Family Court Proceedings Reform Bill

Part 3 really is not so much the meat of the Family Court Proceedings Reform Bill as the meat and potatoes of it. It is a crucial section that establishes a whole new regime of dispute resolution in the family jurisdiction. Aside from the Marjorie Proops rendition we had when we had the Committee stage of Part 1, where the Minister of Justice admonished every couple in New Zealand and told them to pull their socks up, behave themselves, and sort out their difficult affairs, this is the part of the bill that is apparently meant to deliver this whole new outbreak of peace in family circles, particularly for those families who are having difficulty keeping their relationships together. And if Marjorie Proops is going to be our guide when it comes to resolving family disputes, then we had better get it right.

The problem with the regime that is set up now is that there are very few safeguards for couples who have difficulty understanding the magnitude of the decisions they are being called upon to make, particularly in relation to the care of children who are the subject of a marital dissolution or a marital dispute. This regime depends upon couples acting like very comfortable, middle class, rational, sensible people who have got their emotions under control, have got their sense of grief under control, and can make perfectly sensible decisions. Pollyanna would have difficulty finding those couples when they are going through a marital dissolution. Marjorie Proops would as well. We will now have a regime that was, no doubt, drafted by well-meaning officials and a well-meaning Minister in the comfort of leather-bound and leather-clad chairs, but it is a regime that actually bears very little relation to the reality of marital dispute, and that is the disappointing thing about it.

So going through some of the key aspects, let us look at clause 60 of the Minister’s Supplementary Order Paper 349. Clause 60 requires the facilitators who are to be appointed to conduct these dispute resolution procedures to be accredited by the Ministry of Justice, and no doubt they have to meet criteria. But when you have a look at clause 60(3) you see that any appointment can be made on any conditions whatsoever. There is no oversight by the Minister—no oversight at all—and therefore no grounds for accountability. So the question to the Minister is this: what accountability is there going to be when it comes to appointing people who will be playing this crucial role of assisting separating couples to deal with their outstanding issues? What accountability is there going to be? How do we know that these people are going to be fit for, and suited to, the task?

How can couples who are going through this emotional turmoil be assured by those who give them advice, whether informal or formal, if they can afford it, that the people who are going to be entering the most intimate and delicate parts of their lives are fit and up to the task? They can be appointed on any terms and conditions that the Secretary for Justice thinks fit. I simply say that that is not good enough. A Minister who was giving proper thought to the drafting of this bill would not allow a power to be given against which there can be no accountability. We do not want lazy drafting from lazy Ministers. We do not need the Marjorie Proops view of the world, that we all just pull up our socks and behave ourselves. We actually need proper accountability.

We come to the crucial part, which is clause 60B, but before we get to that I just want to make this point—and a hard-working Minister would have picked this up. It is the drafting in clause 60A that provides the indefinite article before the abbreviated term FDR. It should be the proper indefinite article “A”, not “An”. It should not be “An FDR”. That is the oral version—that is what you say when you are reading it out. If it was properly drafted, we would have “A FDR provider” referred to there, not “An FDR provider”.

But I want to come to clause 60B(5), because this is really where the rubber meets the road. This allows the family dispute resolution provider—this person who is accredited by the Secretary for Justice, on no conditions at all that we are ever going to know about, because there will be no accountability—to terminate a facilitated or mediated session if they decide that the dispute cannot be resolved within a reasonable time. I just wonder what that really will mean in practice.

It will mean that once the family dispute resolution provider, having been paid their $900 out of the pockets of the couple in dispute—they have to pick up that cost; there is no assistance for that—is satisfied that their $900 worth of value has been exhausted, what are they going to do? They have no interest in carrying it on, because, remember, these facilitators are all private providers. They get their 900 bucks up front, and what are they going to do?

Well, it is very clear what they are going to do. When it gets just too hard, and time runs out, that is it. They are “outski”. They are off. They will write to the Family Court and say: “That’s it. I’ve done my bit. These are too hard for me. Look, these are people with real emotions. They want me to deal with that. These are people with children, who actually need to know that they are being given a proper resolution. It is all too hard, and I have given $900 worth of my time, and I’m out of here.” That is what that will mean. That is what that will do.

This is not about resolving family disputes in the spirit of proper mediation and resolution and conciliation—even reconciliation, if possible. This is an economic transaction. Couples will be forced into it because this is mandatory, and there will be no way out. It is the facilitator who can decide when they have had enough—when they have had $900 worth. That is the insidious thing about it, and it goes on, of course, in clause 60B(9). That clause says “An FDR provider”—once again, the indefinite article wrong; it should be “A”—“cannot be required to attend court to explain” their opinion about why it should all come to an end. So they have absolute carte blanche control, and they are not called to account. There is no accountability around the appointment of them. There is no accountability around their decision to terminate a mediation process.

What sort of process is this? It is a moneymaking scheme for those who get accredited by the Secretary for Justice, and, unfortunately, the track record of this Government in looking after its mates when it comes to these sorts of things gives me no reassurance at all that we are going to have a quality system of family dispute resolution. This is the shameful part of it—this is the shameful part of it.

We are concerned about this process. This is a process that will be compulsory for couples. There is very little accountability around it. They are expected, according to our Marjorie Proops Minister, to be totally rational, to be totally sensible, to be in full grip of their faculties, and to resolve the most difficult and the most emotional dispute that any couple, any person, would ever get into—the separation of their marriage or their partnership. That is an impossible ask. And then we are going to put in place these people who are not equipped to give legal advice but will be asking couples to make decisions that will have a significant legal effect and a huge impact, not only on them but on any children of the partnership or the marriage. And couples are expected to do that in a process in which those mediators, those facilitators, have no accountability at all—and they are expected to stump up $900 to boot.

Part of the process of agreement can be that a mediator, if they do get to the end of resolving the dispute, can order how much of that $900 can be apportioned between the couple. This is not a recipe for finding a resolution. This is a recipe for disaster. This is the distressing thing about it. Actually, what I predict we will see is that more couples will find a reason to get before a judge, because people want to know that they are dealing with somebody who is not only independent, dispassionate, and understands these things and has a background in it but also understands the legal impact of what they are doing—because the facilitators will not have that.

The Minister’s regime, under this bill, is to deprive people of legal advice. Those who need legal aid—and we will come on to that in a later section of this bill, because that is being whittled back as well—will get very little legal aid and assistance before they get into this process and none while they are in it. This is setting us up for a regime of failure, despondency, despair, and, I would say, more use of the Family Court and judicial resources than we have ever seen before. That is the failure of this bill. It is a disgrace, and that is why we are opposed to it.

Far be it from me to sit back and be lectured on peace breaking out, by a member of the Labour Party. Andrew Little, by the way, has used his 10 minutes to do nothing other than to insult, to insinuate, and to show why he is likely now to be the second justice spokesperson, about to be followed by the third, in the Labour Party whom I have had to deal with in the last 2 years. Let us just give him some facts. It is not at all abnormal, Mr Little, for people involved in matrimonial disputes or family disputes to reach agreement regarding their children without going to court. If we listen to Mr Little, we will hear that it is absolutely ridiculous—and he went on to call me all sorts of insulting names—to think that people should put their children first. Actually, that is just not true. Only 20-odd years’ experience in the real world, in legal practice, tells me that it is absolutely normal and usual for people to arrange these situations and resolve them themselves. What is abnormal is rushing into court to talk about where a child is going to spend Christmas or a weekend. That is abnormal. But if you listen to Mr Little, you would think that that is the normal behaviour, and what is abnormal is expecting loving parents to put their child first. That is a very, very dim view of the world that Mr Little has, and I have to say that if I was sitting on the backbenches of the Labour Party at the moment, I would be feeling a bit dim, too. But there you go. Mr Little does, so I forgive him those awful insults, because I am that sort of a person. But I am sure he knows that he will get it back double one day.

💬 Chris Auchinvole: Forgiving.

And forgiving. I can see Phil Goff wants to be forgiving too.

The other issue that Mr Little raised was the issue of accountability. He said that the Secretary for Justice could appoint anybody whom he wanted to have the role of a family dispute resolution service provider. He went on to say, essentially, that I, as the Minister, should be making those appointments—that I should be accountable for that. He said that on that basis, then, I could appoint anybody I like. But what he has failed to recognise—and if he only turned up to the Justice and Electoral Committee a bit more often, he might know this—is that there is, in fact, a select committee process around the estimates, around the financial review, where the Secretary for Justice is, in fact, absolutely accountable to members of Parliament and to members on that select committee, and can, in fact, be questioned about that. At the same time there is this thing called written questions, where Mr Little could write to me about this issue if he was so concerned about the appointment of a provider. And there is this other thing, which he is not allowed to use at the moment, and that is oral questions to me about this issue if he is so concerned about someone being provided with a contract that they should not have. Well, quite clearly, we want to be able to leave the Secretary for Justice the ability to use his or her discretion to get the best providers of this service. The last thing that I want to see as the Minister is to have the Secretary for Justice tied up in judicial review from disappointed providers of services who do not get what they want. I want all the money in this area going to the people who need it, the people trying to use the services.

There is another thing that Mr Little could use, and that is this thing called an Official Information Act request. He could use that, too, but it is not for me to tell him how to do that. He should get advice from his new senior whip, who, I am sure, will be able to help him. She is doing a much better job in ACC these days than he ever did.

But, anyway, the critical element in family dispute resolution is something that actually says: “Let us create a system that provides a faster, less adversarial resolution of parenting issues.”, because for most people this is what they want. Most people do not want to spend years in court, going in and out of court, regarding their children’s issues. But Mr Little has also said that some people will not be able to access this because of various reasons. I think it is very important to note that under the Family Court Proceedings Reform Bill—and the question that was asked in the previous part by Mr Faafoi was about violence and how people would be able to access the courts, and I would suggest that he reads the bill, too—if there is an accusation of violence or any evidence of violence, which, of course, also involves the economic violence that we have now brought into the definition of domestic violence, then this issue will be fast tracked. Mr Little has also raised an issue that people will claim domestic violence or might make claims on this to get into court before a judge. Well, under the bill as amended in Supplementary Order Paper 349, a judge will be able to, if they see any evidence of the courts being misused in this way, get that matter back into the family dispute resolution service.

I believe it is absolutely crucial that we enable people to make good decisions. It is all very well to say that people are upset, and, yes, they are—yes, they are—but, ultimately, most people already resolve these issues themselves, the vast majority. But I have certainly seen instances where people have been encouraged in a family dispute issue into court when the best thing for both of those people and their children is for them to be able to sit down with somebody who is absolutely neutral to help them to resolve the issues. That is where people’s focus and their attention should be—on their children and how to resolve these issues.

Only people appointed as family dispute resolution providers by an approved dispute resolution organisation or the Secretary for Justice will be able to provide family dispute resolution. So it is not the Secretary for Justice just sitting there deciding this person and that person; it is actually an approved provider. The Government Supplementary Order Paper 349 sets out what will happen to family dispute resolution providers when their dispute resolution organisation’s approval is suspended or cancelled. Where a dispute resolution organisation is suspended, the organisation will continue to be responsible for its current family dispute resolution providers, and the family dispute resolution providers will continue to be recognised.

Part 3 defines the duties of a family dispute resolution provider. Part 3 also provides for a number of regulation-making powers. Dispute resolution organisations will be approved in accordance with criteria, which Mr Little has forgotten, set out in regulations that still need to come into force. So it is not that there will not be criteria, but the criteria will be in regulations. I think that is a very sensible thing because we know it takes a long time for legislation to come through the House and it may be that the criteria need to be changed more quickly to better suit the circumstances of what we have found. So there will be criteria. It is not willy-nilly as Mr Little says. But if he was at the select committee a bit more often, he would know. In fact, they will be set in regulations, and if he wants me to let him know what they are, I am sure I will because I am just that sort of person, really.

The suspension or cancellation of approval must also be in line with grounds set out in those regulations, and, likewise, regulations will outline the qualification and competency requirements for family dispute resolution providers and the matters that disqualify a person from being appointed as a family dispute resolution provider. So all of the talk that we have heard this afternoon about how it is just going to the Secretary for Justice willy-nilly appointing anybody whom he wants with no accountability is utter rubbish, Mr Little. Read the bill. Read the amendments.

💬 Andrew Little: Thank you, Marjorie Proops.

Where the family dispute resolution provider—well, Mr Little wants to call me whom? Marjorie somebody? No, my name is Judith Collins, Mr Little. But, anyway, having said that, he is into insults. Where the family dispute resolution provider determines it is inappropriate to start or continue family dispute resolution, it will provide the parties with a form stating its opinion as to why family dispute resolution is inappropriate. It may be inappropriate because the parties are unable to take part effectively or because at least one party or the child has been subjected to domestic violence by the other party. Family dispute resolution may also be inappropriate because one party refused to attend or continue family dispute resolution, and that is absolutely crucial. We cannot have one party holding up the other or holding up resolution of these matters for their children. Thank you.

Thank you, Minister of Justice, for another friendly engagement! I really find it outrageous, though, that the Minister would claim that it is inappropriate for an Opposition spokesperson to use the Committee stage to ask questions of the Minister in the chair. That is the purpose of this stage of proceedings, yet the Minister instead chose to stand up and rattle off all of the other ways that the Opposition spokesperson could ask questions of the Minister. That is why the Minister is here at this point of the proceedings. I would have hoped that we would have an answer to the really reasonable questions that the spokesperson Andrew Little asked of the Minister in the chair. I do not feel that she fully addressed those questions. I am likely to raise them again because the notion that simply asking a question of the Minister through written questions will produce an answer is also a bit of a misnomer. I have asked questions of that Minister in writing. It is rare that you get anything other than a sarcastic response back. To get anything of substance is quite a challenge, as the Minister has once again proved from the chair.

I think we have lost sight of the fact that Part 3 of the Family Court Proceedings Reform Bill is not just about setting out a new dispute resolution process. Part 3 is a fundamental shift away from the notion that the State does play a role in assisting people to resolve disputes when they reach a certain point. The Minister seemed to imply that every couple with children that has a dispute ends up in the Family Court and that that is what she is trying to prevent. Of course they do not—of course they do not. But there are a number of situations where things escalate to a point where they are unable to be resolved even through the kinds of mechanisms that she is proposing as a first stage. But they are not really a first stage; they are a blockage to resolution—a costly, costly barrier to access to justice, to access to a service that previously the State has always acknowledged that it plays a role in.

The Minister’s implication that anyone who ends up in the Family Court somehow does not have the best interests of their child at heart does not seem to acknowledge the fact that that is why they have a dispute. They have differing views about what is in the best interests of the child. That is often why they end up there.

Rather than actually enforcing the one voice that should be stronger, the voice of the child, that voice in this process is actually weakened. We have seen a change in the way that lawyer for child is used in this process, and yet my understanding is that many of the submissions pointed out that the best advocate through this process often was that voice, or, indeed, the voice of the child. I want to reflect on that as I go through some of the elements of Part 3 and the way that the dispute resolution organisations are structured, which ultimately undermines that voice. As I have said, this is a departure from the practice we have already had in New Zealand. We had a specialist Family Court established more than 30 years ago for the purpose of addressing that there are some disputes that simply cannot be resolved effectively without it.

Of course, there will be changes over time, and it is important that we reflect on whether or not our court is working efficiently and effectively. It is fair to say that Peter Boshier, for instance, has talked about some of the delays in the Family Court. In fact, when the Justice and Electoral Committee carried out a review—I believe it was last term—into child offending, it found that one of the causes of significant delay is often the role of Child, Youth and Family in the Family Court. Constant change of practitioners and not fulfilling the requirements set down by the Family Court on behalf of Child, Youth and Family are the kinds of things that actually are causing the delays in the Family Court. Instead, the Minister has decided to upset this part of the process. It seems that some of the causes of delay have not been fully explored. There has not been enough evidence and advice sitting around that. Instead, we have gone straight to this part of the Family Court process.

One of the issues that we in Labour have raised, of course, is that bringing in this family dispute resolution process is not necessarily going to improve access to justice—in fact, there is a $900 cost. I would not mind hearing more discussion about this, because I was not a member of the select committee. Is it a confirmed cost? Is it likely that that cost would change? It strikes me as something that could escalate quite easily. Are there any regulations to set down that that can be capped? Will the Regulations Review Committee have any role in overseeing the levy that is set, or will that be set by the Secretary for Justice? Are there parameters around the way that levy is set?

I would not mind hearing from the Minister in the chair as to the parameters that sit around that compulsory fee for the private process to resolve disputes. The Minister raised that she sees cases where, for instance, there are issues around where a child will spend Christmas being escalated to the Family Court. There are some parents who certainly can use orders as a bit of a weapon in that way. Are you sure, Minister, that they will not use every time, as an alternative form of weapon, the fact that this cost will be prohibitive for the other partner to access this dispute resolution? That, therefore, needs to be resolved. I certainly know of parents who will not be able to afford this process—not just once, but the multiple times they would potentially be required to go through it. That is something I would like to hear the Minister’s view on—the clear access to justice issues.

I want to come specifically to subclauses 56(a) and (b), which set out the requirements for the family dispute resolution process and the provider. It says that their two primary purposes are “(a) assisting parties to a family dispute to resolve the dispute without having to pursue court proceedings; and (b) ensuring that the parties’ first and paramount consideration in reaching a resolution is the welfare and best interests of the children”. I want to know from the Minister, if it is up to the Secretary for Justice to define who will undertake these services, what requirements there will be for those services to have an understanding of child well-being, to have a background in this kind of resolution process, and specifically to have the kind of expertise and specialist knowledge that parents were previously accessing through this process. The Minister shakes her head, but I think it is a fair question to ask. If it is in almost a purpose clause, how will the Minister ensure that that is being enacted when she refuses to give us any criteria around what these providers will look like, or any detail whatsoever on what her expectations are for what will become the very, very critical service that sits in front of the Family Court process? Also, what right of review will there be if there is an unfavourable process and people feel that the provider has not acted in a way that is appropriate or provided the kind of service that it is expected to provide for the $900 that a parent is paying for that service? Is there any alternative system that they can access to raise those concerns?

I also want to come to subclause 60B(5). It says: “Subsection (6) applies when a family dispute resolution provider decides that a family dispute with which the provider is dealing is unable to be resolved within a reasonable time.” So, of course, that is setting out the parameters when you might see an escalation of that family dispute process, when it might move on from being dealt with by that private provider. I would like to know whether or not the select committee or, indeed, the Minister has a view on what a reasonable time is. If, indeed, as the Minister claims, this is all about resolving disputes in a timely fashion earlier and with less cost to the Crown—because it is not about less cost to families, that is for sure—then what is a reasonable amount of time? What is considered to be reasonable in that context? Did the committee discuss parameters? Will those providers be contracted to provide the service within that reasonable amount of time? Because this is also about access, I wonder what the time limits for those waiting lists might look like for those private providers, how quickly they might need to move through those, just what the expectation of the Minister is generally, and whether she believes that this will improve the system. Surely she has in her own mind some expectations over what that would look like.

I would invite the Minister in the chair to answer what I think are some reasonable questions, rather than delaying our ability to have a full debate on this topic by instead asking members to access a process that she knows full well she does not respond to properly.

I am happy to take a call on this Part 3 of the Family Court Proceedings Reform Bill, especially, in particular, where Miss Ardern talked about wanting to be informed, as she was not part of the Justice and Electoral Committee. Those of us who were heard submissions, and I can talk about the family dispute resolution process. In particular, I want to acknowledge the Hon Lianne Dalziel, who was part of that. We had a good working relationship. I think we worked well in hearing the submissions and working through, and I think we actually came to a good resolution here.

I want to talk, in particular, about how Miss Ardern talked about the voice of the children. Well, in actual fact, if she had read the back part of the story and if she had been part of the select committee, she would have known that Parenting through Separation, which is the parenting programme, absolutely focuses, in particular, on ensuring that the voice of the children is heard. But I also want to remind her that she may not have read the back part of the story, and I can understand that because she is only reading off the speech notes that she has been given. She was not part of the select committee.

So here is the thing. I just want to inform her that in response to serious concerns raised by the court users, which included the public, the judges, the lawyers, and counsellors, Cabinet directed a review of the court in 2011. Here are some of the key issues that were found. The review found that in addition to the concerns about rapidly rising costs, the court lacked sufficient focus on meeting the needs of children and on achieving sustainable, durable outcomes for families. This, in particular, Miss Ardern, is the focus of the bill. It found that the court was adversarial, placing additional stress on already strained relationships. It was negative for children and not focused enough on the serious cases, spent too much time on simple matters, and was too complex, and this is the essence of this review and, in particular, this bill, as well.

I want to focus on the family dispute resolution process. What I think, in particular, is that this bill establishes a family dispute resolution process that particularly focuses the family justice system towards supporting people to resolve their disputes. It has been unfair—the concerns that have been raised that there is a lack of concern for the needs of the children. In fact, this bill does that. It talks about this.

I want to pick up on the point around the providers. Mr Little made, I think, some unfair comments when he was actually there at the select committee. We heard from providers. We had a New Zealand mediation services association come. It talked about its experience, its expertise, and said that good mediation truly does make a difference. Again, all the evidence shows us that in this case we can ensure that families do not need to go through this, and, as we are saying in this bill, it is not for all people. But where there are some who can actually move out of the court process, then, absolutely, the family dispute resolution process can be very beneficial to them, as well. We are hearing from officials that there are around about 4,000 court applications, and roughly around about 2,000 children, in particular, who could benefit from this.

I want to also pick up some comments around the issue for family dispute resolution providers. The family dispute resolution providers are very clear that they will be expected to screen parties for safety risks. I know from the Green members that there was some concern about the issue around family violence. We want to ensure that the power imbalances or inability to participate due to illness or disability will be screened and will be picked up, as well. Where the family dispute resolution is unsuitable or unsuccessful for people, they will still be able to access the court system to resolve their disputes.

I also want to pick up that the family dispute resolution will be subsidised for those who meet the financial eligibility threshold. There was some concern that they would not be able to access this. That is not true at all. In fact, it is really clear that where they are unable to meet the financial eligibility threshold, they will be subsidised in this concern, as well. For others, the cost of the family dispute resolution is likely to be lower than the cost of employing a lawyer and making an application to the court.

We think that the family dispute resolution process is a good process. We think that it is not only a process that will help support children and families but, in particular, this process will be beneficial for the Family Court system.

Members, the Committee of the whole House is suspended for the valedictory speech. The Committee will resume at 7.30 p.m.

Debate interrupted.

House resumed.