Family Court Proceedings Reform Bill

Part 4 of the Family Court Proceedings Reform Bill is a very brief part, but it is actually very powerful in its impact. I think that it is very important to draw the Committee’s attention to just what is going on here. This part severely limits access to legal aid for parties to Family Court proceedings. It is interesting to note the advice that was received about this matter—both the officials’ advice that was received and the advice from the expert reference group, which talked about this as well. By denying legal aid to parties who are required to participate in the mandatory family dispute resolution process, it effectively means that the parties, at least those who cannot afford their own counsel, will be unrepresented. They will be unrepresented.

I will come to submissions about legal aid shortly, but it is interesting to see what the advice of the regulatory impact statement was about the impact of this particular provision—the expectation of it. It was that by making legal aid unavailable to this sort of process, it will reduce the cost of legal aid for care of children cases, which are the bulk of those for which legal aid is granted, to the tune of $41.3 million over 3 years. Over $10 million a year will be saved in legal aid. I am sure there will be some Cabinet Ministers who would rub their hands together with glee, thinking they can save that sort of money. But the cost, as we would expect, is likely to be picked up elsewhere.

It is interesting to see what the expert reference group said about this lack of legal representation for both the partners who are in dispute and any children involved. The group talks about Family Court cases involving high stress for parties and that for a wide variety of reasons parties struggle to advocate for themselves, which is why they typically and traditionally have access to legal counsel throughout the process. This is not about the small amount of advice they can get access to before the mandatory family dispute resolution process, but actually about having advice throughout the process. When you are participating—whether it is in a mediation-type or facilitated-type process or in formal court proceedings—you are taking part in something that will have significant legal implications for you and, if you have got children, for your children for some time to come. So people rightly approach it cautiously and because they want advice on the implications for them and their children.

The expert reference group talked about the impact of this measure, which effectively denies legal advice when they need it most, and that is that there will be other direct and indirect costs to the public purse. It is likely that an additional administrative resource will be required, because if people are not sure about the agreements they are entering into or the points they are being asked to agree to and they cannot get advice, their best option is to kick it to the court and hope the court can fix it up and sort it out for them. There is going to be a greater call on the facilitators who are expected to be engaged in this process to start providing advice. They will be clear that they cannot provide legal advice, but they will be prevailed upon to do so, and that is going to bog things down as well.

But there is something else going on that I think is even more insidious, and that is what is happening to legal aid. Earlier this year this House passed amendments to the legal services legislation, including the Legal Services Amendment Act, which allowed the Legal Services Commissioner to impose interest on legal aid debt. That has not happened until now. Indeed, in many cases where legal aid has been given, at least in civil matters, there has been a charge or a caveat put on people’s real property, but now the Legal Services Commissioner has the power to impose interest on it.

And the Committee might like to know that the Legal Services Commissioner has been busily going around imposing interest on legal aid debt, particularly historical legal aid debt, in just the last couple of weeks. Letters have gone out to a large number of people telling them that they now owe money on their legal aid debt. People who have had a legal aid debt, in some cases for 12 years, and have never received a single piece of correspondence about it are now being told they have to pay interest on it.

This will continue to be an issue under this legislation. This will continue to be an issue under this legislation because if people cannot get advice in this mandatory process, they have to kick it off to have a judge sort it out, and that is the only basis on which they will get access to legal advice. They will have an incentive to do it, but they will now be subject to a further burden. Many people who have an existing legal aid debt are now being chased for it and, what is worse, they are being charged the usurious and extortionate rate of 8 percent. That is 8 percent interest on a grant of assistance to impecunious people, poor people, who need legal assistance at a time of great distress and difficulty for them. This Government now comes after them and says: “You’re going to pay a rate of interest that is several times the rate of inflation, that is more than you would pay on a first mortgage rate, and that is more than the 90-day bill rate.”

This is a way that the Government, through the Ministry of Justice, can fleece poor people and make money. That is what it is about. It will happen to people under this Family Court Proceedings Reform Bill, if this bill is passed in this form. Legal aid will be required because more people will seek to have their family disputes kicked off into a court process because that is the only way they are going to get access to legal advice in order to understand the legal implications of the agreement they are being asked to agree to. The Minister of Justice might like to answer just what her expectations are of the demand for legal aid and the cost to people now with this dreadful and insidious interest rate that is now being imposed on it. There is no reassurance in this bill that people are going to be treated fairly and properly over it. This change, the limiting of access to legal assistance and legal aid for this important process, a very important event in someone’s life, is, I think, an absolute shocker.

The expert advisory group went on to talk about depriving children tied up in these matters of counsel and legal advice, because that is what this bill does as well. Children will not even be represented in the family dispute resolution process. Previously, they would be and there would be assistance for them to do that. There will be no legal aid for children to get access to advice on the implications of any agreement for them, and that is a more horrifying prospect. It is in my view, as I have already said in this House, a breach of the United Nations Convention on the Rights of the Child, and it goes against the advice of the expert reference group. The very high-powered, highly qualified, highly experienced expert reference group has also lamented the bill for denying legal advice to children tied up in these events.

The group thinks that it is going to put children at risk because the court will not have independent information on the views of the child. The group points out that it is usually only after a lawyer has been appointed for a child that underlying issues, things that affect the children, are notified for the first time to the court. The truth is that the parents who are trying to do the best they can in their situation are focused on getting their situation sorted and their emotion stabilised. Of course they will want the best for their children or child, but their view about what that is will differ from the review of the other parent and, indeed, possibly of the children themselves.

So it is a bad day for this Committee if we go ahead and pass this provision that denies legal aid. Clause 71 of this bill denies legal aid not only to the parents of children going through a dissolution in this context but also to children themselves. It is a bad day for this Committee that we should be considering legislation like this. That is why we are opposed to it, and we are opposed to what is happening to legal aid generally.

Part 4 of the Family Court Proceedings Reform Bill is amendments to the Legal Services Act 2011, and the bill makes it very clear what the effect of this is. The effect of new section 7(3A) and (3B) in clause 71 is to limit the availability of legal aid in proceedings under the Care of Children Act 2004 in the Family Court. This is part of the guts of the bill, which says that we are going to stop lower-income people, who cannot afford to be represented, from getting justice in court. That is what this bill means.

It is really interesting reading what the regulatory impact statement says about this bill. Actually, my favourite sentence is this. You have got to listen to this, Minister—you will really appreciate it. It is: “This option only affects those parties who, because of their low income, are eligible for legal aid.” Yes. Is that not obvious, Minister? This part of the bill affects only those on low incomes, who cannot afford legal representation. If this Minister, on $250,000—a quarter of a million dollars—needs help, she will not need to worry about it. People who are really well off will do just fine, but the families who are struggling to have representation will be denied representation by this bill and by other pieces of legislation that you, Minister, have passed.

You know, it says here that the real justification for this is that family legal aid went up by 93 percent between 2006-07 and 2010-11. Do you know why it went up, Minister? Because, for the first time in 20 years, the rates of payment for legal aid were adjusted to bring them into line with the rate of inflation over the intervening period.

Legal aid is about ensuring justice for people who need to be represented, and this Minister says no. Why does she say no? It says why in the regulatory impact statement: “The fiscal constraints faced by government mean that there is not currently sufficient … funding”. Well, Minister, there was sufficient funding to pay the costs of Rio Tinto—$30 million. That was not a problem. Corporate welfare—no problem at all. Warner Bros—“Come in, yeah. Add another $16 million to the $40 million or $50 million you’re already getting in subsidies. No problem at all.”

Corporate welfare is OK, apparently, but allowing people to have the funds to have justice for themselves and their kids is the first target. Do you know why they are a target, Minister? Because they are vulnerable, because they cannot fight back, and because they cannot articulate their case. They cannot stand up for themselves. But Rio Tinto? Rio Tinto—yeah, well, it says: “Well, look, OK. We’ll keep on going, just until you can sell Meridian Energy, and then we’ll pull out anyway and the jobs will be gone. But in the meantime, yes, we’ll take $30 million of the taxpayer’s funds.”

That is not all, Minister, is it? You do not have the money, you say in this document, to fund legal aid for kids—you do not have the money. But you did have the money to give yourself a fat tax cut, and the Prime Minister probably walked away with $150,000 a year in tax cuts. There was no problem with the money there. No, the money was available, but if you get some struggling mum with her kids, trying to get justice in the Family Court—oh no, that is not a priority. That approach, I think, is absolutely appalling. It stinks. It stinks that we cannot provide justice for our kids, but we can provide tax cuts for the wealthiest people in New Zealand. Well, maybe they did not get quite that much, because most of them are not paying their share of taxes anyway.

It is about priorities. Politics is the language of priorities, and what you are telling the Committee, Minister, is that you do not have money to give legal aid to those who need it, but you do have money to look after the fat cats. It is as simple as that.

Look, your own regulatory impact statement made those comments. OK, it said that the opposing party may have a lawyer, as opposed to the party that cannot afford a lawyer: “This could lead to the represented party’s view being put more strongly and create or exacerbate power imbalances between the parties.” So the party who has got money will be able to push their case hard and effectively, and the party who is already disadvantaged because they do not have the resources will be pushed into a position where their case is not heard on equal terms. Everybody in the Chamber—you can tell from the National backbenchers with their heads down—knows that this is wrong. They know that this is fundamentally inequitable. It is unfair, it is unjust, and this National Government is doing it because it does not care about the people who cannot afford representation. It does not care about the kids already in emotional turmoil because their family has broken up and where their case cannot be put because there has been a cut in legal aid.

What this regulatory impact statement said was: “With no legal assistance for applying, some cases may not be considered by the Court that should be.” Minister, your own regulatory impact statement said that cases that should be considered by the court will not be considered, because there will be nobody there to raise those cases, to point out the injustice, and to ensure that a fair deal is done. That is not right.

It also said: “Some lawyers may not continue as legal aid providers, reducing the pool and quality of those available for other legal aid work.” We were worried, Minister, about the quality of legal aid work. There were reports on the quality of legal aid work, and by taking away the funding, the help that is available to people will be of an even lesser standard.

Let us have a look at what the Minister’s expert advisory committee said the risks of this would be: “Most Family Court cases involve high stress to parties and for a wide variety of reasons parties struggle to advocate for themselves in the legal process. The risk to vulnerable adults and children from a limited right to legal representation will be significant because in the absence of legal representation:”, and then it runs through about eight different factors. So, again, the expert group was telling you, and your own department was telling you, that this will result in injustice, and, Minister, you do not care, do you? You do not care. You will not even take a call to justify your action. Well, I think that you should do that, because this bill is about Robin Hood in reverse: taking money from the poor and giving it to the rich.

💬 David Bennett: You would know about Robin Hood.

David Bennett knows that. David Bennett knows how much of a tax cut he got on his income, albeit as an insignificant backbencher. He got thousands, but the people who need the money are being denied it.

It says here in the expert advisory committee’s response that there are “ ‘hidden’ risks in what may appear to otherwise be a straightforward case [that will not be identified]; … cases will be more, rather than less, adversarial;”. Minister, you were telling the Committee earlier this evening that this bill is about helping families. The experts have told you that by taking away legal representation there will be a more adversarial, rather than a less adversarial, position. The expert advisory committee said: “It will be more difficult to focus on the relevant factual and legal issues in cases and where there is risk for adults and children;”—more difficult to focus on the key things that should be before the court so that justice can be done, a fair settlement can be reached, and people can move on in their lives. This bill stands in the way of that.

It repeats: “The power imbalance between parties which [permeates] cases under this Act is more entrenched if parties do not have legal representation;”. What is it about that, Minister, that you simply do not understand? You increase the power imbalance in the cases where you are trying to find justice, and justice will be denied. “There will be great direct and indirect costs to the public purse”—the experts said—“and also to society generally, if there is a restriction on the right of a party to legal representation (and with it to a grant to legal aid for that representation) …”, and the legal aid, of course, is being taken away.

The expert advisory committee said: “There will be additional administrative resource required in Court registries to deal with enquiries by parties by phone and in person;”. So you will take away justice, but you will actually add to the cost of the courts. So despite the many savings—the $12 million a year of savings that you are lauding, with the price being kids getting a decent settlement because their parents can sort out their differences—those costs will be there anyway.

The expert advisory committee said: “Family Court Judges will need to spend longer on each case to identify the issues, risks and optimum outcomes;”. This will not speed up the court process; this will slow down the court process, and that will cost more money. We are spending more money but not getting justice. Why not just give them justice and allow the case to proceed in a swifter, more effective, and more efficient way?

The committee said: “There will be more final hearings because parties will not have had the assistance of a lawyer to assist in negotiation of a resolution;”. Everything about this bill is bad—

I have to say, I do not think that effort of abuse from the former leader of the Labour Party who took them to their historically lowest defeat, Mr Goff, is going to impress David Cunliffe one bit.

💬 Hon Phil Goff: Just stick to the issues.

He calls out to me to just stick to the issues. Well, I have just endured 10 minutes of unmitigated personal abuse from that man, and he tells me to stick to the issues. Well, for goodness’ sake. I am so sick of listening to that sanctimonious rubbish that he has been speaking for 10 years, when he was the worst Minister of Justice in 20 years. He is the man who oversaw the increase in the prison population from 5,000 when he came into office to 8,500 only 9 years later. It is an appalling record for a man who wants to now suddenly put himself on his white horse and say he is there for justice. No, he is not. He is hopeless. He always was; he still is.

Having said that—I think it is important to actually let him know what we all think about him—let us look at this Part 4. He has talked a lot tonight about the regulatory impact statement. Well, that is a good thing to talk about, except, of course, that was done before all of the changes that were put in by the Justice and Electoral Committee—all of the changes that the Government has agreed to. He talks about submissions from the expert panel, the advisory group. Actually, of course, that was before all of the changes that came through. Of course, what we now have is a bill, the Family Court Proceedings Reform Bill, that is very sensible, that goes right down the medium track, and that puts children first. Despite that member, I do not believe that we are here in Parliament to feather the nests of professionals; actually, we are here to help professionals do the right thing for people when needed.

Let us just look at what is happening in legal aid all around the world. I went and had a look at what is happening in family law in California. They have mediation. They have all matters going through mediation, even matters relating to domestic violence, which I just did not believe we should do. Having said that, they said to me that they have no legal aid assistance—no legal aid assistance—for family law matters. I actually do not think that is right.

💬 Hon Phil Goff: Oh, it’s the American model now, is it?

Mr Goff now says that that means I think that is a good idea—I have just said, Mr Goff, if you would only open your silly ears and listen to it, man. We now look at the UK. It has severely cut access to legal aid in Family Court matters because, just like us, it has seen what has happened to legal aid. That man Mr Goff oversaw a 70 percent increase in legal aid. This was, he said, all about adjusting fees. Actually, what it did do, Mr Goff, is it meant that a lot of people got hauled through court by their former partner because that partner now had something, a stick, to hit and beat that other partner with. That is not acceptable.

When he talks about the great legal issues, well, let me just ask him this: what great legal issues? Family Court law and the care of children are not great legal questions that need to be debated for hours and hours.

💬 Hon Phil Goff: The experts are wrong and the Minister is right, again. Typical arrogance.

What needs to be debated in every single case is what is in the best interests of the child—the best interests of the child. Mr Goff, you have had your say. I sat back and I listened to that abuse from you. Why do you not just take some facts for a change? But, of course, he cannot, because Phil Goff is a failed Labour Party leader, the worst Labour Party leader it ever had, and, frankly, I would have thought Phil Goff—

💬 Hon Phil Goff: What a hypocrite. Talking about personal abuse and dishing it out.

Oh, you big girl’s blouse, honestly! I say this to Phil Goff. Phil Goff, you could do with a bit of mediation in your Labour Party family at the moment. It might be helpful.

Having said that, let us stick to what the facts really are. Part 4 amends the Legal Services Act 2011 to redefine when eligible parties may apply for legal aid. What it does do is provide that parties can still apply for legal aid. I would like people to not remember anything Mr Goff said, because he was wrong. People still can have legal aid for a lawyer to act for them in international child abduction applications. They can also apply for legal aid when a court directs that. An application can be heard in conjunction with an application under another Act. An application proceeds to a hearing—oh, he did not tell us that, did he. Parties may be represented at a settlement conference. So, yes, legal aid is available for those who need it.

Eligible parties will be able to apply for legal aid for most without notice applications. If Mr Goff would only read the bill that he is so busy talking about—actually, mostly he was talking about me, frankly, to be perfectly fair—he would see that those are matters relating to violence, those are matters relating to urgency, and those are matters relating to issues where a child is at risk. They are all without notice applications, and for those applications legal aid will be available. Some without notice applications will not be eligible for legal aid, but the vast majority of them will. The ones where they are not eligible for legal aid are where only one applicant is affected—no one else is affected—where the matters are merely routine, or where the other party is dead or cannot be found. That seems pretty fair to me. It is pretty difficult to sue a dead person over care of children issues. Legal aid will also be available where a judge directs an application commenced on notice is to be proceeded without notice. Eligible parties will still be able to apply for legal aid when they want to consent to orders at a settlement conference. So they will, in fact, get the legal advice that we have been told tonight by the Labour Party they will not get before they agree to all sorts of things at the settlement conference. Yes, they will, and they have been advised by a judge to obtain the legal advice.

Finally, the Government’s Supplementary Order Paper 349 amends clause 71 to clarify that eligible parties cannot apply for legal aid for legal advice and assistance where they are proposing to commence or respond to Care of Children Act 2004 proceedings. The Government will be funding the legal support prior to the Care of Children Act proceedings outside of the legal aid budget. So they will still be funded.

Thank you very much for the opportunity to correct some of those matters—

💬 Andrew Little: One hour of advice.

Mr Little says “One hour of advice.” Actually, Mr Little, you talked about Parenting through Separation. You know this. You were on the select committee most of the time. Parenting through Separation—you have got the family dispute resolution service, which is a service that was absolutely widely promoted by the expert advisory panel. That is a point that has been completely ignored by the Labour Party tonight. Of course, there is also legal aid where it is needed. Judges will have far more authority and ability to deal with issues in a finite way, so that people are not consistently going back into court and relitigating the same issues time and time again, all to the detriment not only of themselves but of their children.

I am very happy that the other side is very happy that I am taking a call on Part 4 of the Family Court Proceedings Reform Bill. Just to respond to some of the performance from the Minister of Justice, because that is all it was—it was just a performance. Do not believe the hype from that Minister when she says that this bill is about the care and protection of kids. It is not about kids; it is about cutting costs—pure and simple. That is what this bill is about. The Minister said in her contribution that this bill is about kids, and that there will be fair representation for them, but the Christchurch Family Court judges in their submission to the Justice and Electoral Committee did not think so.

I would like to quote from their submission to the select committee about the representation of children. I quote from the Family Court lawyers representing children: “In fact, those lawyers representing children are the single most effective agency in the entire Court system in achieving solutions for children. They are mobile, intervene rapidly, are well trained and experienced in the field, gather information, give directive advice to parents, and have earned the confidence of parents.” The judges go on to say at the end of their submission: “They are the machinery which enable us to make safe and appropriate decisions for children. They are the eyes and ears of the Court. Without full participation, when needed, of the child’s lawyers, Judges will not be confident they can make decisions which keep children safe.” That is a submission from Family Court lawyers in Christchurch.

This bill is not primarily about the care of children; this is about the cutting of costs. As a number of my colleagues have already alluded to, in the regulatory impact statement, which the Minister referred to in her contribution, on page 11 on the financial implications of restricting the legal aid available to Family Court proceedings, it says that it will reduce “the cost of legal aid in care of children cases by $41.3 million over 3 years.” This will save $41.3 million over 3 years by restricting legal aid not to those who are rich but, as the regulatory impact statement says, this option affects only those parties who because of their low income are eligible for legal aid. That regulatory impact statement goes on to say about the impacts of this policy a couple of sentences later: “This could lead to the represented party’s view being put more strongly and create or exacerbate power imbalances between the parties.” So, basically, it is saying that there will be an imbalance in the representation between the parties in care of children cases and family dispute cases. I do not think that is a very good thing, and certainly the family lawyers in my patch do not think that is a good thing, either.

Another practical impact that the officials whom the Minister asked to give her advice said is a very simple thing is that “Some people may have difficulty completing the forms [when they are representing themselves], proceedings may take longer and a judge may feel he or she needs to see the parties in court more often.” So what we are having here is that although the Government says it wants to save $41.3 million over 3 years, we are going to have a false economy because the cases that come before the judges are going to be much more protracted and much more complicated, the Family Court system is going to get caught up in itself, and things are actually going to be more expensive by this Government wanting to cut costs.

There has been a lot of talk about self-representation and the inability of some parents to do it in an informed way. The Family Court judges from Christchurch had more to say on that. They say: “Many of our litigants are disempowered in their relationships, highly anxious, suffer personality disorders, are not fluent in English, or are consumed by anger or frustration in the context of the breakdown of their relationships. We are concerned that without the benefit of the moderating effects of their lawyers there may well be an increase in violent behaviour by frustrated litigants.” I think I have made this point already in a debate on an earlier part. What is going to happen is that by leaving parties to their own devices and not giving them the same access to legal aid that they may have or the counselling services that they may have, the issues between those parties end up getting worse.

I want to quote from that submission again: “We are concerned that without the benefit of the moderating effects of their lawyers there may well be an increase in violent behaviour by frustrated litigants.” So here we are with Christchurch Family Court judges warning the MPs on the select committee that if they leave this as it is, things may actually get worse in the homes of Kiwis out there. For the Minister to sit there in the chair and to take a call and say that this is actually going to make things easier or better for families is a complete farce, because we have got people who deal with this on a daily basis—they see the families; they know the issues—and they are warning us that if we leave this as it is, if we have people representing themselves, if we do not give them the fair access to legal aid that they have had in the past, if we are not going to give children the representation that they have had in the past, things could get worse. I do not think that we want to have that on our heads as parliamentarians.

Can I also look at some of the other options that officials looked at and gave advice to the Minister on around the restriction of legal aid. On page 12 of the very helpful regulatory impact statement, in the impacts, they also said, and this echoes what the judges in Christchurch said, about self-representation: “Judges are likely to spend more time on proceedings in which parties are not represented, including managing any power imbalances between the parties.” Again, we have got the officials who are advising the Minister and we have got judges who are dealing with these issues on a daily basis warning us that if we do not do something about this and the changes that this Government is going to introduce to cut costs—not to make the Family Court process any more effective or efficient but wanting to cut costs—things are actually going to get worse for the day-to-day running of the courts.

OK, that may make things worse for the day-to-day running of the courts, but what impact does that have in the homes, in the families, of the people who are involved here? We have got separations, a very difficult time for families. Tempers are high. We may have, as was mentioned in Part 2, some kind of financial abuse, some kind of physical abuse, that is also in the mix here. We have obviously got children, and when you do not have a level of representation that we have had in the past, that could make things much, much worse as the judges and the officials have warned the Minister of.

I just want to make this final point because the Minister in her submission in her last contribution to this bill said that this was not about cutting costs; this was about the care of children. To the Minister—all the people who are giving us advice and have submitted to the select committee say the complete opposite thing. They are saying that what you are trying to do is siloed, is about only cutting costs, and is going to make life much worse for families and the kids in those families if you go down this path. Not only will it make life more difficult for those families but you are going to exacerbate problems that already exist in the Family Court. Things are going to be much more protracted, cases are going to be much more protracted, and those cases are going to be much more complex.

So, in essence, what they are saying is that you are creating a bigger mess than you are trying to clean up. I would hope that the Minister might take that message, other than just cutting costs, and think about the families that are in play here, think about the access to justice that is in play here, and maybe she might want to make a contribution. Probably not. Maybe someone from the other side of the Chamber might want to make a contribution and tell us how that plays out for Kiwi families, because at the moment we have got a Minister in the chair who is saying that this is all about the care and protection of children, but all the evidence, even from the judges who are dealing with this daily, and her own officials, say this is about cutting costs. That is what this bill is about—cutting costs—not making life any easier for those families who are going through this very, very difficult time.

The question was put that the amendments set out on Supplementary Order Paper 349 in the name of the Hon Judith Collins to Part 4 be agreed to.