Family Court Proceedings Reform Bill

Well, I think this debate and this day will go down as a day of great disappointment for this House—that we have allowed to pass through, even to this very humble stage, a piece of legislation, the Family Court Proceedings Reform Bill, that has, as its sole purpose, the cutting of the State’s responsibility for fair family dispute resolution and the dispensation of justice in the family arena.

Everything about this legislation—the failure of the Minister of Justice to heed the advice of the expert reference group and the failure to hear the myriad of submissions that raised concerns, raised issues, and pointed out the risks associated with it—in spite all of that, we still have a piece of legislation that is going to deny a proper voice to those who need it most when they are at their most vulnerable: couples who are separating, particularly poor couples, and children of any couple, with children being the most vulnerable in these circumstances.

This legislation says that the State no longer regards itself as having responsibility in the interests of harmony, family peace, and community stability. We no longer have the responsibility to assist families to resolve their difficult issues and ensure that any separation and any dissolution of a marriage is done so in a dignified and sensible way that respects the rights of all parties.

This legislation is a giant leap that departs from that principle that we have had in place for the last 30 years, with a specialist court and a specialist jurisdiction that we have developed. That is the sad thing about it. So a more appropriate name, a name that more correctly reflects the objects or the real intent behind this bill, might be the “Family Justice Destruction Bill”, because that is what it is.

The Family Court will be there. It will be there in name only. There will be judges there and they will struggle to ensure that justice is done. They will rise to the occasion, to their professional standards and their professional calling, but they know—and this is why they came to the select committee—that measures such as putting in place a process that denies parties the right of representation and that denies those who cannot afford legal representation the right of access to legal aid can be only destructive. It is a process that denies children the right of a voice to be heard in that process. They know that that can be only destructive when it comes to dispensing justice in the family jurisdiction. That is what this legislation will do. No matter how we slice it or dice it, no matter how we cut it, there is no question about it, the fears that we have expressed and the fears that others have expressed before the Justice and Electoral Committee and more publicly are very real. They are very real.

When it comes to dealing with family disputes, we need a court and a system and a process that is sensitive and sympathetic, and we have had that. It might not have been perfect. The Minister is right, and I agree with her about this: there have been delays. There are some people who appear before the court who, because of their personality or for whatever reason, have made a real fist of it and have drawn proceedings out, making it difficult for their partner and perhaps for any children involved—we know that. But they are few and far between. There are very few cases that are that bad and that extreme. But we are, for the sake of changing the baby, tossing out the bathwater—I have completely mangled that metaphor. That is the disappointing thing about this bill.

I know that members opposite—members like Tau Henare, and Jonathan Young from New Plymouth, who has dealt with families in difficult situations—know this bill is wrong. They sit there and look, and they know that this is wrong but so far they have voted for it. That is the disappointing thing—that we know that the fears that have been expressed are very real.

This is not a good bill. The bill is wrongly titled. It needs a different title. The “Family Harmony Destruction Bill” might be an even better title than the first one I suggested. This bill will be very disappointing. We will come back and we will thrash this out to the bitter end. But let the record show that we spoke for families and for couples. We spoke for children and we spoke for justice because that is more important than anything.

The Labour spokesperson on justice, Andrew Little, is quite right that the title of the Family Court Proceedings Reform Bill simply does not reflect what this bill does. “Reform” suggests in the very use of that word that you take something with major problems and you improve it so that you get better outcomes. This bill is fundamentally dishonest in its claim, and so is the Minister of Justice in her claim that this is about making the justice system better for families.

The honest title of this bill would be the “Slash Justice to Make Savings Bill”. It is about cost cutting. The regulatory impact statement said that it is about cost cutting. The submissions to the Justice and Electoral Committee said that it is about cost cutting. The Minister got up and on one hand said: “It was all out of control and they were spending too much, but we’re not doing anything to harm the system.” Minister, you are cutting millions of dollars out of this system, and, as the regulatory impact statement in its honesty says, the only impact this bill will have is on those people who cannot afford to pay for their legal representation. That is the impact of it. The people who will be disadvantaged by this bill are those who will be denied legal aid—who will be denied legal representation in the process when they need it to create a balance that would not otherwise exist between them and the party they may be in conflict with.

This bill is about cutting representation for children. The amount of time that there will be representation of the child’s interest in court by counsel for the child will be cut back. This is about cutbacks for the most vulnerable—our children and those people who lack resources to represent themselves.

If the Minister was honest about this bill, she would acknowledge that the expert reference group that her predecessor set up was absolutely right when it summed up this about the bill: “If this Bill proceeds … the very fabric of the New Zealand family justice system will be destroyed.” Let me say that again for you, Minister: the very fabric of the New Zealand family justice system will be destroyed. Who said that? The expert reference group set up by National’s previous Minister of Justice, who perhaps had some sense of what the word “justice” means. This Minister does not.

This Minister is prepared to subordinate the principles, the goals, of justice to cutting money, because she says that the Government does not have the money to spend. But as this debate has proceeded, we have seen that the Government had money to spend when it came to subsidising Rio Tinto. It was no problem to give $30 million away to Rio Tinto so that you could get a bit more money for Meridian Energy if it does, indeed, get a bit more money. It was no problem to give it to Warner Bros. Give it another $16 million. It was no problem to give tax cuts to the wealthy. But it is a problem for this Government to provide the funding that will ensure justice for the vulnerable.

I want to know from the Minister how she can call this a reform bill when it makes the system worse. I want to know how the Minister can call this a reform bill when, as her regulatory impact statement shows, this was not based on proper evidence. It was not based on data. It was not based on piloting the system. Indeed, it was not even based on consulting with the very group that her predecessor set up to make sure they got it right. The ministry paper says that the bill aligns with the views of the expert reference group. The group is appalled at that statement. It says it was not consulted on the outcomes for the Family Court. This bill does not align with the group’s thinking. The people who have spent a lifetime on this, the people who were appointed to the reference group because they were the acknowledged experts and the pre-eminent people in the area of family law, say that this is a bad piece of legislation. The Minister gets up and crows that this is a reform bill. That is what the title says: “Reform”. There is a new meaning for the word “reform” in National’s lexicon. It means to make worse. That is what National means by “reform”.

The expert reference group says that this is not based on empirical evidence. It says that it is contrary to extensive existing evidence of the best outcomes for families and children. It says that it will create an unjust situation, a two-tiered family justice system, where the most vulnerable members of society have limited access to the services they need to assist them in the resolution of family disputes.

The bill is even going to cut out the psychological reports that will assist the court to find the best outcome for the children. That will save you money in the short term, Minister, but it will cost us in the long term, because those children affected by the breakdown of their family life will go through the next 10 or 20 years carrying the wounds and the scars and the traumas of that experience. But you think it is more important to save money so that you can give tax cuts to the rich. That is not reform, Minister; that is a step backwards. That is a denial of justice. That is wrong in anybody’s understanding and anybody’s language.

What it says in the expert reference group’s submission is that the bill will “prevent the resolution of unsatisfactory and unsafe domestic arrangements for parties and most significantly for children;”. This bill will not reform the system to make it better; it will “prevent the resolution of unsatisfactory and unsafe domestic arrangements”, most significantly for the children.

The group says that it will “create injustice and unfairness in the resolution of family disputes;”. What is a justice system about? It is meant to be about creating fairness, about seeing justice done, yet the experts say that this bill will create injustice, will create unfairness, and it will not remedy it. This is not a bill that will make the Family Court and the family justice system better; it is a bill that will make it worse, and make it worse for the people who are already the underdogs, who are already the most vulnerable, who are already likely to come out of this second-best—and the Minister proudly sits in the chair to ensure that that will happen. Shame on you, Minister.

This will not save money for the system. It will on the surface. It will save $12 million that you take out of the pockets of the hard-working battlers and strugglers who are trying to see a fair outcome from the breakdown of the family relationship. It will take the money out of their pockets to pay for legal assistance, and it will leave them without it.

The Law Society and the expert reference group say that it will “significantly increase costs for the Family Court.” It does not save time when you do not have legal representation for people who do not understand the legal system; it takes longer. The judges will be taking longer, struggling to try to see justice done, without a professional there to represent the parties in the dispute and without professional advice on what impact any outcome may have on the well-being of the children. That, again, is a disgrace.

It will create risks for parents by requiring parents to deal directly with ex-partners. We are not talking about the 85 percent who can resolve the situation themselves. They can do it under existing processes—85 percent of them do it. We are talking about the 15 percent where the differences are entrenched and where the damage is going to be greatest, unless you can help reconcile or bring those parties to an agreed settlement so that they can move on in their lives. The limits on the rights to legal representation will mean that people will have to deal with ex-partners with whom they are in fundamental conflict without assistance, negotiate the Family Court processes, and represent themselves. The judges and the lawyers say that that is unrealistic. It will have a detrimental effect on the parents, on the children, and on the efficient functioning of this court.

The honourable member Christopher Faafoi.

Taloha ni. Thank you very much. It sounds like my mother, telling me off.

The debate on clauses 1 and 2, when bills are debated in this Committee, is an opportunity from time to time for members of Parliament to have fun with the title of a bill. But I am not going to do that tonight because this bill, the Family Court Proceedings Reform Bill, is simply not funny. It is not funny that this Government, under the guise of making life easier for Kiwi families and protecting kids, is slashing millions of dollars out of the Family Court budget and has claimed it is going to make things better. It is simply not going to make things better. As my colleagues have said, it is going to make things much worse—not for those people who have plenty of money who might find themselves in the situation but, as the officials in their regulatory impact statement said, it is going to make life much worse for those low-income families who find themselves in the tricky position of separating.

As the regulatory impact statement says, on page 11 under the heading of reducing legal aid: “This option only affects those parties who because of their low income are eligible for legal aid.” So not everyone is going to be affected by this—not those who have lots. Those who have a bit will not be affected by this, but it is the people on low incomes who are very vulnerable in these situations, who are going to be the ones most adversely affected. We are going to find ourselves in a situation where those people, who probably are not well-equipped to represent themselves in the Family Court, are going to be asked to do that. We have already been told by many submitters, and had advice from the officials, that this could make things much worse and, in fact, could make situations within those families much, much more dangerous.

I have quoted, almost ad nauseam, from the submission from the Christchurch Family Court judges, but I just want to point this out to the Minister in the chair—and to those on the other side of the Chamber who have taken zero calls in this debate because they are so proud of this bill—“We are concerned that without the benefit of the moderating effects of the lawyers in these situations, there may well be an increase in violent behaviour by frustrated litigants.” So we have got ourselves into a situation here that those people who deal with these families every day, who deal with the issues that they see with these families who are breaking up, are saying that if you remove the legal representation that these people have available to them at the moment and the legal representation that they have for their children, the violence in the families could actually get worse.

Is this what this Government is after, with these reforms in this legislation? I am not sure that it is—I am not sure that it is. What it is after, though, is cutting costs—it is after cutting costs. And I guess you could say that the Minister has achieved that, but to what effect? The representation of the families is shot. We no longer have effective representation of children in our Family Court, and the access to justice for families who are in these situations is much, much harder.

Part of this bill refers to family dispute resolution. Much has been made of the cost that it is now going to impose upon families to access that. It is $897. To parliamentarians, that might not be a lot of money—

💬 Andrew Little: Hey?

—to some parliamentarians. But those families out there who are struggling on low incomes, whom the officials have talked about, are really going to struggle to get across that first hurdle. That cost is very restrictive for those low-income families. I have many low-income families in my electorate, and that is why I praise the efforts of the family lawyers who came to me almost instantly when this was mooted. It is going to be very restrictive on those families to access what in the past has been a service that has helped them get through a pretty tricky situation.

In the past they have had access to six free counselling sessions, so that it could prevent them from getting to the point where they may have to go to the court. They could sort things out before they got to that situation, but under this legislation that has gone. What they have to do is stump up close to $900 to get their foot in the door, to start resolving their dispute.

As the Law Commission said in its submission or its opinion on this bill, when it was introduced: “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.” And, by introducing this fee: “That access will be impeded in New Zealand ...”. So there we have it. The Law Commission is saying that those people who cannot afford this fee to start a family dispute resolution are going to be seriously impacted in terms of their access to justice.

The regulatory impact statement—I think it is the third or the fourth sentence—sets out that the Government wants to reduce costs and have a much more efficient and effective Family Court process. Well, you are certainly going to reduce the costs, but is it going to be more efficient and more effective? On this side of the Chamber, we do not think so.

The Law Commission asked itself the question of what should really happen then, and we agree with this statement wholeheartedly. It went on to say that “New Zealand families will benefit from the introduction of Family Dispute Resolution if it is presented as an accessible and equal opportunity. Charging people a large fee is a huge barrier.”

So, as I said at the beginning, I am not going to try to make up some funny title for this bill, because this simply is not a funny issue. This is going to impact on the daily lives of children and parents who are going through a pretty tough time, and who are probably on low incomes. It is all right if you have got money in your back pocket, but it is not going to be all right if you do not. It is not going to be OK if you do not.

I think the reason we have had no calls from the other side of the Chamber is that those members want this bill to go through very quickly and for no one to notice. Well, it is going to get noticed, OK, because there are family lawyers out in every community in New Zealand who hate this legislation. It is not because, as was proposed by the Minister, their legal bills or their salaries are going to go down. Some of these lawyers, or most of these lawyers, actually care about the families that they represent. They know that in many cases there are kids involved, and that what this Government is planning to introduce with this legislation will make their lives worse—not for everybody, but probably disproportionately for people who do not have enough money.

If that Government is OK with that, then pass the legislation. But we in the Opposition are going to fight this tooth and nail because we care about those people whom this Government has forgotten. It is quite happy to give money to big corporates, to the likes of Rio Tinto, the likes of Warner Bros—give them tens of millions of dollars. But it is going to nickel-and-dime people with kids who are going through relationship breakups, to save money in the Family Court. If you are OK with that, vote for it. But we are not OK with it on this side of the Chamber. In the communities where lots of these people cannot afford to access justice, this bill is going to make things worse for them. There is almost silence from the other side of the Chamber.

💬 Hon Member: He’s repeating himself. Repetitious.

Oh, now they start up. There is almost silence from that side. Not only do they know but they have been advised that this is going to make things worse. They have been advised that this is going to make things worse.

Those Family Court judges from Christchurch—[Interruption] Oh, those members on the Government side think it is funny. They think it is funny. Just put it in Hansard that they think this is funny. They think that reducing representation for families that are going through tough times—low-income families—is a funny issue. Put that in Hansard. There is no laughing now. But let it be known that we on this side of the Chamber fought this, and there will be a price to be paid. When things go haywire, when costs go up, when things get worse, as predicted by the Family Court judges and Kiwi families, that Government is responsible—that Government is responsible, not the Opposition. That Government is responsible. It has been warned that costs are going to go up and things will get worse with violence in families, and this Government has done it.

I move, That the Committee divide the bill into the Care of Children Amendment Bill (No 2), the Domestic Violence Amendment Bill (No 2), the Family Dispute Resolution Bill, the Legal Services Amendment Bill (No 2), the Child Support Amendment Bill (No 3), the Children, Young Persons, and Their Families Amendment Bill (No 2), the Family Courts Amendment Bill, the Family Proceedings Amendment Bill (No 2), the Property (Relationships) Amendment Bill (No 2), and the Protection of Personal and Property Rights Amendment Bill, pursuant to Supplementary Order Paper 350.