Family Courts Matters Bill

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

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

But I emphasise that Judge Boshier, in his submission to this committee, stressed just how important it was to have those expert qualified counsellors, psychologists, and mediators, and how important it was to ensure the professional integrity of those people in the running of the court—much more particularly to the end result of the sort of anguish we see when a small proportion of cases comes to court. As I noted before, the delicate balance between the openness of the court and the restrictions that can apply, was very carefully and poignantly expressed by the English Law Commission: “What is more serious is that the parties, and more especially, their innocent children whose identity is frequently revealed as a result of the details which can be published, suffer the disturbing experience of having the most intimate details of the family life exposed. While it may be said that the parties have only themselves to blame, no such argument can apply to their children whose privacy the law takes pain to protect in other cases.” I understand that in Australia, where there is openness, this indeed can have quite severe negative repercussions.

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

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

💬 Hon Darren Hughes: Name-dropper!

Well, I align myself to as many famous people as I can. But I need to draw attention to those metropolitan members, because they may not know that in the provinces, some of these multiparty accords are actually celebrated. If any members have the privilege, as I will have tomorrow, to visit any of the bowling clubs, they will find that on the boards around the clubrooms they will see that the clubs list the status of various people. They have triples boards, and championships in the triples, and all the names are listed. But they also have fours. Then the doubles are listed—well, you know, there are always quite a few in the doubles—and the poor people who are just in the singles. They are all on their own, but there are heaps of them, as well. So this is not something new that the honourable Minister’s speech-writer has come up with; this is something that apparently has lain latently within the provinces for a long time.

However, let me get back to Part 1 of the Family Courts Matters Bill. [Interruption] I said “lain”, not “laid”. Anyway, the National Party is pleased to be able to support it, in a major way, because it does not refer to triples, doubles, singles, or fours. The Family Court system must be a system that is open and fair, and this bill increases the openness and the transparency of Family Court proceedings. We believe that that is a good thing. Those who have to go through the court process frequently feel bruised and broken by it, more so, probably, than in other court systems. It is, and has been, shrouded in secrecy for a long time, and we can understand the reasons for that, especially at the time that secrecy was introduced. Really, whose business is it, other than those intimately involved with the break-up of a marriage-type relationship? Parts of the proceedings are not things that should necessarily be open to the public to scrutinise and comment on.

However, those who are at the core of matters proceeding before the Family Court, and especially those who feel they have not had openness and due process shown to them, are those who most want to have the dealings of this particular court open to some public scrutiny. We believe that that is a fair thing to happen. We mentioned in earlier speeches the incongruity of there not being a provision within this bill—and it would have been most suitable to have had one there—for DNA tests to be compulsory where, for instance, a parent, particularly a father, is accused of being the father. A father can deny that, but has no means of being able to require a DNA sample to be taken so that paternity can be proven. Yet the Family Court, as the law stands at the moment—and will continue to stand, even after the passage of this bill—has the ability to require paternity payments, child support payments, from the accused father, whether or not it is proven he is the father, and he has no ability to prove he is not. That is a real anomaly within our system. Right across society there is a lot more openness and transparency put on a number of what have previously been private areas, yet we have the ability to hold people to account, merely on an accusation without any proof. I think that that is a bad thing.

Another point I make is that we frequently hear, in any discussions around the court system, that the only people making any money out of this are lawyers: “It is a real heyday for lawyers—rah, rah, rah!”. You know, I speak as a lawyer with a “long” history of practising in the courts for 2½ years, and never appearing before the Family Court. But I would like to point out that that really means we have an adversarial—

💬 Hon Member: Did you win any cases?

I have never won a case in the Family Court—

💬 Hon Member: Have you lost any?

—and I can say that I have never lost one either. So there you go.

💬 Hon Member: Did you meet Denny Crane?

I sit on the fence—I should be in one of the minority parties, and I have never met Denny Crane. But having said that, the fact is that it is our adversarial system that forces lawyers to act in the best interests of their clients. It is the system that forces one side against another, and it is frequently in an atmosphere of hostility and animosity that actually means that the lawyer has to thump the other side as hard as he or she can. That is the nature of the system. The fact that going to those depths costs frequently a significant amount of money, is the nature of the work. If we are looking for something that is open and something that will be fair, then maybe in time this country will have to look at the way it does the Family Court system.

Finally, I would like to make the point that we must never forget that the most critical people at the centre of all these issues that appear before the Family Court are frequently children. An acrimonious series of court hearings with children at the heart of it, and scraps over custody and access, can only leave them—the most vulnerable people within the system, and those most at risk, although counsel for the child are appointed—having long-term harm, not of their own choosing. It is those people who will need to be most protected by the way this bill is implemented, and by the way the Family Courts carry out their business in the future. Thank you.

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

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

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

Clause 1 agreed to.

Clause 2 agreed to.