New Year
I would like to welcome all our members to the New Year. I believe 2004 will be a very productive and exciting year. I hope all of our members are fit and healthy and enjoying the challenges that our area of the law provides us with every day.

Judge Patrick Mahony
It was great to see Judge Mahony recognised in the New Year’s Honours. He has made an enormous contribution to the Family Court in New Zealand and to family law generally. The Section congratulates him.

New Principal Family Court Judge
Congratulations must go also to Judge Peter F Boshier who has been appointed as the new Principal Family Court Judge from March 2004. I am sure that Judge Boshier will make an outstanding contribution to the Family Court. I am certain that the excellent relationship that the Family Law Section has with Judge Mahony will continue with Judge Boshier and I was very pleased to see this appointment.

Care of Children Bill
We are looking forward to the Select Committee reporting back on the Care of Children Bill, in late March. It will be very interesting to see what they say after hearing submissions right around the country. Some of the public statements made by members of the Select Committee indicate there may be a majority and minority report.

Australian Parliamentary Committee Report
The Australian House of Representatives Standing Committee on Family and Community Affairs reported to the Parliament of the Commonwealth of Australia in December 2003. Every Picture Tells a Story is a report on the inquiry into child custody arrangements in the event of family separation (http://www.aph.gov.au/house/committee/fca/childcustody/report.htm).

It is my understanding that this inquiry was set up because of the concerns in Australia, particularly, from a number of men’s groups, about the law relating to the care arrangements for children. This report is of great interest to us in New Zealand because of similar groups with similar concerns here.

I have to say with the greatest of respect to our Australian cousins that reading the report was like going back 25 years in New Zealand. The report gives the impression that the Committee believes its ideas are new but in fact many of them were implemented as part of the New Zealand Family Court legislation and structure in 1981.

For example the first recommendation of the Committee is:

...to create a clear presumption, that can be rebutted, in favour of equal shared parental responsibility, as the first tier in post separation decision making.

This concept was incorporated in our Guardianship Act in 1968, 13 years prior to the formation of the NZ Family Court. It is easy to forget how far advanced our Guardianship Act was when it was introduced.

Recommendation 4 suggests that the language of ‘residence’ and ‘contact’ be replaced with family friendly terms such as ‘parenting time’. It appears that in Australia they are finding that the previous change in terminology has not improved the situation. It is pleasing to note that the Family Law Section, in its submissions on the Care of Children Bill, supports enforceable shared custody orders or parenting orders and the term ‘parental responsibility’ being incorporated into our new Act.

Recommendation 6 of the Australian report suggests an education strategy and support for families to promote positive shared parenting after separation. Again the Family Court of NZ has already been doing this for a long period of time and many Family Court decisions have demonstrated this.

It is interesting to see that in NZ the Family Court has had access to a wide range of services for a considerable length of time that are only now being considered in Australia. It is absolutely imperative in terms of continuing the Family Courts’ excellent work in the community that successive Governments make a continual commitment to ensuring that the Family Court is adequately resourced.

One of the things that I am hoping that we as a Section will continue to do this year is to see if and how the current Government implements the recommendations of the NZ Law Commission’s report No 82 - Dispute Resolution in the Family Court.

I believe the Law Commission report provides an excellent blueprint for the ongoing development of the Family Court in NZ. The Australian report makes me realise that if NZ is to continue as a world leader it must have continual commitment by ministers and the Government to resourcing the Family Court.

Recommendation 11 of the Australian report causes me the most concern. It is suggested that for all family law matters there be a shop front single entry point into the broader family law system. The objectives behind this may be laudable, although I suspect are driven by some cynicism about the role of lawyers. I believe the proposal is unworkable and you will already have noted the similarity between this and the ideas floated by our Law Commission.

Currently the gateway to the legal systems both here and in Australia is through lawyers. A client consults a lawyer and decisions are made in light of the advice and information given. That can include counselling, mediation, urgent applications to the Court, negotiation, and a range of other strategies. The lawyer has a critical role in the timing and the pathways taken by any particular client.

The Australian report is suggesting that a number of people appointed by the Government will determine which particular pathway is taken. This concerns me from a constitutional point of view because it appears to be labelling people at the outset without any investigation. Also, as we know, the great majority of people that separate and consult lawyers do not access the Family Court. Some issues may be resolvable by negotiation and agreement and others might need assistance from the Court. How is a person going to decide which aspects need to be dealt with by a lawyer without firstly getting legal advice. Of course they will be unable to decide and in order to protect their rights will inevitably continue to consult lawyers because they need the support, expertise and objective advice that only a lawyer can provide.

This report appears to me to be yet another report from a Parliamentary Committee which believes that there is a ‘Team B’ out there that somehow can do the job better than the existing ‘Team A’, that has been doing the job for centuries and in most cases successfully. It reinforces for me the ongoing objectives of the Family Law Section to continually try and up-skill our members, improve our standards and to question change. This is why our last conference had ‘Raising the Standard’ as its theme and this will continue to be a major objective of the Family Law Section.

I recommend all members read the Australian report as it is always interesting getting a perspective from across the ditch.

David Burns
Chair