An alert reader has noticed that we should be publicising this important piece of upcoming legislation. Thanks for the heads-up Mike.

Download the proposed Family Courts Matters Bill here. [1297 Kb pdf]

Submissions to the Social Services Select Committee on this bill are due on 29th October.

The Parliamentary debate at the introduction of this bill makes it clear that there is substantial cross-party support, indicating that it will certainly pass in some form or another.

Judith Collins (National), who has practiced in the Family Court, does a pretty good job of demonstrating how intervention by lawyers – expert at manipulation of the system – works against the best interests of children – which is to have parents who co-operate.

There is a tremendous amount of legal aid that is paid out in the Family Court area. I would really like to see the day – and this is not going to win me too many votes in my legal fraternity – when people can actually feel free to attend at the Family Court for mediation and assistance on a matter without having to feel that they have to file proceedings and affidavits, which effectively ruin any chance, in many ways, of their ever having a decent relationship. I have seen affidavits prepared and sent to me for witnessing, by others, that are patently untrue. I have had to say: “I am sorry. I do not believe this. Is this true?”.

I remember quite clearly a woman who turned up in my office in Auckland one day bearing an affidavit about how she was frightened of her ex-husband, how she needed these protection orders, and everything else, and how she needed to stay in the house. I just said: “Is this true?”. She said: “No.” So I asked her why she had the affidavit. She said she had been told that if she did not say this, then she would not be able to get him kicked out of the house.

Frankly, that is illegal activity. That woman was prepared to perjure herself, and it was not that the lawyer had told her to say that. It was her friend who had told her to say that. Her friend had obviously been party to a particularly bitter matrimonial dispute and was full of brilliant advice. The brilliant advice could have landed that woman on a perjury charge.

But we know, those of us who have practised in this area, that there would have been an absolutely zero likelihood of that ever happening, because once the allegation of domestic violence had been made against the husband he would be tarred with that brush for ever. In fact, maybe that is what has to happen, but it seems to me that there can be, in fact, and often is, an abuse of that court process.

According to Ron Marks (NZ First), the efforts of the Men’s Movement are having an impact:

I do not think there is a member of Parliament who has been in this House for more than two terms who has not had representations before them from disaffected parties to Family Court hearings. Of course, we are all very familiar with many of the pleas of certain men’s organisations and lobby groups against the unfairness of the process, the disadvantage of the privacy or closed nature of the Family Court, and how their proceedings are dealt with.

When Parliament resumed on 4th September NANDOR TANCZOS (Green) raised what will probably be the key issue in my opinion; whether there will be enough funding to ensure effective mediation services of a proper standard can be delivered rapidly throughout the country.

The other issue I will mention is around non-judge-led mediation. Again, that view is something that the Green Party supports. We are very strongly supportive of less formal ways of resolving people’s disputes and issues. We believe that ordinary people have a real ability to work out the best solutions for themselves, given a little bit of help in terms of a good, proper process that can help to facilitate these kind of solutions. We are very supportive of that. Of course, we are well aware that the successful implementation of mediation relies on adequate funding.

I did a quick search on both pages of the debate, to find that only one MP mentioned the word “father”. JUDY TURNER (Deputy Leader–United Future) raises the fundamental flaw in the the way NZ manages domestic disputes – the Family Court operates in a moral vacuum. This is not addressed by this Bill. As Turner points out:

The court is simply directed to act in the best interests of the child when determining custody arrangements. Although this is a noble guide, it effectively leaves total control of families’ future make-up to the whim of an individual judge.

Turner also raises the important issue of DNA Testing:

In the Law Commission’s paper on legal parentage it recommended that judges be able to order that a DNA test be done when it is in the best interests of a child for this to be determined. The test would not be something that the father could sneak around behind the mother’s back and get done; it would be in an open and transparent way. Where paternity is contested, surely the Family Court should be able to get this very simple procedure done. In this day and age it is not even an invasive procedure. A buccal swab from a child’s mouth is all that is required to determine whether the father is the father.

As a father cannot even begin the process of applying for contact with his child until he has determined that he is the father, it seems archaic that the Family Court cannot order this procedure done. I am disappointed that the Minister for Courts has turned down this chance to include what is an already drafted provision.