what is called an informal manner, but which sometimes can become too relaxed a manner, counsel often—and I think more often than not—stand now in a Family Court. I can see Judge Boshier’s point entirely. I was in the Family Court towards the end of last year. Regrettably, the Family Court must have the highest level of perjury in New Zealand. We want to try to bring some sense to the people who appear as parties in the Family Court and to make them realise that what they are saying is actually serious. If the suggestions made by Judge Boshier go some way towards drawing to the attention of litigants that they must not in their various domestic violence, custody, and day-to-day cases just slander each other wildly with no basis of fact, and that the Family Court is a serious place to be, then Judge Boshier will have performed a great service for the country.

I move, That the question be now put.

Mr Chair.

I raise a point of order, Mr Chairperson. Mr Fairbrother has had four calls. Is that not the maximum at this stage?

The CHAIRPERSON (Hon Clem Simich): That is right.

Mr Chair.

The CHAIRPERSON (Hon Clem Simich): No, no. You may seek leave, if you wish, to have another call.

All right. I seek leave to have another call.

The CHAIRPERSON (Hon Clem Simich): Leave has been sought for that course to be followed. Is there any objection? There seems to be objection.

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 201 in the name of the Hon Rick Barker to Part 6 be agreed to.

Amendments agreed to.

Part 6 as amended agreed to.

Progress reported.

Report adopted.

The House adjourned at 9.56 p.m.