Family Court Proceedings Reform Bill

Thank you for the opportunity to complete the call that I started a few weeks ago. Part 2 of this bill, the Family Court Proceedings Reform Bill, now clarifies that the Ministry of Justice has responsibility for the approval of providers of the non-violence programmes. The legislation needs to be sufficiently flexible for the future, to ensure that appropriate providers can deliver safe and effective programmes to the people who need them. If they are required, regulations can be made to prescribe the approval process, as well as the criteria for making these decisions. Overall, the amendments to the Domestic Violence Act will give effect to the Government’s aim of ensuring ongoing safety and protection for children and for vulnerable people. The changes will improve the Family Court’s responsiveness to domestic violence, ensuring that it is more focused on safety.

The issues in Part 2 of the Family Court Proceedings Reform Bill are not extensive. It is a very important rewrite of crucial parts of the Domestic Violence Act, and, in principle, there can be no objection to that. This part of the bill and the changes that it makes to the Domestic Violence Act include—which the Minister of Justice seems to have omitted in her comments—an amendment to the definition of “domestic violence” to now include “financial or economic abuse” as a new form of domestic violence. I think there is justification for that addition, or at least for a clarification of what constitutes a form of violence.

The redrafted provisions make a distinction between safety programmes that are programmes for victims of domestic violence, and the part also provides for what are called non-violence programmes for alleged abusers or those who commit violence or domestic violence. As the Minister correctly pointed out, there is now a registration process for service providers.

The reason I wanted to take this call was to just make this point. This is not to detract from these elements of the bill but to say that there is a real risk under the redrafted provisions—as, in fact, there is today—of the credibility of these provisions being undermined if the District Court is not properly resourced to exercise its jurisdiction not only in granting protection orders and making orders in relation to safety programmes but also in its safety valve role in ensuring that objections to the granting of protection orders can be properly heard.

I simply want to relate the facts of a case that is known in New Zealand—and is, in fact, known to the Minister—where a man who was the subject of a protection order following an altercation between him and a former partner was then under police investigation for assault. He was the subject of an application for a protection order without notice, which was granted. He was ordered to attend a non-violence programme. There was a 10-day objection period, but because this was around Christmas time he missed the 10-day cut-off. He said that it was partly because of bad advice, but, in any event, he missed it. It was then 4 months before he could have his objection heard. By that time, the police had concluded the investigation into the alleged assault and found that not only was no assault committed but, in fact, the antagonist was the former partner, who was held responsible for the altercation that occurred.

By the time his objection was heard, he was part-way through the non-violence programme, having been told that if he failed to attend, he would be subject to arrest. He is still, to this day, waiting for the court’s decision on whether or not the protection order was properly granted and whether he was required to attend a non-violence programme.

I might add that he has completed the programme. He is a supporter of the Domestic Violence Act. He is a supporter of protection orders and the orders contained in the Act. But he has been dealt an unfair deal and been given a dirty blow because of the lack of resourcing of the courts, and this Minister, as the Minister of Justice, is responsible for that. She has to understand that if the courts are not properly resourced, then this sort of legislation, which she sponsors, will not be regarded with any great credibility. The credibility will be undermined. She needs the confidence and the support of the community for these sorts of measures to be properly supported and to work.

I simply ask the Minister to please give us an assurance that when these sorts of applications are being provided for—when people’s liberties have the potential to be constrained—let us have the judicial safety valves in place, properly resourced, and able to deal with those sorts of objections. At the moment, clearly, there are people who are being treated unfairly and who are victims of injustice if those resources are not there in place. This provision of the bill, these redrafts of these parts of the Domestic Violence Act, will be given scorn and derision if those safety valves are not put in place. I simply ask the Minister to give us an assurance that people will not be treated unfairly when they are faced with these orders—these very important orders that are about securing people’s safety—if, indeed, the resources are not there.

The amendments to the Domestic Violence Act 1995 in Part 2 of the Family Court Proceedings Reform Bill are generally appropriate, in my view, looking at the evidence, but I want to talk about the general point of how the Government has gone about putting this part together, because when I read the bill I see that there are no less than 20 pages of deletions in the—

💬 Tim Macindoe: No fewer.

No fewer, if you like—no fewer. There are probably more, actually—more than 20 pages of deletions in the bill that the Minister of Justice brought to the House. Any bill that a Minister brings where one part is almost entirely deleted and has to be replaced is a suggestion, Minister, that it was ill-drafted, ill-prepared, and ill-researched.

There is no better authority for those accusations than your own regulatory impact statement, which you delivered late to the House—after, in fact, the first reading of the bill had taken place. It said that although there had been some research done, the research was limited. You looked at other countries—the United Kingdom and Australia—despite the differences in the systems. The regulatory impact statement then said: “There is insufficient historical fiscal and statistical data to accurately predict the average costs of performing some of the tasks associated with … processes. There was insufficient time for piloting proposed processes or for undertaking an historical file review … to obtain further data”. It also said: “because of the time frame, there has been limited opportunity to discuss the final proposals with stakeholders.” All of those criticisms, Minister, are from your own Ministry of Justice. When you bring a bill to this House where Part 2 of the bill is almost entirely deleted and rewritten, that suggests poor preparation on your part. It suggests a bill that is half-baked in this part, and, unfortunately, even more so in some of the other parts of the bill that we most object to.

The other worry I have is that the previous Minister of Justice set up an expert reference group to give advice on this. Its members were people who, on average, had done 20 to 30 years either as Family Court lawyers or as psychologists. These were people who were enormously experienced in this area, and the report from the Minister’s ministry says that it followed the advice of the expert reference group. Well, the expert reference group was highly offended at that statement in the report and said that in key areas of that report, in fact, you, Minister, entirely ignored their advice. This is what its submission says about domestic violence—the very part of the bill that we are looking at. It said: “The hidden dynamics of domestic violence and abuse will mean that many women will be at risk from a new family justice system”—that is the system the Minister is introducing in this bill—“which creates barriers of costs, rights to representation and legal aid and early intervention in cases by Judges.”—barriers in terms of costs, barriers in terms of rights to representation, barriers in terms of more restricted legal aid, and barriers in terms of the judges being able to intervene before the dispute becomes nastier and more difficult to resolve.

It also says: “It is the two tier justice system created by this Bill which significantly increases the risk for victims of violence.” So according to the experts appointed by your predecessor, the effect of this part of the bill, which purports to actually improve the situation for victims of domestic violence, and the overall effect of the bill are to worsen the impact of violence to increase the risk to victims, whatever happens in terms of the technical changes in this part of the bill. It is almost without precedent that a Minister sets up an expert advisory group, that group is ignored, and then that group says that the bill will do exactly the opposite of what the Minister comes to the House and purports that it will do. We are very concerned about whether the overall effect of the bill on domestic violence will be helpful.

I want to look at the specific provisions of this part. The current legislation in terms of domestic violence allows for the issue of protection orders, and the respondent under those orders is generally required to attend a domestic violence programme. The difficulty with the status quo—and this is where I do agree with the detail of this part of the bill—is that the programmes are heavily prescribed in regulation, and the attendance by the other party, which is not the violent party but the respondent, is also very low. That suggests that the nature of the programmes that are being run for both the perpetrators and the victims of domestic violence needs to change. Many respondents do not complete the programme, and the answer to that, including in this part of the bill, is simply to increase the penalty that applies. It goes, I think, from 2 years of imprisonment up to 3 years, if I recall that rightly. Well, I do not think that imprisonment because you failed to attend a programme is actually the effective answer. A more effective answer in this part of the bill would be if the programmes were designed to actually meet the real needs both of the respondents and of the perpetrators of the violence.

So I think it is a good thing that we will improve the format and delivery of the stopping violence programmes. You need to assess it, and that is provided for in this part of the bill. The assessment is a good idea. You need to tailor the services to more effective responses. I think that is good. The risk, Minister—and perhaps you would like to comment on that—is that with the greater variety of programmes, you may well have some inconsistency in programme delivery. I would like to know from the Minister what she intends to do to ensure that while you have diversity of programmes, you also have a consistency in terms of the outcomes of those programmes that are sought.

The second thing that occurs in this section of the bill, as I have mentioned, is increasing the sentence for breach of the protection order. The difficulty with doing that is that, in many cases, increasing the penalty could make victims actually more hesitant to report breaches of the protection orders. That, again, would have the perverse effect of achieving precisely the opposite of what you want to do in this section of the bill.

The final thing I just want to comment on briefly is clause 35 of the bill, which changes the definition of domestic violence, adding financial or economic abuse to psychological abuse. The sort of thing that I guess we are trying to get at in this part of the bill is where one partner denies or limits access to financial resources or prevents or restricts employment opportunities for the other party. I think it is important that those things are taken into account as reflective of the sort of psychological abuse that can happen in a relationship, and that part of the bill is helpful.

So, in summary, the detail of Part 2 is actually quite good. I think it is responsive to a particular need, and we are not opposing that part of the bill. But if you look at the wider impact of the bill, because of the denial of access of people to proper justice procedures to resolve family disputes, it will be, as the expert advisory committee said, to probably increase the risk of violence, not reduce it.

I will take just a quickish call on Part 2 of the Family Court Proceedings Reform Bill. I want to start off where the Hon Phil Goff finished, and that is on clause 35, which extends the meaning of domestic violence. I am taking the opportunity here to pose a question to the Minister in the chair, the Minister of Justice. For the benefit of those watching, I say that this bill changes the meaning of domestic violence to include “financial or economic abuse (for example, denying or limiting access to financial resources, or preventing or restricting employment opportunities or access to education);”. I am pretty sure that a number of us in this Chamber may have had constituents come to our offices about this. I think this kind of thing is happening more and more—I guess more in the case of denying or limiting access to financial resources. We are seeing much, much more of that. It is more common, in my experience, with women, where their former partners are not giving them access to the money they had together, or any other kind of property, and they find themselves in a situation where they are trying to get access to that.

Although we on this side of the Chamber think that it is generally a good thing to be able to include that meaning of domestic violence within this bill, when you couple that with other things that happen in this bill, we do have some serious concerns about the ability of those people to get access to some of those financial resources. I have had someone come into my office who is in the situation of trying to get access to money from a relationship she had, and if she had to represent herself, which is one of the options available to her within this bill, she would be at a considerable disadvantage. So a question that I would like to put to the Minister in the chair is how we can help people like that out there who are trying to get their hands on money, who do not have the money to be able to fight to get that money, and who are going to be forced to represent themselves and may not have the knowledge of the systems within the court proceedings to be able to do a decent job of that, or a job that might be able to get them access to what they think they are rightfully owed.

We do have concerns around the resourcing, as Andrew Little said, and the cost cutting that is going on in this situation, because in another area where there is the ability to self-represent, in the aspect of care of children, there looks to be a saving of about $41.3 million over 3 years, according to the numbers here in the regulatory impact statement, which I have before me. If the Government wants to set out to save money in this area around self-representation, I think a fair enough question to ask the Minister in the chair is whether we are going to expand the definition of what family violence is, and that includes financial abuse and denying financial resources. I think we are going to find predominantly women in the situation of trying to get their hands on that financial resource. They are going to come from a very low financial basis. They are trying to get hold of that money. How are they going to effectively represent themselves to be able to get their hands on those resources for which the definition in clause 35 expands the meaning of domestic violence? I know there are certainly some people whom I have met who would be in that situation, so if the Minister sees fit and is able to respond to that question, I would appreciate it.

I will take just a brief call on this part to add a little bit more to what my colleagues have just spoken about. Certainly, I am particularly pleased to see in clause 35 of the Family Court Proceedings Reform Bill financial or economic abuse being added to the definition of psychological violence, because, indeed, as we go around in our constituencies and in our own communities, we see this hidden aspect of violence where, on the face of it, much is fine, and there is a home and other resources, but when it comes to taking away from a person the ability to be financially independent to the extent possible, that is something that has very caustic effects on psychological well-being. It is a hidden type of abuse and sometimes difficult to prove as well. Some people are quite happy to provide the physical resources, but when it comes to finance and the independence that comes with it, that becomes a major difficulty. So my first point is that I am glad to see that in the definition, and it is something to be supported.

But this part of the Family Court Proceedings Reform Bill is like the rest of the bill. It is like the curate’s egg: some parts of it are very good, and other parts of it are not. The second point that I do appreciate is Part 2A, inserted by clause 52A—the codification, if you like, of domestic violence programmes. I think it is a good piece of work where, indeed, a lot of thought has gone into setting out the definitions of family violence programmes, the codification of how they are to work. I particularly like the expectations as to how those programmes are to work.

Indeed, there are any number of programmes where you can refer somebody to a programme not knowing and not having any idea of what is to happen when that person who is to receive assistance gets there. It is quite frustrating because if the expectation is not clear, the service is not provided properly, and what is needed to address the violent behaviour is not provided, in the end a very good opportunity is lost. The person can sign off and say “Yes, I’ve gone into this programme and have experienced it.”, but, indeed, nothing much changes. So it is good to see the kinds of expectations that are laid out in new Part 2A. It is quite satisfying for me personally.

How referrals are to be made is also much better clarified. Finally, judges maintaining a watching brief is also quite important, and that is something that we see in the Family Courts already. So those aspects of this part are quite good.

But I do want to also add my weight to what my colleague Andrew Little was saying: that if the courts are to provide these services in what is a difficult area of relationships, then they also have to be serviced, particularly when protection orders are granted, and—probably as important—when an appeal against them takes place. So Part 2 is good in parts, and I am really pleased to see those two parts of it, but I certainly have a caution that resources also need to be provided. Thank you.

The question was put that the amendments set out on Supplementary Order Paper 349 in the name of the Hon Judith Collins to Part 2 be agreed to.

Amendments agreed to.