Family Court (Supporting Children in Court) Legislation Bill

Members, we come now to Part 2, and Part 2 is the debate on clauses 10 and 11, amendment to the Family Dispute Resolution Act 2013. The question is that Part 2 stand part. My apologies, let me announce the correct count to the last vote. The Ayes are 87, the Noes are 33. The Ayes have it.

Madam Chair. Part 2 essentially amends the family dispute resolution in order to give children who are subject to dispute resolution process the same opportunities to participate in decisions that affect them. Again, just reflecting some of our key messages from the debate during Part 1.

The panel that looked into the 2014 changes found that the system doesn’t necessarily recognise child participation and it is not widely recognised or valued. The panel also identified that there was limited participation by children in issues that affect them. There is a concern whether their views are obtained or considered when decisions are made. Again, I think, similar to the concerns in Part 1, in order to make this process as effective and efficient in reducing the harm that sometimes the system and delays in the system can have, making sure you have representation early in the system is important. Resolutions outside of the courtroom can mean that significant delays can be prevented. At the end of the day, those delays for the children, I think, can increase massive amounts of anxiety for them. So, again, these changes mirror the care of children process for the family dispute resolution process. Again, we look forward to being able to debate this as part of Part 2.

Thank you, Madam Chair. Obviously, Part 2 is a pretty small part, and my contribution in discussing it won’t be particularly large, either—just a couple of points regarding that amendment of section 11 within clause 11. What a beautiful alignment of clauses and section numbers tonight, Madam Chair; I sense your excitement almost matches mine.

The phrase that sort of leaps out at me a little bit is the “reasonable opportunities to participate in” decisions affecting a child. I’m quite pleased to see that the Justice Committee—for which I can take no credit; I was not a member—has talked about “reasonable opportunities”, plural. It seems to me that what’s indicated in that is an intent that the opportunities would be regarded as arising on an ongoing basis. So, hopefully, the intent is that the family dispute resolution (FDR) provider does not merely consider at the start of the process, or perhaps in “taking initial instructions”, in quote marks, or in having an initial briefing, but really regards the obligation, actually, to have an ongoing consideration of what the children might be given by way of opportunity or opportunities to participate in decisions. Of course, it’s an ongoing process—a lot of back and forth in these things, often. So that’s my first observation. Again, as in Part 1, I sort of offer it as a comment that Minister Faafoi’s obviously welcome to contradict, but, failing which, I would hope we can take that I’m on the right track and that the record will reflect accordingly that intent from the legislature as a whole.

A couple of other small points within that same section: one is that I see that the select committee has recommended a different form of wording than that which had been introduced into the House, presumably by the Minister, or perhaps a predecessor—I think the name the Hon Andrew Little was mentioned earlier. The select committee has steered away from a wording that talks about facilitating participation “to the extent … that the FDR provider considers appropriate”. I think they’ve made a fair swap with the alternate wording that they’ve provided there. What we’re going to end up with, I think, is a bit of give and a bit of take. So it’s a stronger obligation—instead of the FDR provider having merely to facilitate participation, they have to ensure that the children be given reasonable opportunities—but that’s qualified somewhat because the opportunities are as considered by the FDR provider to be appropriate. So a bit of give and take—I think they’ve landed in a pretty reasonable space there.

Then my final point, I think, in relation to that would be just to ask the Minister to give a bit of an explanation about the way that—I suppose it’s a reflection, really, with some sadness, that we’re talking about a situation where we’ve got the phrase “children who are the subject of the dispute”. There’s no way around it. I mean, that’s exactly what we’re talking about here. But I suppose I just wanted to reflect the fact that in a contested situation, in litigation, it’s a dispute and children are caught up in this. So, hopefully, the Minister would agree that the overall flavour and intent of the legislation would be to minimise the exposure of the children to the dispute and, without wanting to relitigate Part 1, just reflecting that the way that that can be achieved as best as possible, with more or less legal involvement, as the case may be, should be the aim of us all in this committee. So on that philosophical note, I will conclude my contribution on Part 2.

Again, thank you to the member Chris Penk. My understanding is that child participation in the family dispute resolution (FDR) process, as it stands, is quite ad hoc. So the inclusion of this bill does put somewhat of an obligation on, or encouragement of, their participation, again, in the interests of working in their best interests. I’d also note, as a last point to the member, the stocktake that I mentioned earlier, in terms of care of children processes and making sure that there are safe frameworks in order for that to happen, also applies to the FDR process, as well, to make sure—I think some of the submissions that were made about keeping children safe, especially in traumatic situations, apply in the FDR environment as well.

Thank you. Minister, further to the answer that you’ve just given around participation in the family dispute resolution (FDR) process, there is no qualification within the bill, and certainly not within the proposed clause 11(ba), the extent of what participation is. And, Minister, you may well, or you may well not, be conversant with the submissions made by the New Zealand Law Society on this point. So could there be further clarification around what participation is? Does it require the child to be physically present? Does it require other elements of participation? If so, please state that, because there will be difficulty not just for—and there is an issue about whether it should be the FDR provider or supplier, but around to what extent is participation and what does that require of the child?

As the justice Minister, I think everyone can assume that a couple of factors would come into play here. It depends on the individual circumstances of the child and what is in the best interests of a child. We had a bit of discussion earlier about clause 7, in Part 1, about some of the descriptions of what needs to be taken into account when a lawyer for the child is being appointed, and I also outlined that children will have their own different personalities and their own different wants and levels of comfort. So, in some instances, that may be the lawyer making a written submission on behalf of that child because the child may not want to go through a process of having to verbalise something in front of the people that are in front of them. I have relatively high observations—relatively high opinions—of the legal profession to make sure that they can make that judgment as to what is in the best interests of the child. I know the member has suggested that she has represented children in these cases, and I am sure that she has made judgments as to what level of participation is best for her client. And I am sure that those kinds of judgments will continue to be made depending on the situation of the case, the personality of the child, and the comfort and safety level as to which we want to make sure the environment of that these children are in.

Thank you. With respect, Minister, I didn’t suggest; I made a statement that I have actually represented children. May I just further elaborate on what you have indicated? Look, in relation to participation, I still am of the view, Minister, that it’s not clear, not only to me or to this House but to those who are going to be required to interpret and apply the law. Lawyers for children don’t make judgments; that’s for the judge or the court to do. We are a voice and we articulate either the view of the child or the interests. So my question, again, around participation—I put it to you—would you please provide a level of clarity as to what that requires?

I don’t think we want in legislation to prescribe precisely how the voice of the child in either care of children or family dispute resolutions should be enacted. So if the member is suggesting that we go to extreme detail about how participation should be prescribed or enforced in some of these extremely sensitive situations, again, the nature of these processes is sensitive. The personalities of the children and the family situations that they are in are extremely sensitive. What might suit one child may not suit another, and there may be multiple children in a care of children situation in one family. One may be confident to take one approach, and another may want to take a different approach. So I think that the courts and the lawyers involved in these situations, and the other professionals involved in these situations, are making judgments as to what is in the best interests of their clients as we speak, and if the member wants to prescribe that in great detail, then I think we force the hands of the people that we’re trying to protect.

Thank you. Minister, I appreciate the attempts that you are trying to provide with clarity. With respect, the New Zealand Law Society made submissions seeking clarity with the recommendations that have been made, and I am articulating those. And the submissions were for seeking specification around what participation is.

I’ll move on to the next point, if I may, Minister: clause 11(ba), where it talks about what the family dispute resolution (FDR) provider would consider appropriate. Again, Minister, I bring to your and this House’s attention that the New Zealand Law Society’s submission and recommendation—again, a speciality group of lawyers called Family Court lawyers, represented in these submissions by the New Zealand Law Society, made the recommendation, Minister, that clause 11 places the onus on the FDR provider rather than the FDR supplier to facilitate that participation of children in the mediation process. Minister, could you please explain why is it that the New Zealand Law Society, representing the specialist expert body of family lawyers representing children, which this bill has been drafted to address, has completely discounted and discredited that it should be an FDR supplier and not provider?

I think, in recognition of a point that was made by the member’s colleague Mr Penk earlier in the debate, alluding to a stocktake of the process both with the family dispute resolution (FDR) process and care of children processes, there is work being done by the Ministry of Justice, as we speak, to ensure the processes and framework for both the FDR and the care of children Act processes are fit for purpose and safe. So I think we acknowledge there is work to be done in order to have an environment where we can have a workforce and guidelines as to where the intent of this piece of legislation can be actioned, and that work is under way and yet to be completed. I know the member raises a point that the New Zealand Law Society has raised in terms of the operational functions around FDR providers and suppliers, and I am sure that will be looked at, that particular concern, during the stocktake process.

Minister, with respect, you’ve identified that there is somewhat of a discrepancy with your answer. On that basis, then, would it therefore not be more responsible to get the law—the bill—right and draft it so that there aren’t problems that occur later? So I put it to you, Minister, that what you’ve just identified is that there is a flaw, that there is an anticipated problem and fault, based on my question around the provider and the supplier, and the New Zealand Law Society identifying and recommending that the better law would be to have this bill amended from provider to supplier so that there are not those problems, as you’ve anticipated, eventuating.

I move, That the question be now put.

The question is that the question be now put. The question is that Part 2 stand part.

Tim van de Molen: Point of order. Thank you, Madam Chair. I just think, in that case—the member moved a motion—the motion does actually need to be put. You’ve moved straight on to the vote.

The question is that the motion be agreed to.