Family Court Proceedings Reform Bill

Part 3 of the Family Court Proceedings Reform Bill as introduced was the amendment to the Family Courts Act 1980, which becomes the Family Dispute Resolution Act, or some such thing.

Just before I start on Part 3 of the bill, could I acknowledge the valedictory speech from the Hon Lianne Dalziel, which I thought was a very fine speech. Our loss will be Christchurch’s gain if she is successful in her bid for the mayoralty. I thought it was a very fine speech, and we will miss her expertise, particularly in the area that we are talking about now, which is the area of the law.

Coming back to Part 3 of the bill, I want to pick up some of the comments that the Minister of Justice has made. The Minister boasted that this is all going to be fine because she has 20 years as a practising lawyer. I think she was comparing herself with my colleague the Labour spokesperson on justice. I wonder whether she would compare herself with the people whom her predecessor, the Hon Simon Power, put on the expert reference group. I look at the people who have made submissions on this bill and are particularly opposed to this part of the bill—people like Professor Fred Seymour and Dr Suzanne Blackwell. They have both been clinical psychologists for over 30 years, dealing with Family Court matters. You had Antony Mahon—again, a barrister working in family law and an expert in the area, with 30 years’ experience. There is Allan Cooke, another barrister working in South Auckland, with 30 years’ experience, and Sharyn Ōtene, a family law barrister with 17 years’ experience in the Family Court.

Why I raise that is that four of those five people were appointed by Simon Power on the basis of their expertise in the law, in family law, and in Family Court matters. When you appoint an expert reference group, you expect the Minister to listen to what that expert group says. Well, Minister, you have not listened, but listen now because this is what that group said in its submission on this bill. It said that the proposed reforms “are not based on empirical evidence”—not based on empirical evidence. I would like the Minister to take the next call and point to the empirical evidence on which this bill is based.

The submission said that this bill is “... contrary to extensive, existing evidence of best outcomes for families and children;”. Let me say that again to you, Minister: it is contrary to extensive, existing evidence of best outcomes for families and children. I would really like this Minister to take a call and explain why she is imposing a piece of legislation on this Committee that the experts in the area—acknowledged as experts because they were appointed by her predecessor—are saying is not based on facts, is not based on evidence, and they say worse than that, again.

The submission says that this “... will create a two-tiered family justice system ... [where] (i) the more vulnerable members of society will have limited access ... to assist them in the resolution of family disputes.” So it is not based on fact, it is not based on evidence, and it is going to create an unfair justice system when it comes to resolving disputes that have a huge impact on the lives of the children who are tied into it through no fault of their own.

The submission also says further that “it is entirely foreseeable that inequalities arising from gender, socio-economic status and ethnicity will become entrenched,”. I thought the idea of the justice system was that everybody was equal under the law and it did not matter whether you were rich or you were poor, because you had the same access to the services of justice and you could expect the same outcomes. And this, your own, expert reference group is saying that exactly the opposite will be the case.

I also heard the Minister in her address talking about this being about children. Minister, your own regulatory impact statement denies that this is about children, because that regulatory impact statement—let me recall this for you, too—produced by your department, says: “Given the overall”—this is the introductory paragraph—“Given the overall fiscal situation, urgent steps must be taken to lower the cost of the current justice system ...”. That is what this bill is about. It is about lowering the fiscal costs, regardless of the social and justice costs that that imposes on the children and the families who may be denied the services of this system.

And this is what the expert reference group says. It backs up what the regulatory impact statement says. It says: “The overriding fiscal imperative is evident throughout the Bill.” It goes on to say: “Such savings cannot be to an extent where the fundamental purpose of the Family Court is severely compromised.” So, Minister, I would like to hear from you as to why these people, with much more experience in a section of the law that you have only touched upon, are so fundamentally critical of every basic premise in this bill.

What worries me most of all is that this new family dispute resolution service, which will be compulsory for everybody, is going to be at a cost to the families of $900—$897, I am sorry. I am exaggerating. It is $897. I want you to tell us, Minister, how a family on a lowish income—but not so pathetically low that they are eligible for legal aid—is going to afford that cost, when they are already going through the financial stress of a marital breakup, where they are probably living in two homes now and having to spread the cost of that across the income that previously paid for one home, because that is going to produce financial hardship. But not for people on the Minister’s salary. She could manage it very readily. Maybe for the people at the very bottom, you know, with one child, if your income is under $32,000, you will not have to pay. But people who are the normal, average family battlers who will be on low to middle incomes will be struggling with the cost.

What worries me most of all, Minister, is that your own regulatory impact statement says that after they have been through this process, five-sixths of them will then have to go to the Family Court anyway. They will have to meet the cost of this service, at $900, and then they will have to pay the cost—minus the legal aid that you have taken away from so many of them—to go to the Family Court as well. So they are being hit twice.

The Minister’s other point was: “Oh, most people can just sort this out for themselves.” Well, you know, it is true that for a lot of people there will be an out-of-court resolution. That is there now. Minister, you must know that right now, under section 9 of the Family Proceedings Act, 85 percent of the parties reach a direct agreement by themselves or with counselling, under section 9. The people who can sort their problems out are sorting their problems out now, without the extra costs that you are imposing on them. But the other 15 percent are the 15 percent where the problems are deeply entrenched. What the experts say on this is that your proposal will make the situation worse, and will make it harder for those families. They will not be represented before the family dispute resolution service and they will not be represented in the Family Court when they get there, either. So if you have got an unequal relationship between the two partners, that will be exaggerated because the partner who is not equal in strength and resources to the other partner will be at a huge disadvantage.

What the expert reference group says here, Minister—you have not read it, obviously, so I will repeat it to you—is: “This fails to recognise that out of court resolution already occurs for the vast number of parents who separate whether by direct agreement between the parties or with the assistance of the section 9 counselling.” Those cases do not go to the Family Court, but it says: “The availability of the affordable and accessible pre-court dispute resolution process, with section 9 counselling, already provides the very tools to parents which are claimed to result from these reforms.” They have the mechanism to do so now, if the matter can be sorted out, without the cost being imposed on the parties, because part of the role of the legal system is to provide justice, whether it is in employment law, judicial law, family law, or civil cases. That is what our—

💬 Hon Christopher Finlayson: Judicial law!

The family cases. Let the Attorney-General, if he is so smart, take a call and explain why these people, who know far more than either the Attorney-General or the Minister of Justice, are wrong when they say that this legislation is fundamentally bad.

Thank you very much for the opportunity to speak to Part 3 of the Family Court Proceedings Reform Bill. I do want to point straight to clause 60A of the bill, which sets out the duties of family dispute resolution providers. In subclause (2) of clause 60A, it says “… the family dispute resolution provider must … (a) identify the matters in issue between the parties; and (b) facilitate discussion between the parties in respect of those matters; and (c) assist the parties to reach an agreement on the resolution of those matters that best serves the welfare and best interests of all children involved in the dispute.” On the face of it, you cannot have too much of a problem with that, but, as always with the National Party, the devil is in the detail.

To get to family dispute resolution, you have to pay, as Mr Goff says, $897. That is going to be very restrictive to many, many families, and certainly to a lot of families in my constituency of Mana. I just want to commend a number of the family law specialist lawyers who came to me almost instantly because of their concern around access to justice for families who could not afford it, when they found out that this piece of legislation was going to be introduced to this House. Those lawyers believe that this fee of close to $900 to go through this family dispute resolution service will be prohibitive for many families in Porirua, and that it will cause a lot of families who cannot afford to go through family dispute resolution to actually have more problems between the two parties involved—the issue being that if you cannot afford to go through family dispute resolution, the issues between those two parties will be left to fester and then things between those two parties could actually get worse. Those lawyers did point out that the system that is currently in place gives the two parties the ability to go to six court-funded counselling sessions. That was very, very valuable to those parties in making sure that they could, hopefully, come to some agreement before they get to the serious stages of negotiation around separation.

As Phil Goff mentioned in his speech, it is not necessarily the case that this Government wants to help families who are separating, by introducing this piece of legislation. It is actually looking at cutting costs within the court system to make sure that it can meet its needs. To look at some of the savings that the Government will find by moving to these family dispute resolution services and changing the system within Family Court proceedings, you only have to go to the regulatory impact statement where it does quantify some of the savings that will come about by introducing family dispute resolution services. On page 9 of the regulatory impact statement, one of the options that the advisers look at is repealing the existing obligations and replacing them with a focus on the court carrying out its primary function in a way that produces the best outcomes for children and vulnerable people. This is a recommended option from the advisers who put the regulatory impact statement together. It is revealed in that document that this will create a saving of close to $10 million, based on the 2010 and 2011 expenditure for all court-funded counselling. In black and white, that is what the real motivation of these changes is. As it says in clause 60A, family dispute resolutions may be being introduced for what would seem to be a good purpose, but the real motivation for setting up the family dispute resolution service is to cut costs. Another measure that will save costs, as pointed out in the regulatory impact statement, is to limit the number of those counselling sessions that I mentioned before, which currently is set at six to—it says here in the regulatory impact statement—an option of one or three. That will save up to $4 million based on current expenditure over the next 2 years.

We are very concerned about this family dispute resolution service and about the cost that it has set up, because it does create a situation where the have-nots cannot access a fair justice system when it comes to resolving family disputes. They cannot do that. That was a concern that was also held by the New Zealand Law Society. That is a society the opinion of which this Government does not seem to care about any more, because a lot of pieces of legislation have been through the House and the Law Society has given its frank opinion on that legislation, but this Government seems hell-bent on ignoring it. In a submission that the Law Society made on this bill when it was introduced, it had two very major concerns when it came to the family dispute resolution service. If I can just read from its submission: “Firstly, imposing a large fee puts a big barrier in front of those who want to resolve issues that they are unable to resolve themselves. Access to justice is a fundamental mark of a democratic and fair society. That access will be impeded in New Zealand by the fee.” So we do have the Law Society very concerned, along with the Labour Party, that this fee will restrict the access to justice of a lot of families who are not only going through financial hardship but also going through very tough times within their own families themselves.

The second concern that the Law Society had, and I am quoting again, is that “… requiring the parties to split the fee provides one party with the power to delay matters, control or even prevent the process by refusing to pay their half. FDR needs to be encouraged. Its strength is in early, negotiated settlement. Giving one party the ability to stifle the process by simply refusing to pay a fee is to deny the other the opportunity of resolving matters in a timely, child focused way.” So the fee that you need to pay to access the family dispute resolution service could actually be used as something against one party in a dispute within a family. I think that I would like to hear from the Minister of Justice about that concern that the Law Society has and, certainly, as to whether this could have the effect of making things worse within families. Certainly, I know that the local family lawyers in my area have concerns over that because they are going to be in plenty of situations where families will be accessing this service. As I said in a previous debate on another part of this legislation, where there is financial abuse going on in a situation, this concern from the Law Society could certainly come to fruition.

I do want to note some of the ardent opposition in Porirua to this bill. Catriona Doyle, a family lawyer in Porirua, moved very quickly to make sure that the Law Society, locally and nationally, spoke out very strongly against the changes that are in this bill, because they will restrict access to justice for families who cannot afford to access justice. We do not believe that is a good thing. As Mr Goff said, it is fine for people who can afford it, but it certainly does hamper the process for families who are not in a financial position to be able to access justice and the family dispute resolution service. On the face of it, clause 60A points out some very good things that family dispute resolution sets out to do, but in this legislation this Government is not really seeking to make things easier for families who cannot afford to access justice. At the moment, they can do so and it is cheap or free, and they do have access to six free counselling sessions, but under this legislation it makes access to justice much, much harder. It imposes close to a $900 fee on those families who want to enter into the family dispute resolution service, and it is my submission and also a submission of the Law Society—and I would like to hear from the Minister in the chair on this—that the fee to enter the family dispute resolution process could actually be making things worse for families, not better.

I move, That the question be now put.

I am pleased to take a short call on this part, Part 3, of the Family Court Proceedings Reform Bill. The argument of the Minister of Justice around Part 3 of the bill is based on this premise: that people should work out their problems themselves when it comes to separation and disputes around children. They should be able to do it themselves. In order to force that to happen, the Minister has come up with what really is a Draconian set of rules and changes to the current rules.

In fact, it has already been shown that there is a fundamental flaw in the Minister’s basic argument. Most people do work it out themselves. That is a fact. Any practitioner will tell you that, and most lawyers will tell you that. When separation occurs and when disputes occur, they actually work it out. So who are the ones, Minister, who end up in court? They are the ones where their cases are much more difficult, they are much more complex, and they require a lot more assistance, which is why they come to court. They do not come to court just for the hell of it; they come because they require the assistance of the court.

To take away the provisions that are there at the moment, which Part 3 does, is actually denying a fundamental right to our citizens, and that is to access justice. So at that point it becomes an access to justice question. It is a bit like many other areas where this Government has made it much more difficult for a section of our population to access services. Whether it is in social development or in a whole range of areas, a number of punitive laws have been passed by this Government that are punishing the most vulnerable, and the Government couches it in language that it is strengthening our families. Well, it is not. This will actually make it worse.

There is any amount of evidence that has been presented to the Justice and Electoral Committee, and in the documents that my colleagues have talked about, to show that this is a mistake, and yet the Minister has got it in her head that this is the only way to do this. One wonders why. One wonders why it is. What has the Minister got against her own former profession, which actually does want to provide and enable services to be offered to our most vulnerable?

Not only that but it is actually taking away from our most vulnerable the responsibility of the State to provide some assistance—in the end, it will probably be cheaper to do it that way—and imposing in its place an $875 cost to families to access counselling, to access the family dispute resolution service. What is the logic behind that? This becomes cheque-book access to services for those who are the most vulnerable. Why is the Minister doing it that way? Why is this Government so heartless in doing it in this particular way, and then going even further—making it a mandatory requirement? Before you can go any further, you actually have to go and access the service at your own cost.

The Minister has not explained to us the question proposed by this side of how the family dispute resolution service is going to decide that a case cannot be resolved in a short period of time or within a reasonable period of time. That is not defined either. This is all designed to make it a lot more difficult, and perhaps designed to save some money, and the figures have been quoted by my colleague Kris Faafoi.

Why is the Minister so heartless? Why is the Minister making it—[Interruption] Well, Minister, it is. The Minister should get up and say how some of these families are going to find $875 to get this service. And when it does not work out, they will have to go to court, and there is no access to legal aid at that point. They are on their own, and of those who separate, this is the most vulnerable group—the most difficult cases—and through these provisions the Minister is making it much more difficult for them to do so. It is not just my word; it is the words of all those who have presented. There have been no explanations from the Minister as to why it is being done in this particular way. Perhaps the Minister is simply trying to promote access to private family dispute resolution services. In a way, the prices are guaranteed. They have to use those; otherwise, they cannot go any further.

There is a lot with this series of provisions in Part 3 of the bill that, fundamentally, this side of the House is opposed to because there is a better way of doing it. There are much better ways of accepting this responsibility and providing a better service. What are the difficulties in this particular area, if it is not just costs? What has the Minister identified as a major problem in this particular area? It is only that ideology that people should care for themselves, and that if you separate, you must go and find solutions yourself.

What kind of solution is that? The Minister does not drive that and the Government does not drive that in other areas of problems, whether it is in the economy or whether it is in business, etc. The Government is very, very willing to use large dollops of public moneys. Tīwai Point is a case in point. And yet when it comes to our most vulnerable families, this Minister and the Minister for Social Development are making it much more difficult for our most vulnerable. Why is it, Minister? Is it because this group does not vote for that side of the House? Is it that? Or is it just some perverse—

💬 Andrew Little: Pleasure.

—pleasure that the Minister takes as an ex-lawyer. There is no logic. The Minister has not explained the logic.

We can conclude, then, at the end of it, and alongside a whole series of other laws that have been passed by this Government over the past 4½ years, that although the Government pretends to be pro-family, it is actually anti-family. Many, many laws have been passed by this Government that are actually anti-family, anti - keeping the family together, and anti - trying to give families assistance. The Government is simply saying: “The State has no responsibility. We’ve got to cut the welfare budget. We’ve got to cut Government spending.” And yet the other side of the equation is that others are advantaged.

This is what creates the unbalanced society that Labour Governments have to come and fix up, and we will. When in Government, this side will fix up these kinds of problems. Anybody who works in this field—any practitioner, counsellor, lawyer, and perhaps judge as well, if they are asked—will tell you that this particular set of provisions is not likely to work. Those whom I have spoken to say that this will simply make it worse. And yet here is a Minister who sits there and simply says that we have got it all wrong, that everybody is wrong, and that the Minister is right. Well, this side will not be supporting this bill, and when the time comes we will make the adjustments that need to be made. Thank you.

I move, That the question be now put.

I raise a point of order, Mr Chairperson. My understanding is that a closure motion must be put precisely, and I believe that that member started to take a call.

I found the manner in which the motion was put to be acceptable.