Family Court (Supporting Families in Court) Legislation Bill

I move, That the Family Court (Supporting Families in Court) Legislation Bill be now read a first time.

One of the provisions in this year’s Budget—actually, as part of the COVID recovery and response programme—is to improve the operation of the Family Court. Right now, we know there is a major problem: there is a significant backlog. We know that, since the reforms from the previous Government in 2014 of the Family Court, the number of without notice applications in Care of Children Act cases has gone from 30 percent of those applications to the court to now 70 percent. The changes in 2014 removed the right of a parent who’s going to the Family Court for a Care of Children Act case to have legal advice and assistance from the outset, but with one exception, and that is that you make a without notice application. In order to make a without notice application, you have to make allegations of a certain quality and kind to qualify for that. So that set of reforms in 2014 set up an incentive for parties to characterise their allegations against their former spouse or partner with whom they are separating, in order to get access to that legal advice and, at least, to legal aid for that.

This bill makes changes to two pieces of legislation. One is the Legal Services Act, which is the Act that governs the awarding of legal aid. It reinstates the right to legal aid for Family Court cases. The second is the Care of Children Act, which also puts a limitation on the right to legal aid—or, at least, legal representation—for those cases and reinstates the status quo ante, as at 2014, prior to the current statutory provisions being enacted.

It was interesting—if I was at my most charitable, and I am—that there were honourable objectives with the changes that the previous Government sought, and that is they were concerned about the rise of legal aid and concerned about the delays in the court. Indeed, the Hon Judith Collins, in her third reading speech, noted the cost of operating the Family Court was increasing at an unstainable rate, and then she said that the changes that were being enacted then, and have been in place since 2014, mean that parties “will be supported to navigate the court system independently for straightforward matters. Improved information services, a simplified three-track court system, and easy-to-use forms will be introduced.” In fact, the three-track court system has complicated things, and there were never easy-to-use forms; in fact, they’ve been revised and changed multiple times to try and make them easier, but they have become complicated and convoluted. The Hon Judith Collins said also at the time, “this legislation will reduce the stress on families and children because disputes will be settled more quickly and fewer cases will end up in court.” The reality is that the waiting time for the disposal of Care of Children Act cases has gone from, roughly, around 230 days at the time of the 2014 reforms to now 305 days on average. So it hasn’t had the intended effect.

The overwhelming feedback I get talking to parents who’ve been through the process, talking to the lawyers who have represented some of them, talking to others involved in the court, and through the correspondence that I—and, I suspect, pretty much every MP—have received is that that inability to get access to legal advice from the outset, to know what to expect, and to know what their respective rights are has been a big impediment to the more efficacious and efficient disposal of those cases. So this turns that around. There is a Budget amount that goes with it. The additional cost of the legal aid over a four-year period is just under $25 million. That tells you something too, because the expected saving of legal aid, when the reforms were put through originally, was meant to be considerably greater than that, but the reality is, with now 70 percent of Care of Children Act cases being without notice applications, legal aid has continued to be spent, but, actually, it’s not well spent, because the parties then just get into more of a log jam, it becomes more complicated, and the cost still is there.

So this will be better. Most importantly, it will be better for children, who ought to have certainty and stability about their living arrangements as soon as possible after mum and dad have separated. At the moment, the legal arrangements prevent that from happening. So this bill enables changes to happen. It’s accompanied by some additional spending not only of legal aid but also in having additional personnel in the Family Court registries to assist parties in cases to get access to not only the legal advice they need but, actually, the welfare support and other support that they need to navigate the process. There’s also a Budget amount to increase the payments to lawyers for children. There are some fantastic lawyers for children, but you get some basket cases as well, and we need to be doing everything we can to step up the quality of those who are meant to be the voice piece for children in these proceedings. It is an obligation on the State under the UN Convention on the Rights of the Child, and we fully intend to discharge our duties and obligations under that convention.

So this bill does those things. They’re very simple changes, but they are profound in their impact. And, on that basis, I commend the bill to the House.

Thank you, Madam Speaker. Firstly, can I just put on record that we feel that, while we’re under Budget urgency, in what has been one of the most significant Budgets, certainly in recent history for New Zealand—when Kiwis are emerging from a level 4 and level 3 lockdown and trying to actually catch up and understand what has happened to our country in the last eight weeks, with a thousand people going on the dole daily—we just do not feel that it’s appropriate to bring this sort of legislation in with a truncated process under urgency.

I just want to speak a little bit about the history of this. There were Family Court reforms done back in 2014. The intent of repealing this part of that reform was quite simply this: it was to try and keep kids out of the Family Court, and it was to give parents the ability to act in the best interests of the children and to go into mediation and not to have to require lawyers and entrenched positions to start to develop. It’s a shame that the intent of those law changes weren’t actually embraced by the system itself. In some ways, it was subverted by the opportunity to put these without notice applications to the judge. Of course, the judge still retained the discretion as to whether or not to process those without notice applications.

And now we’re in a situation where we’ve got one of the biggest fights in our lives as a nation, in terms of our economic recovery, and we’re trying to do that quickly, with as much focus as possible, and where it’s going to need a large amount of financial commitment from the Government. We’ve got a bill that’s diverting $25 million back into the Family Court system instead of actually just trying to make the system work, keep children out of court, allow the parents to use that mediation. Instead, now we’re resetting and going back to where we’ll say, “We need to pump $25 million back into our justice system to allow them to have access to legal aid.”

I can tell you now: I’m not someone that has always had enormous confidence in our legal aid system, because, unfortunately, when you’ve got a Government-funded system, it is open to abuse; it is open to not being used and applied properly. So when there’s a system change like this, you would hope that the system would respond to it and try and make it work the best way possible. In this case, sadly, it doesn’t appear to have been the case. I think that there’s always opportunities to be able to make tweaks and changes in terms of when any legislation is passed like this, but I am disappointed to see that this is, basically, a full reversal of what was a good policy with good intent, and that was fundamentally to keep children out of our court system. I’m not confident that $25 million will even cover this. I think that you’re going to see, basically, that option to mediate almost removed immediately as our legal system moves to respond and re-engage again with the money that’s being provided through the legal aid system.

So we just wanted to put on record that we don’t support this legislation for two reasons. One is that we don’t think that it should be used under Budget urgency. This actually should have gone through a full, proper process and be looked at and scrutinised properly. And, secondly, I think there’s going to be a perverse outcome, where, as a country, every dollar is going to matter in terms of directed, very targeted support around our economic recovery. Instead, we’re putting money back into a system whereby the only ones that are really going to benefit are the lawyers accessing the legal aid process, and we’re going to put kids straight back into court again. So, unfortunately, we can’t support this bill. Thank you.

Thanks, Madam Speaker. Just a few comments about this bill, which is to allow, thankfully, legal representation in all proceedings under the Care of Children Act, and relates directly to a Budget provision of nearly $25 million over four years, and is about restoring the rights to people to have access to legal advice from the very beginning of a Family Court process for parents and whānau in care of children disputes.

The thing that really stood out for me about the inequity in this is when, under Judith Collins’ reign as justice Minister, the previous National Government—and I use the word “reign” deliberately—removed, for fiscal reasons, the right to make use of legal representation and legal aid at the early stages of on-notice Care of Children Act proceedings of children if parents so choose. That removal of legal representation also created an incentive for parties to file applications without notice, because that meant that they could obtain a lawyer. Those applications were intended to provide a faster response in certain cases. The result was that those without-notice applications rose from 30 percent to 70 percent of Care of Children Act applications, which placed huge pressure on parents, the Family Court system, and, most of all, children. I had some experience of that myself personally, which I won’t go into, but can I just say—huge pressure within that system.

Thankfully, we have a Minister who has announced measures as part of this Budget, which are more than this, which will lead to more legislation, more equity within the court system, and, most importantly—and this is why this is urgent and important—will protect our children.

Kia ora, Madam Speaker. Can I just first open by saying that I think Chris Bishop looks fantastic today. I think he’s an exceptionally good-looking man, and his new presentation merely enhances what we already knew. I’m now going to move on to the bill.

I’m going to take a short call on behalf of New Zealand First in support of the bill. I do have to say how incredibly disappointed I am by the Opposition’s decision to not support the legislation. As the party of the day that actually created a Minister for Children and who understood and set in place legislation to better protect and better support those children who find themselves inside of families that are not working well—that was the National Party, that was the Hon Anne Tolley who had that vision and created the Ministry for Vulnerable Children and the Minister for Children.

The Hon Judith Collins, I believe, did what she did with regard to the changes to the Family Court because she believed they would work well for children. They have not. They have not worked well for children. And, when you speak to children, and the process that has been put into place, you would know that it has not worked. Sometimes we have to admit we got it wrong. Sometimes we have to admit that it’s not the system; that it’s the human beings inside the system. It’s a highly emotional time for families to go to Family Court. And, yes, we ask our parents to put their children first, but human beings are human beings, and there are moments when the adults cannot—do not—act like adults and the children get caught in the middle.

I am exceptionally disappointed by the National Party saying that they cannot support this because—and I’m going to be a little bit gracious—they believe that it’s the system that has not changed enough that has created the problem for the children. What relevance $25 million has got when we’re talking about our children, I do not know. I cannot think a better place to spend every single dollar we have in this country if not upon our children who find themselves in a situation where their mother and their father or whoever is caring for them are now tearing each other apart and need the court to intervene.

So I’m asking the National Party to reconsider. I know it’s a hard thing to do, but I’ve seen it done. I’m asking them to reconsider as this bill goes through. I understand it’s going through quickly, but let’s not take away from the intent of the Hon Judith Collins—let’s not take away from the intent. Let’s not make it about a slanging match. But let’s make this about the fact that it was a good idea that didn’t work. Let’s just say that, and that we have to undo it because the children—we’ve heard how it is affecting them. I can tell you the consequences that it has on the workload of Oranga Tamariki. I’m asking the National Party to reconsider their vote, but New Zealand First will support the legislation.

Thank you very much, Madam Speaker. Look, I hear the Hon—

💬 Hon Andrew Little: I thought it was Jordan Luck!

Ha! Great singer. Sadly not. I hear the Hon Tracey Martin’s comments, and I thank the Minister for her remarks in the House, not just for her compliments on my new do but also her remarks, I suppose, exorting the National Party to support this legislation. We won’t be doing that.

The first point to make is that the National Party is not opposed to sensible reform in this area, and I hear what the Minister says about this being a very tricky area, being emotionally complex and difficult for families to deal with, and, actually, the history of the reform in this area, over multiple Parliaments, actually, not just in this Parliament and the previous Parliament but going back through the 1990s, is of constant change, and that’s just a fact of life. The Parliament, I think, has struggled to find the appropriate legal regime to enable people to cope with family break-ups and the care of children and all of the emotional problems that that brings, or emotional baggage that that creates, in a way that is suitable for families but also for children. No Parliament, or no Government, can ever say that it’s got it right, and probably they never will be able to say that because of the nature of the area. But I think everyone approaches these things in good faith. The Minister of Justice in the last Parliament, the Hon Judith Collins, and then, latterly, the Hon Amy Adams certainly did that, and I know that the Minister Tracey Martin and the Minister of Justice, Andrew Little, are approaching things in the same way.

So let me just say at the start that the National Party is not opposed to sensible reform in this area, but the reason we are opposing this bill is that we do not believe, firstly, the case has been made for change, and certainly not—and this more important point—with this process. And I just ask three questions to the House, in my contribution, that I think the Government members speaking on this legislation need to answer. The first question is: what is urgent about this legislation? We’re in urgency. It’s a Friday, and it’s just ticked over 12 o’clock. What is so urgent about this legislation that the House has to sit in urgency to consider it? And members might say, “Well, you know, it’s very important we look after our children and give effect to the reforms that the Government wants to adopt.” But this has been something that’s been on the Government’s work programme for the last two and a bit years since the election. We’ve had the independent review, the independent panel, and we’ve had the recommendations. The Hon Andrew Little was sceptical in Opposition. So I accept that the Government wants to advance these changes. But what is urgent about it today, in this week in May 2020? I invite Government members to explain exactly what that is.

In terms of urgency, the current Government members used to say when the situation was reversed in the last Parliament and National was in Government, “What’s the rush? Where’s the haste? What’s the point? Why are we doing this so quickly?” And it’s not clear to me, and it’s not clear to my colleagues on this side, what is urgent about this legislation. Why could this not have been advanced in the last 2½ years, or at least last year or so, or indeed when the House returns next week? This, to me, looks suspiciously like the Government using the cloak of the Budget to advance legislation. And I’m not so cynical as to say that Governments don’t do that, but they need a good reason to do that. And it’s not clear to me that this is urgent.

My second point is: why no select committee process? Why no select committee process? We’re going through all stages. We’re going to wind up this afternoon, and tomorrow it will be law—or perhaps next Monday when the executive council sits and the Governor-General signs it into law. Why no select committee process? The Hon Tracey Martin actually, I think, undermined her argument in her contribution by quite rightly making the point that this is a very common—

💬 Hon Tim Macindoe: By admiring your hairstyle.

Well, she admired my hairstyle—business in the front, party in the back, Mr Macindoe, as you know. I know that Kieran McAnulty over there from the Wairarapa knows. This will be very popular in his neck of the woods.

So why no select committee process? The Hon Tracey Martin made a very good point, which is that this is a tricky area. It’s complex, and this is precisely, I put it to the House, the sort of area, the sort of reform, that you send to a committee to make sure you get it right. And I’ve got to tell you, you know, lawyers are pretty, you know—very interested. I was going to say they’re pretty concerned. The views will vary, but they’re pretty interested in this area. And this is precisely the sort of area of law that the Law Society and the family law section of the Law Society and others who practise in this field will want to submit on at the select committee, as well as those involved in mediation and negotiation and those fields. That’s precisely the sort of law reform they will want to submit on—and even for just a short period of time. I’m not someone who thinks that we need the full four or six months all the time. Sometimes it’s not a particularly big piece of reform. This, I understand, is the first stage, but sometimes you can send things for a wee amount of time. But to not send it to a select committee at all is, I think, something we need an explanation for, as to why that is. So far, we haven’t had any. It was never mentioned in the Minister’s speech, and it certainly wasn’t mentioned in Minister Tracey Martin’s speech. Why no select committee?

And the third point: why in the Budget? Why are we doing this under Budget urgency? So why under urgency altogether? Why no select committee? And why are we here on a Friday at Parliament putting this through all stages, after—the Minister of Finance’s own words—the biggest Budget in a generation, with a $50 billion fund for the Government to spend as we respond to COVID? We’re here on Friday afternoon putting through Family Court law reforms—they may be worthy; they may be not, but you’ve got to say it’s a little bit disjunctive with the sense of crisis around the economy. We’re making some changes to tobacco excise, and we’re making sure that the Remuneration Authority can cut our pay, and we’ve got some rinky-dink forestry scheme. That’s what the Government is putting us into urgency for. And you’ve got to wonder—I just put it to the House that the sense of priorities is a bit odd. It is a bit strange, and I think New Zealanders will judge the Government for that.

So we’re looking for answers to three questions. Why is this urgent, why is it not going to a select committee, and why is it being used as part of Budget urgency? And, until we get satisfactory answers to those questions, the National Party will be opposing it. Thank you, Madam Speaker.

Tēnā koe, Madam Speaker. Tēnā koutou e Te Whare. The Green Party is supporting this bill. It makes relatively small changes but they have large implications, and that is to reinstate legal representation in the early stages of the Care of Children Act proceedings with legal aid for eligible parties. My understanding is it’s going through as part of the Budget because there are concomitant Budget implications.

So the previous National Government, under the direction of then justice Minister Judith Collins, removed for fiscal reasons the right to make use of legal representation and legal aid in the early stages of on notice Care of Children Act proceedings if parents so choose. The result of the removal of legal representation and legal aid has restricted parties’ access to justice, particularly low-income parents and whānau. That’s meant longer resolution times for care of children disputes, parents and children being left in limbo for extended periods of time, and there are currently around 16,000 children subject to the Care of Children Act proceedings in the Family Court each year. So this really does affect a large number of children. This change, which the Green Party supports because it provides proper access to the Family Court, is important so that people can deal with family issues such as domestic violence, childcare, and relationship property. The consequences of reduced access have been that more parties have had to deal with an expensive and cumbersome family disputes resolution process before they could access the court, and may not have had a right to legal representation for some types of hearings.

So the Green Party is supporting this. I think it’ll be a positive change, and it’s one that needs to happen pretty quickly for the sake of those 16,000 children that have been left in limbo.

Kia ora, Madam Speaker and to members of the Government and members in the House. As is well-known, National is opposing this bill, but I stand as a member of Parliament—probably the only member of Parliament, actually—who’s worked and given a lifetime of service in the Family Court, advocating for and representing children, their parents, and the family members. I’ve been counsel who’s also worked in Child, Youth and Family, now Oranga Tamariki, having given service there for 10 years as a lawyer. I know the system.

I’ve given a lifetime of service working and advocating in the Family Court, advocating for our vulnerable, and what tends to get overlooked is the fact that the children—and this amendment is about the Care of Children Act. We’ve heard the Minister for Children talk about the children. I have spent a lifetime as a lawyer advocating and representing the interests of the children in Family Court proceedings. I am disappointed that this bill is being rushed through. I am disappointed for the children and for the people who rely on the Family Court to provide a quality service. I am disappointed because, as counsel who knows the system more thoroughly than anybody else in this House, in the Government, or in Parliament—just having this brought to my attention in the last 24 hours—I think it is regrettable that this is being rushed through. Our children deserve better.

In the short time that I had to prepare notes in relation to this—they’re here, but they’re a blur—I’m now speaking as a professional person, having given and dedicated my lifetime of service for our children. Minister Little, I heard you mention to the House that the system will be improved—I know the system; I know how it works—and that applications were made on a without notice basis because lawyers weren’t made available. If I and others had been given the time for this to go before a select committee, this bill, this amendment, could be vastly improved. From the documents that I’ve read, there has been no consideration factored into about what the philosophy of the Family Court is. It is about win-win. Advocacy of many lawyers who come into the Family Court jurisdiction—and I have practised in the criminal court jurisdiction—is about a win-lose for the parties, for the adults, and the child often gets left and forgotten in relation to that.

I have been counsel who has facilitated pre-settlement conferences—mediation conferences—before proceedings get into the court, and, as lawyer for child, I have also facilitated those conferences where parties may not have had legal counsel. That was my role. That was my duty, not only to the court but to the children. So what I’m putting to the House—and this is a done deal, and, sadly and regrettably, the ones who are getting done over here are the children and the Family Court system, because it could well have been vastly improved, Minister. What I put to the House, having worked in the criminal court jurisdiction, is that we have there the options of what’s called duty lawyers to help facilitate the system and the process, and the administration of law and people’s access to law. The amendment in this bill is about the adults’ and the parties’ entitlement to legal representation. Well, actually, the focus and the emphasis should be on adults’ responsibilities in terms of children’s welfare and best interests, and I know this full well.

I see also on the papers that I had limited opportunity and time to read through the independent panel advisers, a very dear professional colleague, now Judge La-Verne King, who—La-Verne and I advocated in the Family Court, in the Youth Court, in the criminal courts, and in the mental health courts. Judge King, as she is now, was an adviser to the Government by way of this panel. Now, I’m sure that—

💬 Hon Andrew Little: She was on the panel. She was a panel member.

She was on the panel, and I am sure that her views are very much premised on the expression and the opinion that I have, as well. However, I also know that my professional colleagues would prefer that this is not rushed through. The so-called process has been compromised. It’s not due, and the people who use the Family Court system are due that accord of a fair, thorough scrutiny and process.

The last point that I will make, because time is of the essence here—and it is a done deal, where this has been done over—is that, Minister, you talked about the process having been backlogged. I put it to you and to this House that having a duty lawyer system would assist and facilitate in the way that the criminal court jurisdiction has been facilitated by that. There is no, in my view, necessity for legal aid in position for counsel to be appointed at the earlier stages. That’s exactly what the criminal court process does by way of having a duty lawyer to be able to enhance the process and improve it. Also, part of the backlog was associated with the fact that there weren’t enough judges to deal with the demand. That has now been addressed by the Government, and I acknowledge the Government accordingly for doing so.

So, with this legislation that’s going to be passed through, rushed through, without the appropriate scrutiny and, I think, the opportunity to make it better, it is going to further compromise, and time will play out in evidence that there will continue to be prolonged proceedings in the court. I speak from almost 30 years’ experience, knowing full well that settlements that were reached and resolved—any proceedings being prolonged for years in the Family Court were well dealt with. I cannot support this bill. It may have been different had there been due process and opportunity to improve what is being rushed through the House today. Regrettably, I do not support this bill.