Family Courts Matters Bill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The CHAIRPERSON (Hon Marian Hobbs): I am sorry; the expressions on my face have nothing to do with the member’s speech. I have cramp—it is nothing to do with the member’s speech.

I must say that you were throwing me a little, Madam Chairperson. I thought I was on the wrong part; it can happen like that.

Anyway, it is great that we are debating this bill. I think there is a lot more debate left on the matter, and it is a bit of a shame that we are dealing with it under urgency and at the end of a parliamentary term. Thank you.

The CHAIRPERSON (Hon Marian Hobbs): Thank you. I offer my abject apologies. We in this Chamber are human beings.

The question was put that the amendment set out on Supplementary Order Paper 200 in the name of the Hon Rick Barker to Part 7 be agreed to.

Amendment agreed to.

Part 7 as amended agreed to.

Part 8 agreed to.

Part 9 agreed to.

Part 10 Mental Health (Compulsory Assessment and Treatment) Act 1992