Family Court Proceedings Reform Bill

Before the lunch break I mentioned that New Zealand First had wished to support this bill, and I gave some reasons why. I said that, fundamentally, we were not against the principle of family dispute resolution, but I also said that there would be a number of conditions, and I listed what they were. In the end, despite a very large number of amendments having been made to the bill as introduced, New Zealand First’s reservations and concerns have not been met, and so New Zealand First will now vote against the bill.

The bill targets the use of professionals, especially lawyers for the parties and lawyers appointed to represent children. Under clause 5 legal aid will be available only to a limited degree prior to, but not during, any mandated dispute resolution process, and, secondly, if a dispute goes before a judge. New Zealand First does not agree to penny-pinching of this kind, which results in a lack of adequate legal representation and severely reduced legal aid entitlements.

As a fundamental principle of justice, parties with a reasonable need—not regulations—should decide whether they need a lawyer. Family dispute resolution would be free for those under the income threshold for civil legal aid, estimated at about 60 percent of participants. So most parties are already legally aided, out of necessity. But the availability of legal aid should not be the basis upon which parties decide whether they should have a lawyer or not for these family dispute matters.

Although family dispute resolution is likely to be less expensive than hiring a lawyer and proceeding to a defended hearing in court, these requirements are so tough that many people—many of the 40 percent not entitled to legal aid—will simply not get a lawyer when they really need one. There is also the very real problem of power imbalances being created as a result. These reductions in legal representation and legal aid are the main reasons for New Zealand First opposing the bill. These reductions are likely to be a false economy anyway, because costs in other areas are likely to increase, and several submitters described why this is likely.

Fundamentally, if the quality of the process is compromised, the resolution of disputes may be illusory, resulting in another dispute later. Another reason for opposition is that the bill prohibits the court from appointing a lawyer to represent the child, unless it is “necessary”. Clause 5 of the bill as introduced would allow a lawyer to act for a party in a proceeding if the application was made without notice, if it relates to international child abduction, if the party is the Crown, if a judge has directed the case proceed to a defended hearing, or if the lawyer is lawyer for the child who is party to the proceedings.

The concern, though, is that lawyers would no longer be involved in all of the cases where they are needed. The problem is that the bill requires the court to have concerns for the safety or well-being of the child, and to consider that an appointment is necessary. It should be the other way around. The court should appoint a lawyer for the child unless it finds that it is unnecessary. That is what it is in the current law, and that really is the way it should stay.

The official advice is that parents are expected to represent the best interests of the child in the process, but parents in too many cases are not really able to objectively look after their children’s interests as one would hope. In these cases a lawyer for the child is needed, and the test of necessity is too tough. Children cannot always rely on their parents, especially in the stressful atmosphere of a relationship breakdown. The interests of children must be paramount, which is the foundation of the Care of Children Act 2004.

This bill fails children with its restriction of independent representation for them. New Zealand First also believes that the full Government funding of counselling services should be reinstated. The bill would repeal existing provisions for Family Court counselling under the Family Proceedings Act and the Care of Children Act, except for up to 3 hours of counselling, and it would replace them with a new scheme. The provision for only 3 hours’ counselling is not adequate. Not all families will break up if they get adequate counselling before the other process is used. In the past most matters were resolved by counselling, and it should be reinstated. The court will be able to appoint a lawyer to assist the court in appropriate cases under this bill, but the parties would have to pay for this—probably a one-third apportionment. That is also wrong and is opposed.

Another issue of concern to me, not addressed by the bill, is the lack of enforceability of agreements in the family dispute resolution process. These agreements lack the status of a court order. They are likely to be recorded and may be signed, but they depend on the commitment of the parties to carry them out. The risk, of course, is that they will simply be ignored.

Although the bill started out with good intentions and although New Zealand First is not opposed to family dispute resolution in principle, the overwhelming thrust of the bill is clearly just to save money, and the effectiveness of our Family Court system will be compromised. The bill fails to ensure the availability of adequate publicly funded counselling when it is needed most. It fails to ensure that parties will have legal representation at all stages when they need it. For those reasons, New Zealand First is obliged to vote against the bill.

It is my pleasure to take a call on the Family Court Proceedings Reform Bill this afternoon. The best outcome for all families who are going through tough times, conflict, and separation is to find their own solutions, define their own resolutions, to make them sustainable and enduring for their own families. We know that roughly 90 percent of New Zealanders manage to do that. Their families find their own resolutions and sustainable outcomes. About 10 percent of New Zealanders, roughly, have to use the Family Court system.

For those 10 percent who use it—because they cannot find their own resolutions, they need a bit of help—this is where the Government can come in and support these people. What the family dispute resolution does is give them another way to find that resolution. We are doing that by allowing them to stay out of the court system for as long as possible, to give them access to parenting courses, to allow them to have somebody work with them to see whether they can find some resolution and to resolve some of their conflict and then, if they need to, to go into the court system and use that court system. Of course, there will always be a safety net for those who are vulnerable or at risk to be able to go straight into that court system and use it, but this is to assist those people who do not need it straight away.

We had about 64,000 people in the 2011-12 year who were applicants to the Family Court, and we know that 40 percent of those applications were made under the Care of Children Act. So about 26,000 applications that went through the Family Court system involved children. We are here today to debate this bill about giving a solution to keep people—families who are in conflict—out of the court system. From all the submissions that we heard, one thing that we did hear from those parents who came in to talk to us about their experience was that it is time-consuming—it takes a long time to get through it—and it is very expensive to get through the system. And, actually, they kept on going back and back and back into the court system. It was not good for the children, it was not good for their relationships, and, actually, in many instances, the outcomes were not sustainable. This bill is to offer an alternative to that—to offer an alternative.

Some of the main issues raised through the submission process were the ability to access legal aid; access to lawyers for the child; allowing a screening process for fast tracking those who are vulnerable; the ability to refer parents back to family dispute resolution from the court system, so if you have gone through family dispute resolution and you get to the court system, the courts can send you back again for more parenting courses or can send you back again to resolution; allowing relationship counselling to be part of the tools for the family dispute resolution; the importance of parenting courses—we heard that over and over again through our submitters, how important those parenting courses were—and understanding what the needs of the children are when you are going through. It is not necessarily about the needs of the parents but about the needs of the children, and about putting them first when they are making those decisions. The lawyers’ involvement in the family dispute resolution system was what we heard of a lot, but then 46 percent of the submitters were lawyers, so that was most probably reflective of that. And also we heard of the skills needed in the family dispute resolution system. Who do you need in that process? Do you need an arbitrator? Do you need a dispute resolution person? Every family may be slightly different, with slightly different needs. We listened to all these concerns, and we addressed them before the bill came back into the House.

I think this is a good new system in place to allow families to stay out of the court system for as long as possible. I look forward to the debate in the future. Thank you.

The Labour Party will be strenuously opposing this bill, the Family Court Proceedings Reform Bill, which, far from achieving the objectives set out in the bill, does exactly the contrary. It is damaging to equity, it is damaging to the interests of children, it is damaging to the ability of parents who have separated to reconcile their differences and to find a way through, and it has nothing to do with improving the quality of the Family Court process in this country. It is inherently dishonest in what it says it sets out to do, when it is absolutely clear and set out in black and white in the regulatory impact statement that this bill is all about cutting costs.

In her comments, the Minister of Justice said that this was the biggest change that has ever been made to the Family Court system since 1981. You know, the experts who appeared before the Justice and Electoral Committee did not deny that comment, but they added this—and this comes from five people, four of whom have 30 years’ experience and professional expertise in the Family Court. They said this about the bill: “If this Bill proceeds as drafted, the very fabric of the New Zealand family justice system will be destroyed.”

💬 Hon Bill English: Rubbish.

Continuing the quote: “The Bill is based on flawed policy development without a statistical or research base justifying such fundamental and radical changes.”

A member of the Government side said just then that that was rubbish. These people—these five practitioners—were not simply the most experienced and expert barristers before the court and psychological experts; they were so well regarded for their expertise that the then Minister Simon Power appointed them to the experts reference group. The National Party says that it is rubbish, but this so-called rubbish is actually the advice of very experienced, very professional people appointed by Simon Power to advise him on the bill. And they say that this bill is a disaster.

You know, when I picked up this bill, I thought that this might be a piece of legislation that I could support. I looked at its objective, which was “to ensure a modern, accessible family justice system that is responsive to children and vulnerable people, and is efficient and effective.” What do I find when I read the submissions and I read the detail of this bill? That that is a truly Orwellian quote, because the bill does exactly—exactly—the opposite of what it purports to do.

I want to actually again take some of the evidence that was received by the Justice and Electoral Committee and refer it to the House. You know, Judith Collins said that this bill would make it easier to understand and navigate the court system. Her namesake Garry Collin, Chair of the Law Society family law section, says that this change will actually “create a more complex system than we currently have … The new system is a complex maze of procedures with different entry points, criteria and exemptions.” He says that this will cost more rather than save money. And when he says that it will cost more, he is talking not only about the financial cost but also about the basic costs to the most vulnerable people in this system, who will lose their right to legal representation and will lose the ability to go to the dispute on an even footing with the opposing party, who may be well funded, who may be educated, and who may be articulate.

What we find is that the lawyers who have watched the way this system has evolved over decades say that this will be damaging to the interests of the child. For heaven’s sake, the bill reduces the funding available for counsel for the child. So the child may be in a situation where nobody is representing his or her interests, and the funding will be taken away from a person who has the professional expertise and the knowledge to actually ensure that the interests of the child are well looked after.

The other thing that worries me most about this bill is when I read from that submission, it says this about the bill: it is not based on empirical evidence. This is the biggest change in the Family Court’s history, and it is not based on any empirical evidence. It says that, in fact, it is contrary to extensive existing evidence of best outcomes for families and children. Not only is it not based, nor does it even pretend to be based, on factual evidence, but it runs contrary to the wide body of research that has been done on family law and what would be good for the interests of families and children.

The submission says the bill will create a two-tiered family justice system: “The more vulnerable members of society will have limited access to services to assist them in the resolution of family disputes. For those who do have access to the services, the services will be of lesser quality.” It goes on to say: “It is entirely foreseeable that inequalities arising from gender, socio-economic status, and ethnicity will become entrenched, resulting in increased costs to the health, education, child protection, and criminal justice budgets.”

That evidence from people who ought to know, from people who were appointed to advise the Minister of Justice, shows that this bill is a disaster. But for any doubting members on the National benches, all of whom have their heads down at the moment, what that expert evidence showed was actually what was put into the regulatory impact statement by the Government’s own advisers. As well as saying that this is driven by the overall fiscal situation and the need to lower the costs of the current justice system—they were honest. At least the officials were honest about it; not so the Government members who have spoken on it. They also said that the bill was based on “limited” research, which is exactly the point that the submitters to the Justice and Electoral Committee were making in their evidence. The regulatory impact statement said that “There is insufficient historical fiscal and statistical data …”. It said: “There was insufficient time for piloting proposed processes or for undertaking … ([a look] at court documents) to obtain further data ...”.

All of the evidence on this bill points to the fact that it will be an absolute disaster. It is about cost cutting. It is not about equity, it is not about fairness, and it is not about getting a good outcome from the bill. It is about saving the Government money. The Government’s own advisers and the experts warn the Government that it will not save it money; it will cost it more money and, worse still, it will cost those families and, particularly, the vulnerable children of those families unnecessary misery, because the situation will not be resolved as quickly or as fairly as it could be.

It was not time that prevented the Government from going back to its expert advisory group. First of all, the Government claimed that the bill was consistent with the expert advisory group. The group, in an outraged statement, said: “That is simply not true. It couldn’t be more inconsistent—on four key points of what the Government is doing.” It was not time that stopped the Government from going back to its expert advisory group. It was the knowledge that this bill is dishonest, it is fraudulent, it will not do what it claims it is setting out to do, it is not even motivated by what it sets out to do, and it will be a disaster for the New Zealand courts system.

The Minister says that it will save money. I want to remind the Minister of the change that was introduced by, I think, the Minister for Courts for processing Family Court cases in Auckland. What did the Principal Family Court Judge say about that botch-up? He said that urgent custody cases involving domestic violence, previously dealt with in 14 days, were now taking 2 months. Was it saving money? No, it was costing a million dollars more. The Government has made one disaster in the Family Court system, it is compounding it with another disaster, and it is not even honest enough in this House to admit that it is doing it for purely fiscal reasons and that this bill will be a disaster in terms of the principles of justice.

Tēnā koe, Mr Speaker. Kia ora tātou katoa ki te Whare Pāremata o Aotearoa. I would like to take a brief call on the Family Court Proceedings Reform Bill, in part because I was not actually sworn in at the point of the introduction of this bill or, indeed, the proceedings of the Justice and Electoral Committee. But I have read very carefully the deliberations of the committee, the bill itself, and some of the reports that fed into it. It is obvious to me that this is a positive measure. It is reforming the Family Court in a way that will solve some of the concerns that were raised in the report by the Ministry of Justice in April 2011.

Those concerns included that the Family Court is an adversarial environment that places additional stress on already strained relationships. It has been a negative environment for children, and is not sufficiently focused on their needs. It is also not focused enough on the needs of the most serious cases—that is, ones that involve abuse or violence, which is a point I will come to later. It spends far too much time on personal disputes and private matters, rather than resolving those serious issues and the legal issues. It is too complex and slow in resolving disputes. I think these are issues with the system as it currently stands that do need to be addressed and resolved, and I think the provisions of this bill do a very good job of resolving those issues.

I mentioned the issue of domestic violence. We have heard from other speakers on the Government side that this bill does a lot in terms of improving the environment of the Family Court for children and the people who are going through it, but also in terms of improving the process and the efficiency of the court. There are three specific measures in this bill that respond to domestic violence in a way that, I think, is appropriate and positive. Firstly, this bill is expanding the definition of psychological abuse in the Domestic Violence Act 1995 to include financial and economic abuse. Secondly, it is increasing the maximum sentence for breaching a protection order from 2 years to 3 years. Thirdly, it provides for greater flexibility in the development and delivery of mandatory non-violence programmes. Given that domestic violence is very much a bane of this country and something that we are working very hard to combat, I think these are positive measures, and, when taken with the other provisions of the bill, I think this is both timely and appropriate legislation. I have no hesitation in commending this bill to the House.

I am happy to take a brief call on the Family Court Proceedings Reform Bill. I just want to state at the beginning that I guess any member of Parliament who meets regularly with people in their constituency office will deal with issues that are very sensitive and very difficult all of the time, and some of the most difficult ones that we deal with are where there has been a relationship breakup. Regularly, I get people coming into the office to talk through difficulties they have with the child support system, for example. That seems to take up an awful lot of time, and I acknowledge that relationship breakups can be incredibly difficult for all involved. So the changes that are being debated today around the Family Court Proceedings Reform Bill are actually incredibly important for us to get right, because when relationships break up, people need to have an adequate level of support. That is just an absolute bottom line. They have got to have an adequate level of support. We also have to recognise that in relationship breakups there can be all sorts of external factors that create a huge power imbalance in the relationship, which can be very difficult to work through.

I am not as familiar with this legislation as the members of the Justice and Electoral Committee are, but, having listened to the debate, there are certainly some aspects of this legislation that concern me greatly. For example, if we take the removal of lawyers from large chunks of the process, on one level I might look at that and say that that is actually probably quite a good thing, because if there is a family dispute, maybe it is better that it is not a legal proceeding but that, in fact, we get people together—we get them to sit down and talk things out—and maybe getting lawyers involved makes things more difficult. But, actually, a lot of the evidence suggests that by having a good process around things and ensuring that all of the parties to that process are well supported with good, rational, sensible advice, removed from the emotions of the situation, we get a better outcome.

In something like the Family Court, where the interests of children are involved, it is really, really important that everybody involved is adequately supported so that we can get the best possible outcome. This is not something where we should make decisions based on saving a bit of money, because, in fact, if we get these things wrong, it is costly in fiscal terms for the country but it is hugely costly in a whole lot of other ways for those who are involved in that process. So for the children and for the parents who are going through or have been through a separation and are dealing with disputes, it is important that the process is right and that they get the support they need.

I am really concerned about some of the reforms—for example, limiting the access to court-funded counselling at the time of separation. Actually, this is a time when we want to make sure that parents have all of the support they could possibly need in order to deal with the issues that are before them. The bill is limiting the role of lawyers in the processes of the court and is therefore limiting access to legal aid. What we have to recognise again when a separation occurs or when a relationship breaks up is that there are going to be huge economic disparities in the way things happen. So limiting parents’ access to legal aid can be very difficult for some of them.

The establishment of a new process called family dispute resolution will cost around $900 just to get into it in the first place. That is a big barrier for some people, and I think we have got to really consider the cost that we are going to be imposing—that this Parliament will be imposing if this bill passes—on people who are at a very, very vulnerable stage. I do not think that that is a time when we should be imposing costs on them and making things more difficult for people who are going through this process. We should actually be doing all we can to support people who are having relationship and family issues, so that they can resolve those satisfactorily and so that people can reach the best possible outcome, particularly, as I said, where children are involved.

I am very, very concerned about limiting the role of counsel for the child by raising the threshold for the appointment by the court. Children are the people who need to be the most supported in this process, and removing from children any level of support in Family Court proceedings cannot be good for those children. They should have as much support as we can possibly provide them with.

I was not a member of the select committee and I was not part of the debate in the earlier parts of these proceedings, so I look at it from a much higher level, perhaps, than those who were engaged in the detail. I simply ask the House this question: will this bill leave children, particularly, and also those experiencing family difficulties better off, or is it about saving money? My analysis of reading what I have seen so far is that it is about saving money, and that is the wrong motivation for these sorts of changes.

I would like to begin by acknowledging and referring to the petition that has formed part of the report back from the Justice and Electoral Committee, the petition of Christopher Perry and 4,470 other ordinary New Zealanders who have signed their name to a petition that sought to have this House not impose certain reforms on the New Zealand Family Court. I think it is significant. It is a representation of considerable public disquiet and concern about the direction that this bill, the Family Court Proceedings Reform Bill, is taking. I do not think there is particular concern about the fact of a reform or a review of the practice of the Family Court, but about the way in which it has been carried out, particularly the cost-saving focus and the fact that it will disadvantage many, many people, that it will reduce access to the court for many people, and that it will give worse outcomes for some of our most vulnerable citizens, not least of all our children.

The petitioners sought to get four key things. They sought to protect the right to a lawyer for parties in the court, and we have lost that, frankly. We have qualified access to lawyers now, and that is very unfortunate for all sorts of reasons, not only because the right to legal representation is a constitutional underpinning, if you like—it is absolutely essential to our judicial process, and in this instance it has now been compromised—but also the fact that even to the extent that perhaps we might seek to take some cost out of the court, having self-litigants in the court will slow the process down. They will impose costs on the courts. There will be significant cost, both personal and financial, when people try to represent themselves in the court, which they will typically do quite badly.

The petitioners sought protection for lawyer for child. They wanted to see no barriers to the appointment of lawyer for child. Again, we have a qualified situation here, where a judge may appoint lawyer for child, but it will not be as automatic or as spontaneous as it has been up to now. The children in this, of course, are the innocent parties, invariably. They are not the ones who are having disputes or relationship failures, but, unfortunately, their interests will not be as well served as they might otherwise be.

The petitioners sought the protection of legal aid in the Family Court and, of course, that has been reduced. Of course, later this afternoon we will also be debating the latest onslaught against the provision of adequate legal aid to people who might need it in order to be fairly represented in the courts.

The fourth and final thing these petitioners required was to have no fee, no financial barrier to people entering the dispute resolution process. Unfortunately, that barrier does still exist, to the tune of about $1,000 or so, which is a significant barrier to many people, and, of course, that is only the beginning of the cost.

I think it is unfortunate that there seems to be a key presumption from some of the Government spokespeople, or in speeches we have heard from Government members on this bill, that the intention of the bill is to ensure that people sort out their own problems without recourse to the courts. But that is nonsensical in a sense because, as one of the earlier Government speakers made the point, something like 90 percent of relationship breakups, marriage failures, or whatever it is are resolved without recourse to the courts, albeit on occasion through using the counselling service, which is extremely good value for money and an inexpensive way to assist couples to deal with their issues. But the notion that we are dealing with hordes of people who could otherwise deal with their own problems outside of the legal process simply is not borne out by the numbers: 85 to 90 percent of couples do resolve their own issues without coming to the court. It is not a matter of overuse of the court; in fact, it is underused, if anything.

By definition, the court sees only the hard cases, the difficult cases. The idea of requiring couples to go straight to dispute resolution, rather than going into the court process, overlooks the fact that there are a whole host of issues of circumstances that may make that inappropriate, and some of those circumstances could be family violence, hidden family violence, which means that a person who has been subjected to some form of physical or psychological abuse could be required to sit in a room and engage in a dispute resolution process, and that is simply unacceptable. On paper it might look nice and clear-cut; in practice, it will not work. Neither will this bill, and we will continue to oppose it.

I am pleased to take the final call in the second reading of the Family Court Proceedings Reform Bill. I think there would be one aspect that we agree on in this House, and that is that courts are no place for children. If you think about the reform that this bill is undertaking, it is really looking at the needs of children first, and making sure that the environment and the reform that we are putting in place really provides a structure that is going to be the most useful for them, that provides the most safe environment, and that provides a lasting resolution. That is why the emphasis is not on what the last speaker, David Clendon, was implying but on using the family disputes resolution process more so that you can get really lasting outcomes.

As a constituent MP, I think some of the most difficult cases that I have had before me have dealt with families who have parenting issues, income support issues, and separation issues with their children, and it is very clear to see that it is actually the children who come off the worst in these environments. I am a firm believer that the more we can keep them away from the court process and put other processes in place that assist resolution not just for a month or 3 months but for the lifetime of that child, the better. That is why this is quite a different process when we are talking about courts and when we are talking about resolution, because children have very different needs from those that can be met by some of the other court processes that we have in place. Yes, we have had some significant cost implications in terms of the use of the Family Court, but the driver of this, really, is looking more at how we can have lasting solutions for those who are most vulnerable. And in this case I am particularly interested in the children who are in those families that have had separation and breakup issues, so that we are able to have a solution that works for them long term.

I disagree with some of the other speakers. This reform is clearly aimed at those who need court assistance—absolutely. But it is not making that the most desirable option. It is trying to look at making sure that those who need legal representation and legal aid absolutely will get them, but not making them the most desirable channel for people to go through in terms of resolving these issues. The Government recognises that the Family Court provides only one component that is important in terms of people sorting out their issues and problems. And for the long-term benefit, people should be encouraged, and other mechanisms provided for them, so that they can seek that assistance and get long-term resolution, which is, of course, going to be in the much better interests of the children involved. Thank you.

The question was put that the amendments recommended by the Justice and Electoral Committee by majority be agreed to.