Family Court Proceedings Reform Bill

It is a pleasure to take a call on this very important piece of legislation, the Family Court Proceedings Reform Bill, which has its origins in the longstanding concerns over the operation of the Family Court and the Family Court jurisdiction.

I think it is timely to point out that this bill had its genesis in, I think, a very well-intentioned and a very noble action on the part of the Government. It started off with the Government hearing the concern about the need for the Family Court to modernise and, especially, to reduce delay and anxiety about the way it was resolving or dealing with some family disputes. That was in an environment that was changing too, for families, where the demand—particularly from men—to play a greater role in their children’s lives after separation was putting more pressure on the court in terms of time and claims for legal aid.

The previous Minister of Justice did the sensible thing of calling together all parties who had a stake in this matter for a consultation session here at Parliament, as it turned out, and took time to hear people, hear what the concerns were, and hear about suggestions for reform. Following that, that Minister then set up a couple of processes. They got around the legal profession but also set up an external working group to assist that Minister to come up with some solutions. There was a process of putting together a paper. That then drew on public submissions. And all of that was then meant to lead to a set of reforms that reflected the actual concerns that people felt.

Sadly, by that time, a different Minister—in fact, it turns out that it was the Minister who is now in the chair, the Hon Judith Collins—took over the management of the procedure, of the reform process. What emerged—and I really now take my lead at this point from the external reference group itself—was a bill that bore little relation to what came out of the consultation that had led up to that very point. What we ended up with is a bill that is much less about the effective and efficacious disposal of family disputes and more about saving money by reducing legal aid and reducing court time.

I think it is timely, as we think about these changes, to just reflect back. There is an article in the New Zealand Lawyer online on 20 May 2011 that was a retrospective about the Family Court. It is interesting. It gave an account of the original intentions and origins of the Family Court. The royal commission had been set up to deal with and to look at the court system and, in particular, to make recommendations about the Family Court. What the author of that 2011 article said was this: “The Royal Commission noted … that the ‘aim of the Court’ ”—that is to say, the Family Court—“ ‘should be to help resolve problems with the co-operation of the parties, wherever that is possible, with the minimum of disruption in all cases’.” The author goes on to say: “This focus on conciliation put the spotlight on providing services which assisted families to cooperatively resolve disputes. The Royal Commission recognised that self-determination, rather than judicial determination, often required expert assistance. That expertise was counselling and mediation.”

You could take those words, which were a summary of the royal commission’s report 33 years ago, and they resonate very closely with the very words that sit behind, or at least are provided in, the summary of this bill. It is all about an emphasis on resolving disputes between the parties. The difference is that 33 years ago they recognised that, actually, couples who separate sometimes need professional assistance to arrive at that point. They need assistance to understand their legal rights, and they need assistance to get through the emotional and difficult time that it is for the couple and any children who might be involved as well.

The Royal Commission on the Courts described the Family Court as having a twofold function, judicial and therapeutic, and it described the court’s therapeutic jurisdiction as being defined by the fact that there were clinical services that were required—social workers, psychologists, and psychiatrists. And so it is against that background that we consider this bill on this occasion.

Just going through some of the relevant parts of Part 1, which deals with the amendments to the Care of Children Act, it is a very crucial part of much of the work of the Family Court. In fact, 40 percent of the applications that go to the Family Court deal with care of children matters, so it is a very significant part of the Family Court business. Clause 4 of the bill replaces sections 4 and 5 of the Care of Children Act, and the question that arises is really how meaningful, in the light of the later provisions of the Act—the family dispute resolution provisions, which we will come to in Part 3—those particular changes are, because those changes talk about appointing the lawyer to represent children. The proposed new section 4 talks about promoting the paramount welfare and best interests of the child in the proceedings, and all the way through the new proposed section 4 in clause 4 is the constant reference to the welfare and best interests of the child in any proceedings before the court.

But, of course, the reality is that going through the family dispute resolution process, unless it is accompanied by an application that alleges violence in the relationship, is not a proceeding for the purposes of the bill. So there is a real question about just exactly who will be promoting the welfare and best interests of the child, because it is not going to be any officer of the court and it is not going to be lawyers and counsel. The reference particularly in subsection (2) of the proposed new section 4 says that “Any person considering the welfare and best interests of a child” has to take a number of steps. Well, that has got to be the parents who are separating, who are bound up in the emotional turmoil, and any facilitator involved. I just think that there is now an air of unreality that that part of the bill will begin to represent.

The proposed new section 5 in clause 4 of the bill sets out a series of principles relating to the child’s welfare and best interests, but it is really problematic to know exactly who is going to be taking responsibility for that.

There is a new section 7 of the Act under clause 5, relating to a lawyer for the child, and that is a very significant change because it goes from the present wording, which says that unless the court is satisfied that the appointment would serve no useful purpose the court must make an appointment or a direction under the previous subsection to appoint a lawyer for the child, particularly where there is an issue about the day-to-day care of the child. That wording, which heavily emphasises presumption in favour of appointing a lawyer for the child, now becomes that the judge must be satisfied that appointing a lawyer is going to be worthwhile, or relates to any concerns for the safety or well-being of the child or as the judge otherwise considers necessary, with no guidance as to how that discretion might otherwise be exercised.

This is a significant change, and this goes back to the point that has been made previously in debates in this House on this bill, and that is that this very much raises the issue of whether this bill will allow New Zealand to comply with its obligations under the United Nations Convention on the Rights of the Child, where children, under that convention, are guaranteed the right to be heard in matters that affect them, and where they are of sufficient age to instruct counsel to ensure that their views and their voice can be heard.

That remains a very serious issue, and the Minister in the chair might simply want to answer the question of how the Government expects to meet its obligations under that convention, given the provisions of this bill that will change the presumption in favour of the appointment of a lawyer for the child to a presumption against that, leaving the parents, in their very emotional state, to be the ones who, together somehow—notwithstanding their differences—are meant to be determining the best interests of the child. That is an impossibility. That is simply just not a realistic prospect, so we have very real concerns about the extent to which there will be compliance with those convention requirements.

Then there is the issue about lawyers for parties under the new section 7A in clause 5. That fundamentally changes the role of lawyers. There is no question—and I think the Minister has basically admitted that she wants to see a much lesser—

I would like, first off, to acknowledge the work of the Justice and Electoral Committee on this matter. It has been a very good select committee, and it worked very hard on this Family Court Proceedings Reform Bill. We have had tremendous work, as well, from the Ministry of Justice. It has worked right across all the stakeholders in this area.

I make no apologies for believing that it is time to reform the Family Court. I speak as somebody with experience—around 22 years’ experience as a practising lawyer, and quite a lot of it in the Family Court area and the family law area. What I know is that couples break up all the time. They split up all the time, and they make sensible arrangements for their children all the time, except if they get into a situation where they are encouraged to not make sensible arrangements or where they are encouraged to take legal action. In court we are talking about what happens to a child from day to day, where they go for Christmas, where they go to school. In fact, it is quite normal, it is quite average, it is quite usual for couples to split up, even when they have children.

What is not normal or usual is for a child to be asked to have a lawyer to be able to say what they want. Most children can speak to their parents. Most parents can speak to their children. This is not to say that a lawyer is not someone who should be available when needed, but the fact is that over the last few years what used to be an unusual occurrence—a lawyer being appointed for a child—has become the norm. That is not usual, and it should not be.

The member who has just resumed his seat, Andrew Little, has talked about the UN. Well, actually, I am really quite a fan of the UN, but I would also say this: it does not bring up children. Those of us who do bring up children know that a parent’s first responsibility is to their child. It is absolutely the No. 1 responsibility before anything else. A lot of parents I have seen—

💬 Sue Moroney: The ones that go wrong so often. Why does it go wrong so often?

That member may want to take a call herself. I can certainly say from experience that I have seen plenty of people who have gone through the Family Court system come out the end of it and say: “Well, we were told we had to go through this, otherwise we wouldn’t be able to get what we needed.” Actually, if only they had sat down and had a chat, they would have sorted it out.

I make no apology to this Committee or to anybody else for supporting a family dispute resolution service to try to keep families out of court and to keep mums and dads away from court unless they simply cannot reach an agreement, in which case the court should be involved. But let us give people as many opportunities as we can to resolve their differences around their children, because ultimately they are their children, and they have a responsibility to them.

Part 1 deals with amendments to the Care of Children Act 2004. Yes, people may be personally upset that their partner has decided to leave them or to go with someone else, but there is no need to use their children to get back at each other. Many of us who have any experience in the legal profession know that time and time again we come across people whose entire lives have been destroyed by being pulled through the Family Court year after year after year. There are matters that have come to my attention as Minister of Justice where people spent hundreds of thousands of dollars around access to their own children. These are not people who are paedophiles. These are not people who abuse their children. These are people who simply wanted to have access to their own children and who were being denied it through a system of abuse of the legal aid system and of the Family Court. That is simply not good enough.

If we can keep people out of court, if we can get them to take responsibility for their actions rather than blaming their lawyers, and if we can get them to take responsibility for their children, I think that is a very sensible thing.

💬 Andrew Little: Who’s blaming the lawyers?

The member asks: “Who blames the lawyers?”. Well, having been a lawyer for 22 years, I have listened to a lot of people blame everything on their previous lawyers but who, after $200,000 worth of legal fees, now wanted to settle it. I think it is incredibly important for people to understand that, yes, people split up, but there is no need for these matters to go to court unless every other avenue has been addressed. People need to be helped to be responsible for their actions.

What we also know is that if we want to see the abuse in the Family Court system, all we need to do is look at the way that the costs in the last 5 years have gone right through the roof—a 65 percent increase in legal aid costs out of Family Courts. Do we think for a moment that there is a 65 percent increase in benefits for the people who were going into the Family Court? No, unfortunately there was not. Were there any better outcomes for children? No. Were there any better outcomes generally for families? No. There were, in fact, more people encouraged down a route that was going to actually tear them apart as families and also come between children and parents.

We all know as parents that it is a very tough job being a parent. It is actually even tougher being a 6-year-old child being asked to have your own lawyer and having to tell your lawyer where you want to live. I cannot understand how anyone can think that it is anything other than, frankly, abuse of a child to require a child aged 6 years old to choose which parent they get to live with. That is like saying to a child: “Who do you love more, Mummy or Daddy?”. That is not fair to a child. That is the role of the parents, and if not the parents, of the court. The court has the opportunity under this bill to appoint a counsel for a child if needed, but it should not be the norm. It should be in exceptional circumstances when it is needed, not because the parents are not being encouraged to come up with reasonable decisions about their own children. It is for the court to be able to make a decision if they cannot reach that.

I make no apology for thinking that parents need to be in charge of their children. They need to put their children first and they need to put their own personal views about the other parent second. It is not the child’s fault that the parents have split up, and too often children feel that it is their fault, because of the way in which the court system works. So family dispute resolution is something I am absolutely supportive of, as I am of counselling when needed—when required by a judge or suggested by a judge. But it is actually time that Governments worked out—and this Government has—that families, parents, adults, and children need to be able to get on with their lives. They do not need to have some nanny professional organisation, whatever it is, interfering in every single thing that they do. Parents will not be encouraged to take responsibility unless they are, in fact, asked to do so.

💬 Hon Phil Goff: This is all about saving money, regardless of what the Minister’s saying.

Mr Phil Goff may well say that, but he, of course, oversaw the biggest blowout in legal aid ever—the biggest blowout in legal aid ever. And yet I would think he should also be thinking: “Who benefited from it?”. Did the children benefit from it, Mr Goff? No, they did not. Who benefited from it? Certainly not the children. Were the people who benefited from it the adults, the parents? No, not them. There was not one better outcome for all of the money spent on legal fees, on psychologists, or on anything else. What it did was it strung out costs for years. It also strung out massive amounts of litigation that tied up these children’s lives for years.

I think anybody who has heard some of the stories that the select committee will have heard and that I have heard—and that I know of, as a practising lawyer before I came to Parliament—will know that whenever parents went to the wrong lawyer, they ended up in litigation. They might have been there for years. This is not something that should be in the courts unless it is an exceptional circumstance, and then the court needs to act quickly, it needs to act fairly, and it needs to act decisively.

Courts should not be asked to relitigate where a child spends Christmas every year—the sort of nonsense that we have seen going through the courts. It is an absolute outrage that the taxpayer and everyone else and the children are being pulled through that sort of nonsense. The courts should be left for big decisions. The decisions around where a child lives and the big decisions about whether a child is safe are the decisions for the courts, not whether a child spends Christmas this year with Daddy or Mummy. Those are the decisions that parents must be encouraged to make for themselves, and only if they cannot should they then go to a court.

This bill is about changing the way we think about family law. Family law should be about the children and it should be about the parents. It should not be about the lawyers, the psychologists, and all the other professionals who are very highly paid to do this job. This bill is an excellent bill. I would like to particularly thank those members of the select committee who undertook to review this law on the basis of what is in the best interests of children.

The Family Court Proceedings Reform Bill started out with some very good intentions, and, indeed, there are a number of good things in it. Although there have been many worthwhile amendments—and I do think that the Justice and Electoral Committee did a very good job on it—there have, in fact, been so many amendments that the bill hardly resembles the one as introduced. I think the effectiveness of the Family Court system will, however, be somewhat compromised by this bill, so it therefore remains unsupported by New Zealand First. There are four major reasons for that: firstly, because the bill fails to ensure the availability of adequate publicly funded counselling when it is needed most, which is before any dispute takes hold; secondly, because it fails to ensure that parties will have legal representation at all stages when we think they will need it; thirdly, because legal aid will be too restricted; and, fourthly, because we think that the provisions concerning the appointment of a lawyer for the child are far too tough. So New Zealand First will be voting against the bill.

I want to deal briefly with the Supplementary Order Papers at this stage, and firstly with the Minister of Justice’s Supplementary Order Paper 349. The provisions in the bill relating to the fees and expenses of a lawyer appointed to represent the child, to assist the court or to appoint it to write a report, are amended in clause 21, so that the court may not order the parties to contribute toward the fees and expenses of a lawyer appointed to assist the court if the lawyer was appointed to provide independent advice “on any complex legal issue”. The words “complex legal issue” are highly restrictive but also very uncertain, so it is not easily possible to tell whether this amendment will really help at all. But where complex legal issues are not the reason, and where the court appoints a lawyer to assist the court, the parties would have to pay for it, and we in New Zealand First think that is wrong. The parties should pay only for their own representation, not for a lawyer appointed by the court for its purposes, whether for complex legal issues or not. There is a discretion for the court to exempt parties from this if there is serious hardship. Presumably, one party might be exempted for serious hardship, though the other might not be. But, more important, serious hardship is a high bar for the purposes of exemption from the obligation to pay, and many parties will struggle to meet the costs. We think these costs should be met entirely by the State. So the Minister has simply not gone far enough to amend the bill in this way.

However, concerning appeals, the Care of Children Act 2004, the Child Support Act 1991, and the Family Proceedings Act 1980 are amended to provide that no appeal may be made to the High Court in respect of a decision to appoint a lawyer to represent a child or to assist the court, or in respect of a decision to request a person to write a cultural, medical, psychiatric, or psychological report, or in respect of a direction that the parties may or may not be represented at a settlement conference. New Zealand First does support those amendments. We think those are sensible, and they are the sorts of decisions that should finally be made by the Family Court.

Moving on to the Care of Children Act 2004, which is also amended so that the maximum number of counselling sessions is to be determined by regulations, we do not really know what counselling would be made available, because it is simply to be set out in regulations. We suspect that counselling services will, in fact, be severely reduced. New Zealand First believes that a more comprehensive Government-funded counselling service should be provided. The bill repeals existing provisions for Family Court counselling and replaces them with a new scheme involving mandatory parenting information programmes, family dispute resolution, of course, and judge-directed counselling. We do not think those provisions are enough. It is clear that counselling now plays a very large role in avoiding disputes, and that needs to be enhanced, we believe, and not reduced in the way that we see with this bill. Not all families will break up if first given the benefit of counselling before any other process is used. Family dispute resolution should come after counselling if counselling is not enough. The new section 46E, inserted by clause 9 of the bill, is therefore too restrictive. The parties should be able to decide for themselves to do this, without having to get a judge’s direction.

Finally, regarding David Clendon’s Supplementary Order Paper 254, we will be supporting that. It gives greater weight to the principle that protects the child from all forms of violence if there is any inconsistency in applying the principles in new section 5, inserted by clause 4. Mr Clendon’s amendment would insert a new section 5(2) to provide the courts with clear legislative guidance if the application of one or more of the other principles in the section conflicts with that principle. So I agree that new section 5(a), inserted by clause 4, which says that “a child’s safety must be protected and, in particular … from all forms of violence … from all persons,”, must be clearly, absolutely paramount and be explicitly stated to prevail over the other principles. New Zealand First will support that Supplementary Order Paper, but for the reasons that I gave at the beginning of my address, New Zealand First will not be able to support the bill as a whole.

I want to support the comments that Labour’s spokesperson on justice, Andrew Little, began with, which was that this was an amazing process. It was a fantastic process for bringing law reform to Parliament. That process was to develop a discussion paper that would set out all of the issues that everybody could engage in—understanding what all those issues were about. And this amazing process happened not far from this Chamber in the Legislative Council Chamber. The then Minister of Justice enabled all of the parties to come together, and they basically held a conference here at Parliament with all of those external interests operating—with the Ministry of Justice, with the Minister, and with the Opposition parties. Everybody was there. Everyone had a say. Everyone made a contribution. We had the judges. We had external consultants. We had everyone engaging in a really, really positive process. Then we had this external reference group established, which was also able to engage in a much broader process that enabled many, many more people to be involved in developing the way the law would be introduced for debate in this Parliament—fantastic.

Except something went wrong. Something changed along the way. Instead of the bill that everybody thought would be introduced, suddenly there was the bill that was introduced—the Family Court Proceedings Reform Bill—and suddenly the game plan had changed. Actually, what changed was that it became about the money instead of about the people who we are told—lectured, I would suggest—by the Minister of Justice are the real subject of our debate. Suddenly it was actually about money. It was not about the children. It certainly was not about parents coping with the most distressing environment that a parent could possibly cope with, having to disassociate themselves with the heartbreak of being left by a partner who has just told them that they have cheated on them for the last few months and have actually left them for somebody else, maybe their best friend, and are re-establishing their life with somebody else. They were prepared, they were ready to go, but not the person who was left behind—and suddenly she is the problem? Suddenly he is the problem, if it was him? Are they the problem in terms of this process because they cannot focus their immediate and absolute utmost attention on the best interests of the child?

How heartless this Government is that it actually leaves it to people at the most distressing moment of their lives to take care of how they resolve the issues in the best interests of their children. This Parliament has an absolute responsibility for the best interests of the children, and we actually do have a role to play as a Parliament and as a Government to step in and assist parties to resolve disputes in the best interests of their children, when they may not be in the best frame of mind to do so for themselves. That is why we have always had counselling.

When this law was introduced—when the Family Court proceedings legislation came into play—I was studying law. When the Family Court was first established I was a law student. We were studying the changes that were going to replace the law that existed before that, and actually the Family Court process was much better. It was much improved in terms of what was there before, and we were all looking forward to it.

Yes, there have to be changes—we all agree with that—but why would you take out counselling? I can find that in the regulatory impact statement. I know my colleagues will be shocked to find that I have read the regulatory impact statement. It says, and I think all of you will know instantly what I am going to say: “Counselling costs the State approximately $9.7 million per year.” It is $9.7 million dollars a year. We are talking about a multimillion-dollar budget here, and $9.7 million is a small chunk of that multimillion-dollar budget, but what it saves is not mentioned here.

What it means is that couples are referred away from the court. Yes, they file under the court system—a section 9 referral—and up until now they have been receiving six different, individual counselling support sessions so that they are able to work out their issues. The evidence that we received at the Justice and Electoral Committee—and, yes, we did sit on the select committee and listen to people who came, and, yes, many of them were lawyers, and, no, Minister, they did not come out of a sense of self-interest. They came out of sense of public duty. They believed that it was important that they had the capacity to refer to counselling paid for, yes, by the State, but the benefit in that conflict resolution was for the benefit of the country as a whole and certainly for those individual children. Eighty-five percent to 90 percent of those cases never came back to those lawyers. They never came back.

The cases that the Minister keeps referring to are the very, very hard cases—the ones that come to the attention of the legal profession at the first instance. They go off to counselling, they get matters resolved, and that is where the Government should be investing this $9.7 million. But it has already cut the number of counselling sessions in half and is going to reduce the number down to one session after this legislation takes effect. This is absolutely crazy. You can talk about alternative dispute resolution or family dispute resolution all you like; the first step is the counselling sessions that are there. They are the dispute resolution provisions that we have at the moment. They are fully funded. They were funded at the level of six sessions before and that is now reduced, as we know.

I cannot understand how the Minister can stand in this Chamber and say that the Government does not want nanny State, nanny agency—whatever—to stand in the way of making decisions that might assist the best interests of children when parents are in a highly charged emotional state. Many children in this country get killed by a parent every year or get killed by a caregiver every year in this, a developed nation. This is supposed to be the country that is the best country in the world in which to bring up children, but we cannot find it within ourselves to fund $9.7 million worth of funding to assist parents work through these most highly charged issues.

The Minister said that the UN does not bring up children. That is true. The United Nations gives an absolute statement of what a child is entitled to expect of its country in terms of his or her rights in the United Nations Convention on the Rights of the Child. The rights of the child have got to be protected by our Parliament—or what the hell are we doing here? Why are we here as members of Parliament if we do not care about the rights of children? What are we in Parliament for other than to advocate for the rights of children? You know, I have to say that I am actually not disappointed to be leaving this place right now, because I am absolutely appalled that we would allow legislation to go through this House in order to take away from those people their actual reliance on this Parliament doing the right thing for their families, and that is to protect children against what are perfectly normal human emotions at times of great distress, and to enable them to come through and to achieve whatever they can achieve in their lives. But we will not do that by taking away their rights to our support at this very, very, very difficult time.

So I have to say that we might have had a very good process going into this legislation. My difficulty is that dollars and cents have taken over from the common sense that actually drove the original reform process. Instead of focusing on the solution, we have now started focusing on the problem, but we have framed the problem as one about money instead of human rights, children’s rights, and the things that really matter. I would have thought they would matter most to a country like New Zealand.

I rise to take a call on the Family Court Proceedings Reform Bill. We heard about the aspect of sense and common sense in that speech by Lianne Dalziel, but I think that in some cases some of the member’s points that she made were nonsense, in the sense that I was also part of that Justice and Electoral Committee, along with her and also Mr Little over there, and we heard what they had to say. The regulatory impact statement declares that the aim of this bill is “... to create a modern, accessible family justice system that is responsive to children and vulnerable people.” That is the intent. Do we care about children? Absolutely—absolutely. It is nonsense to say that this Government does not care about children.

There were 386 written submissions, 217 of which we heard at the select committee. Here are just some of the comments, because I want to give a balanced view around the perspectives that have been shared today. This is, word for word, from submissions that were shared at the select committee—a variety of different submissions.

Here is one of the submitters and this is what they said: “This is not about the lawyers. I am particularly interested in the extent to which it is feasible to provide positive, conflict resolution assistance to families and lawyers and clients. I support the intent of this bill, because I have seen money wasted on legal fees and Family Court time that could be better spent on helping parents”—and here is the key point—“and children.” So you cannot argue with that, because here is a submission from a submitter out of the 217 and this is what they are declaring to us.

💬 Andrew Little: Who was that?

This was actually down in Christchurch and Mr Little was there as well. This is what we want to say. In the select committee we have heard, we have listened, and we have responded, and here are some of the recommendations.

I want to pick up on the point around counselling. We heard Relationships Aotearoa, which provides counselling services. When we asked it what the number of sessions it gave was—and we know that it is currently contracted for four sessions—this is what it said. The number of contracted sessions that it provides, on average, is three sessions—three sessions. So, in response to that, we have also said that a recommendation from the select committee is to provide up to 3 hours’ preparatory counselling for eligible parents so that they can make the most of family dispute resolution. We are responding to what we hear are the concerns: three sessions, 3 hours. That is what we are responding to.

The other issue that I want to talk about is about empowering the judge to be able to refer parties back to family dispute resolution and also Parenting through Separation. I have sat through and I have also taken part in Parenting through Separation. I have seen the importance that that has had. We heard from some submitters who were in quite an emotional state, and you have heard about that. It is an emotional state.

Often, when parents have got into that state, it is not about what is right; it is actually about what they feel within themselves. All of a sudden—one of the submitters talked about this—everything just went red for them. They could not see the wood for the trees. All they saw was their sense of right. What they forgot about was their responsibility for their children—the responsibility for their children—hence the reason why Parenting through Separation is absolutely important. It has been endorsed by those who have been through this course and who have seen the importance of the course. Parenting through Separation—what does that do? It actually allows the parents to see the children, hear the voice of the children, and recognise the importance of the children to be taken into account in this issue as well.

Also, one of the things that was indicated as part of a recommendation of change is to provide up to 4 hours of legal support before entry into the court for parents who meet the legal aid threshold. One of the other areas that we think is absolutely important is enabling lawyers to get involved early in the court process at the judge’s discretion. It would increase the chances of a successful resolution.

What is really important to us is that family dispute resolution has been endorsed by the arbitrators and the mediators who came to make their submissions. This is what they said to us, word for word: “Good arbitration, good mediation, has the ability to be able to exit families out of the court system as early as possible.” We know that the court system in itself is not only brutal but traumatic, and is not a place we want our children to be part of. We do not want them to see their parents in the trauma of fighting against each other. We have heard that time and time again.

What we have heard, again from the mediators—well-trained mediators—is that the family dispute resolution is important to this process as well. So this bill establishes the family dispute resolution process to focus the family justice system towards supporting people to resolve their disputes where appropriate and, most important, out of the court system.

The bill also requires a person to complete a parenting information programme as well, and—

I am pleased to take an initial call at this stage. It was interesting to hear the Minister of Justice’s comments some few minutes ago. They were a very useful summary of what I consider to be the mythology that has grown up around the Family Court and the various issues and problems that are associated with it. I think it is the overstatement of those problems that leads me to the language of mythology. Like all good myth, there is enough of an essence of truth in there to make it almost credible, but it is grossly overstated. That overstatement is used for a very dramatic, a very far-reaching, and, I think, a very ill-conceived set of changes to the court and the court processes that will resolve some of the undoubted issues that have emerged, some of the difficulties with the court, but at great cost—at the cost of making vulnerable people more likely not to get good service from the court and of exposing children and, indeed, some of their parents to considerable danger at some points.

The language I was referring to in terms of the Minister’s contribution was about a budget blowout. Yes, indeed, there was an increase in spending, but it is interesting that some of the groups that sought to get a little bit more analysis, a little bit more guidance about how that all broke down and how it shaped up, found significant barriers in their way. We have yet to see a comprehensive analysis of this so-called budget blowout. We heard reference to highly paid lawyers and counsellors, as though it is their fault. In fact, again, that is not sustainable in real terms. We heard literally hundreds of lawyers presenting. We heard counsellors. We heard other professionals who work in the Family Court. Frankly, none of them struck me as being motivated by this supposedly very lucrative place called the Family Court. Lawyers who want to make lots of money are very ill-advised to go into Family Court work. We know this. In fact, for that reason, some of the larger partnerships are actually discouraging their partners and their associates from engaging in family law. It is not about people using this as a gravy train, least of all the professionals.

We heard a lot about the trivial cases that come before the court. And, yes, I have witnessed that personally—not at first hand, I am pleased to say. But we know that, yes, people have used and misused the court to continue their domestic battles by other means, to argue over very trivial issues, often at the cost of the children involved. But these are the minority of cases. We know that the large, large majority of New Zealanders whose relationships fail do resolve their issues internally. We have heard a great deal about the need to get the State out of these private matters and to leave it to the parents to resolve their own problems. I agree with that. Most New Zealanders agree. And most New Zealanders achieve that. In fact, as a percentage, very few cases where the marriage or relationship breaks up do ever come to the court. Some do require counselling and benefit from that. I agree that that $9 million - odd—less than $10 million—is money very well invested, rather than spent.

Most couples do resolve their issues. By definition, the cases that come before the court are the hard cases. They are the ones where the individuals, the couples—whoever is concerned—have not been able to resolve their differences. Yes, we might stand in judgment and say they ought, as grown-up adults, to be able to do that, but the reality is that many of them do not and cannot. In the course of trying to take away their opportunity to use the court as a battleground for their occasionally trivial issues, we are also taking away that opportunity from people with very deep-seated, very real, serious issues about safety, about the uneven power within relationships. All of these are matters that are very serious, and they need to be treated as such. In the reforms proposed to the Family Court proceedings, we see that we are throwing out an awful lot of babies with the bathwater—and I do apologise for the inevitable cliché, but there you are.

There is a great deal at stake here. Again, it is not to say that the court is not in need of reform. It is a 30-year-old institution, and there are very few 30-year-old institutions that cannot stand some improvement in terms of process. Initially, there was a very good analysis of what that was and where it might go. But things did go astray, very clearly. When you get groups like judges, like lawyers, like counsellors, like many, many people who came to us who had had dealings with the court—some of them having had very good experiences in the court, others having had very unfortunate experiences—we heard about the breadth and depth of the issues the court does confront.

Clearly, the legislation is about the safety of children. Part 1 of the Family Court Proceedings Reform Bill amends the Care of Children Act. Clause 4 talks about the child’s welfare and best interests needing to be paramount. That is as it should be. I say with absolute confidence that nobody who sat on the Justice and Electoral Committee, nobody in this Chamber, would dispute the importance of protecting children. Their safety and well-being ought to be paramount and it is a good thing that that line is in there. There was considerable debate, however, in the select committee—good debate, principled debate—about the removal or otherwise of sections 58 to 62 of the Care of Children Act, the so-called Bristol clauses, which were seen to offer another layer of protection where there are allegations of violence against children. Personally, it was a very difficult decision. I know that our party, other parties, and members of the select committee also struggled with the proposition in clause 14 of the bill to remove those sections. There was a very good analysis from the Law Society that spelt out the pros and cons and determined that we could do without those sections, that there were some negative aspects in terms of cost, in terms of delays, and in terms of the separation of parents from their children, which later proved to be unjustified. Some of the language in new section 4 and, indeed, new section 5 in clause 4 around principles related to child welfare are seen as a replacement and sufficient to ensure the child’s interests are paramount.

But I make reference to Supplementary Order Paper 254 in my name, where I highlight that there is a possible conflict in some of these principle clauses, particularly when we see that there is a strong proposition that members of the child’s family group, whānau, etc., should be involved in the child’s ongoing care and that the child should continue to have a relationship with both their parents. But we also acknowledge that there are situations where being with family is the last place that a child should be because there is danger within that context. I see within the principles and, indeed, with new section 4 some potential conflict where judges or others might be obliged to try to balance this notion of the paramountcy of the protection of the child with the very compelling proposition that families should continue to be involved in the care and treatment of their child.

I do think that this proposed amendment goes some way to removing that potential for conflict, for uncertainty. It spells out that in every situation, if there is any sense that we could make a call one way or the other, the paramountcy of the safety and interests of the child must be at the top of the hierarchy. Those principles could be read as a hierarchy, they could be read as having equal weight, and I do think we need just to remove that potential for conflict, that potential for uncertainty. I do think that is what the Bristol clauses were originally in place to do—to ensure that we did everything we could to protect children from that situation that could end in that ultimate tragedy, which, of course, the Bristol case was.

So we do see value in the proposition in this Supplementary Order Paper, and I encourage other members to support it and look at it. It is not intended to be a political statement. It is not intended to second-guess any of the negotiations or the discussion that occurred in the committee. It is a genuine attempt to ensure that no judge—nobody—is obliged to make that call about which of these principles is at the top of the heap. It makes it absolutely certain, beyond any uncertainty, that the welfare of the child, the safety of the child, must be paramount. I think I will leave it at that for this contribution, and look forward to discussing this further.

In the bill that we are discussing tonight, the Family Court Proceedings Reform Bill, we are seeing evidence of a Government that is increasingly arrogant and increasingly dishonest in what it puts forward. I have got to say to the Minister of Justice, I was incredibly disappointed with the comments that you, as Minister, made. First of all, it was the arrogance that somehow you, as Minister, know best. Forget the people who work hard in their profession both as legal experts and as specialists who report to the Family Court. Forget the fact that your predecessor, Simon Power, appointed an expert advisory group, a reference group, and appointed them on the basis of their knowledge, their skill, and their experience. You, Minister, disparaged the people appointed by your predecessor because they say that this bill is a disaster. Let me, Minister, use their actual words, “If this Bill proceeds as drafted, the very fabric of the New Zealand family justice system will be destroyed.”

Minister, those comments were made about this part of the bill by the people whom your predecessor appointed because they are expert in this area. I want to know from you, Minister, whether people like Antony Mahon, a barrister with 30 years’ experience on the Family Court, is a person who does not know what he is talking about. Professor Fred Seymour—I worked with Fred Seymour when I was Minister of Justice. He did brilliant things on behalf of the Ministry of Justice and to make our family justice system better. Dr Suzanne Blackwell is another person—a clinical psychologist with 30 years’ experience. Those are the sorts of people whom your predecessor appointed. You ignored their advice, and then in the Cabinet paper that you presented to your colleagues you had the effrontery to say that what you were proposing aligned with what they recommended. They did not say it was lie; they said it wrong, that it was incorrect. But I want to know from you Minister, when you take the call, why it was that the claim was made that what is being proposed in Part 1 and the other parts of this bill was aligned with what the expert advisory committee told the Government. Because they told the Government absolutely the opposite of what you have said. Then you said that this was motivated by your great desire to do what was best for the children of this country. That is not an honest interpretation of what motivates this bill, and it is not what the submitters to the committee said was what motivated this bill.

This bill, pure and simple, is about cutting costs, regardless of the impact on the families, and regardless of the impact on the children. That is what it is about. If you do not believe me, Minister, believe your own regulatory impact statement, because what does it start by saying? It states: “Given the overall fiscal situation, urgent steps must be taken to lower the cost of the current justice system …”. This bill is about cost cutting regardless of the social costs, the family costs, and the costs that you are imposing on the most vulnerable, the children, who will no longer get the sort of assistance that they need before the Family Court. It strikes me as strange that we have money to pay for Warner Bros, we have money to pay to Rio Tinto, we have money to pay to Skycity, and we have got money to give in tax cuts to the wealthiest people of this country but we cannot afford to represent the interests of children in court by counsel for the child other than in exceptional cases. We cannot afford to get the specialist reports that are needed to make sure that the proper outcomes are reached on behalf of the vulnerable children. We cannot afford to do those things but we can give subsidies and welfare payments to the big corporates and to the most wealthy. I do not accept that, Minister.

Minister, I want to refer you to the comments that were made by your expert advisory committee on the clauses that you are pushing through in this part of the bill. It says this is flawed. It says that the proposed reforms—maybe that should be in inverted commas—“are not based on empirical evidence; (b) are contrary to extensive, existing evidence of best outcomes for families and children;”. I want to know, Minister, whether you agree with the comments made by the expert advisory group on what you are proposing in this part. Let me help you out, because if you do not believe the expert advisory group, perhaps you will believe your own ministry, which says in the regulatory impact statement that the research that was done on this was limited and that some of the proposals have to be based on overseas examples. There was “insufficient historical fiscal, and statistical data to accurately predict the average costs of performing some tasks associated with Family Court processes. There was insufficient time for piloting … [and there was] limited opportunity to discuss the final proposals with stakeholders.”

If I was Minister of Justice in this Chamber and I had that report from my own ministry, I would hang my head in shame, Minister, because you are making, as you have acknowledged yourself, comments that you know are not backed up by the facts. They are denied by her ministry. They are denied by the expert reference group. They say that this piece of legislation 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.” OK, if you earn less than the margin that entitles you to civil legal aid, you will not have to pay the cost of the family dispute resolution service. What is that figure? I think, Minister, it is $22,000. So if you earn less than $22,000, you will not have to pay. If you are on a ministerial salary of a quarter of a million dollars, paying will be easy, but what about the strugglers, the battlers, the people going through a really difficult time in their lives? How are they going to pay $900 to get access to the family dispute resolution service? Nine hundred dollars is going to be a huge barrier to the strugglers and the battlers in life who cannot afford that, and therefore will not be able to take advantage of that service. That is why the expert advisory group says that this will create a two-tiered justice system. Do you know what they mean by that? They mean justice for the wealthy, who can pay for the legal advice, and no justice for the people who cannot afford it.

I thought that justice in this country was meant to be equal. I thought that children, as the most vulnerable members of our society, were entitled to the assistance that they needed, entitled to the representation in court, entitled to have somebody advocate for them, and entitled to the specialist services that could say to the court in an independent way: “This is what needs to happen to protect those children.” So excuse me if I feel disgust when the Minister comes into this Chamber and says that this is about looking after the children and doing better by them. Actually, Minister, it is about doing absolutely the opposite. Then the expert advisory committee says: “for those who do have access to the services, the services will be of a lesser quality than services available to better resourced members of society. (iii) it is entirely foreseeable”—Minister, they say—“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.”

So here we have an example, once again, of a Government that will try to make savings by cutting services only to add the cost of what it is doing to the wider governmental service system. Will it help the court case not to have people represented in court, not to have people understand the legal requirements, and to have people who are engaged in a very emotional struggle between themselves and their partner not to have assistance to work through the system properly? No, Minister. It will not help. The expert reference group, your group, says that the overriding fiscal imperative is evident throughout the bill. This is a bill about savings, not quality.

Thank you for the opportunity to address this revision-tracked Supplementary Order Paper 349, which was released by the Minister of Justice, the Hon Judith Collins. To call the revision-tracked Supplementary Order Paper substantial would be an understatement. It amends almost every page of the bill as it was reported from the Justice and Electoral Committee. The bar 2 version of the bill contains substantial amendments, and Supplementary Order Paper 349 seems to be last-minute stuff. It has been released only today, Tuesday, 3 September—the day we are debating the detail of the bill. If we look at the changes to just Part 1 of the bill, which we are now debating, we see how much has been changed by Supplementary Order Paper 349. Part 1 of the Family Court Proceedings Reform Bill contains many changes, some very important changes, to the laws of New Zealand affecting our most vulnerable citizens. Fully 80 percent of this Part 1 that we are currently debating has been changed at the last minute by the Minister in charge.

Today I rang some Bay of Plenty Family Court lawyers who have previously expressed dismay at this bill. I could not get hold of them. One was travelling from Rotorua. Another was in court doing what lawyers do, and that is how life should be. We should be working, doing what we are supposed to be doing, and in terms of bills that come through Parliament, what we should be doing is putting these bills under full scrutiny. I ask where the opportunity is for full scrutiny of this bill. Where is the opportunity for those people, the experts in this field, to fully engage with due process? This is important because this bill has the potential to affect any child in New Zealand.

I would like to now turn to Supplementary Order Paper 349, where today we have in clause 9 the surprise appearance of new section 46GA being parachuted into the Care of Children Act. This restricts the counselling available under new section 46E of the Act. That new section 46E of the Act was contained in the bill as introduced back in November last year. It was substantially the same in the select committee report a few months ago, in June. There were a few minor changes in the wording. The intent of new section 46E was, and is, as set out in section 46E(2)(a) “to improve the relationship between the parties:”—that is, the parents—and “(b) to encourage compliance with any direction or order made by the court.” That sounds like something positive for the children caught up in all this, but now the availability of counselling is to be throttled by new section 46GA. It says: “The maximum number of sessions to be carried out ... must be determined ... [by] regulations ... or, if no such regulations are made, by the Registrar of the court.” So on the face of it this is more cost cutting by the Government and it is more cost cutting at the expense of the welfare of New Zealand’s vulnerable children.

I turn now to new section 49AB contained in clause 12 of Supplementary Order Paper 349. This is another whole new section to be inserted in the Care of Children Act that, again, has made its appearance only today. It states: “Interim parenting order may become final order on specified date”. It appears to be quite technical and detailed in providing that: “... a Family Court Judge may” when making an interim parenting order “direct that the interim parenting order is to become a final parenting order on the specified date”, and there are subsections (2) and (3), which appear not to be contentious. But, as parliamentarians have learnt to their cost over the years, the devil is in the detail.

I would ask why this change is appearing at the last possible minute. Why is it that the experts in the field, the people outside this House, have no chance to scrutinise the new detail of this law? I would like to hear from members opposite whether there is a member of the National Party’s caucus committee on vulnerable children who will say whether they have even seen this new section, let alone had it explained to them, or have been given the chance to ask any questions about the wording, about the detail, and why there should be new law around whether and when an interim parenting order can become a final parenting order.

It was interesting listening to the honourable Alfred Ngaro speaking about exiting people out of the Family Court system as soon as possible. This bill will certainly do that, because this bill will greatly affect the vulnerable people in our society, the parents and those at the centre of all our concerns—of course, the children. Parents and children will struggle with what the bill now means to their future, as individuals and as families. I cannot emphasise enough the intense waves of anxiety and huge costs, emotionally and financially, already experienced during these times. This bill will exasperate the very people it is supposed to support, with additional legal costs and free counselling removed, adding to the living hell that those parents will already be going through. Parents in these difficult times should not be undermined and these parents should not be made to struggle further with legal ramifications—that is, agreeing to things in a process that they do not fully understand or have fully had time to process in their heads, and the costs.

Although most New Zealanders love the idea of the family dispute resolution concept in principle, it will actually be met with unfair battles. The expectation that parents will be fairly matched during this process, even with the assistance of one facilitator, is totally unrealistic. As we know, in these family battles one person holds the strings, one person is dominant, and one person will be able to afford a very expensive lawyer in the background, giving them advice. Each parent will have their own view about what is best for the child. Let us not forget that they would not even be there in the first place, if this was not the case.

Throughout the Committee process, it has been recognised that the focus of this bill is to cut the cost of legal aid, as it has become unaffordable for the Government. In fact, the costs have skyrocketed, yet the numbers of cases have not. I suggest we look at how this can be. What are the real issues for the cost increase? Why are we prepared to cut the services being offered before we really understand where the blow is coming from? More important, making the vulnerable people in our society go without legal representation or an understanding of what they are entering into cannot be right. We need to listen to Family Court lawyers all over New Zealand who are saying that this bill is absolutely frightening, particularly as it could leave the vulnerable parties—children—without legal protection. Thank you.

I move, That the question be now put.

Before I point to any particular clause in the Family Court Proceedings Reform Bill, I would just like to join my colleague the Hon Phil Goff in saying that I think we have actually been witness to close to an Academy Award - winning performance from the Minister in the chair, the Minister of Justice, because she would have us believe that her motivation for this bill is to improve the outcomes for children and families who are going through Family Court proceedings, and that her motivation is to make sure that the outcome for many Family Court proceedings is in the best interests of the child. We know that there are many people out there in the legal fraternity and those who are assisting families in getting through this process who do not believe it. Alfred Ngaro launched a gallant yet failed attempt to run a diversion for the Minister by talking about some of the submissions that were heard at the Justice and Electoral Committee. Very selective was Mr Ngaro.

I would also like to take the opportunity to show or at least read out some of the submissions that came from the Christchurch Family Court judges—people who, I think, would know this process relatively intimately, and certainly would not want the justice system clogged up with unnecessary cases. To say that the Government wants to make this process easier for families and much better for children—the Christchurch Family Court judges do not buy it. I read from their submission. Whoever gave it, it was on behalf of the Family Court judges. He said: “I intend to speak plainly in the short time I have available. I speak on behalf of the Family Court judges of Christchurch. We recognise the driving force behind these reforms is to cut State expenditure on the Family Court.” This is the Family Court judges recognising that the motivation is not to make things better for those going through the process, but to cut State expenditure on the Family Court. They said: “In our opinion, the effect of the reforms will be the reverse: to increase State expenditure arising from the relationship breakdown.” So there we have it, a submission to the select committee on this bill from Family Court judges in Christchurch, fully recognising that the main motivation of this bill is not to make the process easier or the outcomes better for children or their parents, but to cut State funding, and they think it will do exactly the opposite. That is the Family Court judges in Christchurch.

Clause 4 of the bill does point towards the child’s welfare and best interests being paramount in this process, but through this process, since the bill was introduced, there have been a number of people who simply have not thought that this piece of legislation will achieve that. When this piece of legislation was submitted late last year—I believe in October, it was—Professor Mark Henaghan, from the Otago law school, said of clause 7, I believe, about the ability not to have mandatory legal representation, in a media report: “Much of the fight, sadly, is about children. [But] if you take their representation out, we kind of doom them not to be heard.” I think the end of that quote from Mark Henaghan is quite apt—if we take out their representation, then we doom them not be heard. We heard from the Minister in the chair at the same time that she was OK with that. She said: “The current situation where pretty much every child gets a lawyer is overkill, frankly, and is not necessary.” That is what our Minister of Justice said at the time of the introduction of this bill. There is great concern about those comments, this bill, and what she said at that time.

I think, as many colleagues on this side of the Chamber have said, that there was an attempt to strike a balance between maybe getting some cost savings and improving the Family Court process. But over time, when this bill was introduced—and, I think, just before this bill was introduced—there was certainly, and I have felt in my community, a concern about what might arrive on the Table when this bill was tabled. Those concerns were valid when this bill arrived here in Parliament. I just want to make sure I mention the name Catriona Doyle from Family Law Specialists in Porirua, who came to me almost instantly, as soon as this bill was introduced, with her concerns around this bill. She called a public meeting in Porirua, which was quite well attended, and attended also by my Green colleague Jan Logie, who is based in Mana. It was quite a full meeting and a lot of—

I move, That the question be now put.

I just want to conclude the comments I started making before, and just say this: the last thing that we need in order to understand what is going on with this bill, the Family Court Proceedings Reform Bill, and with the changes to the Care of Children Act is finger-wagging piety from the Minister of Justice. It does not help families, particularly those who are going through a very stressful and very difficult time, to hear from the Minister that they should pull their socks up and sort it out themselves, as if it was some sort of Gary McCormick pull-yourself-together party arrangement. That does not help. The stark reality is that family separation is one of the most stressful and difficult experiences not only for the couples involved but also for any children involved.

It does not help for the Minister simply to say: “People are grown up and they should sort it out.” The truth is that they do not. They did not before 1981. The problems were getting worse and worse, and it was clogging up the High Court. Different parts of the problems were being sorted out in different parts of the court. It will not fix it up now if we take away the very things that have actually assisted a lot more families and a lot more couples to sort out their problems, because that is what this bill is doing. Simply telling folks to grow up and sort it out does not fix the problem in front of them. People, when they are in the process of making arrangements that have legal effects and a legal impact, are entitled to and must have legal advice. People generally know—or perhaps they do not understand the extent of it—that when you get married or get into a long-term relationship in the nature of marriage, you are creating legal consequences for yourself and your partner. When that unravels and comes apart, there are legal effects that have to be taken care of as well.

That is why we have the Family Court. That is why we have a family law framework. When we make changes to it we had better understand that those aspects that are driven by and surrounded by natural human emotion need to be treated very carefully, especially when there are children involved. It is the height of patronising nonsense for the Minister to say: “Oh well, they loved each other enough to come together and they loved each other enough to have a child; therefore, they can sort it out.” That is ridiculous—that is ridiculous. It is because they once loved each other so much and it is because they both committed to a child or children that when that unravels it gets very difficult to hold on to a sense of perspective. That is why people go to sources of independent advice. Those who do not have the means need to look to legal aid to get access to that advice so they can make decisions, so they can get perspective, and so they can help themselves and their children and the community at large. It does not serve the interests of the community for there to be families who are in constant disputation with each other.

If there is any further evidence required that this bill is totally about transferring the cost of family disputation—from those bits picked up by the State at the moment—to families, you have only to look at clause 21. We already know that the cost of counselling is being reduced. We already know that there is a new charge being introduced for mandatory family dispute resolutions for cases not involving allegations of violence. We already know that legal aid is being cut, and now we also know that when the court feels it has to appoint a lawyer to assist families in the final settlement of the issues before them, those costs will be apportioned between the couple themselves. The exclusion is not just if the court finds there is hardship, but only if there is serious hardship—and serious hardship is defined in the bill. It sets a very high threshold. This bill is all about the costs being presently and correctly picked up by the State, because the public have an interest in effective and efficacious family dispute resolution, and all those costs now being landed back on to the parties themselves, irrespective of their means to pay.

That is the insidious nature of this bill. It will drive families to agree to settlements that do not suit them and that are not suitable for their children. It will drive couples to enter into these processes without the benefit of legal advice and assistance, and that will cost the community in other ways. That is the dreadful thing about this legislation. That is why we remain opposed to it. I think the one redeeming aspect of all of this is David Clendon’s Supplementary Order Paper 254, which confirms at least the priority and the paramountcy of children’s interests in the principal part of the bill. That is the only thing we can bring ourselves to support. The rest of the bill is a dog and we are opposed to it.

I move, That the question be now put.