Media release to the NZ Herald, Dominion, Press, Otago Daily Times from

Anita Chan, Chair of the Family Law Section of the New Zealand Law Society, responding to the debate about opening up the Family Court

The campaign to support Muriel Newman’s Bill, which calls for the Family Court to be opened to the media and, except in exceptional cases, to the public, has escalated into a frenzy of dangerous misinformation about the Family Court. The principal supporters of the Bill are Muriel Newman herself and various men’s groups. They claim that confidentiality of Family Court proceedings allows lawyers and judges to perpetuate an anti-male conspiracy which victimises men and their children. They accuse lawyers and judges of using this confidentiality to entice unsuspecting litigants into using a system that Muriel Newman says "brutalises" families to such an extent that people are driven "to murder and suicide". (Dominion, "Banish this Secret Society", 6 December 2000.)

According to Muriel Newman, opening the Family Court to the public and the media would expose it for the brutal system that it is and therefore mothers and fathers would be more likely to settle their disputes by agreement.

In waging this campaign against the Family Court system and its judiciary, Muriel Newman and the men’s groups rely on emotive anecdotal stories and randomly selected statistics – and choose to ignore certain fundamental realities.

In her article in the New Zealand Herald of 15 February 2001, Muriel Newman proffers opening the Family Court to the media and the public as a cure-all for a grab bag of social ills. She claims that "strict disclosure rules" have "shielded Family Court judges, lawyers and case workers from accountability" and "obscured the need for institutional reform".

It is incorrect to claim that judges, lawyers and case workers (I presume she means social workers) are not accountable. The decisions of Family Court judges can be appealed to the High Court. Lawyers are accountable to the clients who engage them and to their district law society and the New Zealand Law Society. Social workers are accountable to the Department of Child, Youth and Family.

Moreover, Family Court judgments are publicly reported with appropriate protection for the individual privacy of the litigants. Thus the legal principles set down by Parliament and interpreted by the courts in reported cases can be and are subject to public debate. They will come under extensive scrutiny with the current review of the Guardianship Act, which deals with the legal relationship between children and their parents.

It is the legal principles applied in Family Court cases that are important in any debate about public scrutiny and not the private details of the individual families involved. It is therefore wrong to contend that opening the Family Court to the media and the public will enhance the quality of dispute resolution. If anything, wholesale lifting of the veil of confidentiality will undermine the court’s ability to help resolve family disputes. The lack of privacy will deter many from using the court when they need to, inhibit the giving of evidence and obstruct the aims of settling disputes with the least possible acrimony.

The Family Law Section of the New Zealand Law Society supports wholeheartedly publication of Family Court case statistics and believes the Department for Courts should be resourced for this. However, this issue is not assisted in any way by Muriel Newman’s Bill.

If Muriel Newman is genuine about wanting to improve public scrutiny of the Family Court, then she should be lobbying for the court to be able to release edited (in order to protect the privacy of the individuals involved) versions of decisions, make comments to the media in appropriate situations and to play an educational role so that it can make the public aware of the stance being taken on significant issues such as violence.

I reject Muriel Newman’s premise that opening up the Family Court would encourage more people to opt for mediation. The Family Court system is already specifically structured to encourage parties to resolve their differences by agreement. Indeed it is a common complaint of consumers that the Family Court will not hear cases until the avenues of court-directed counselling, judge-assisted mediation and counsel for child-assisted conciliation discussions (often involving input from child psychologists) have been exhausted. The Family Court does not even become involved unless and until families are unable to reach agreement on their own.

Of the cases for which assistance from the Family Court is requested, about 90% are settled before they reach the stage of a final hearing. The court is required to give judgments in only a very small percentage of cases where agreement is unable to be reached despite the extensive assistance provided by the Family Court system. Not surprisingly, such cases often involve at least one intransigent party. The courts are under a statutory duty to place the welfare of children and not the parties as the paramount consideration. It follows that upholding this duty will inevitably result in parties sometimes becoming aggrieved.

The recent attempt by a men’s group to influence the judiciary by releasing the names of judges they deemed anti-male is a serious matter. As Attorney-General Margaret Wilson has said (Otago Daily Times, 17 February 2001), the job of any judge is to apply the law without fear or favour, however unpopular that decision might be. The Family Law Section of the New Zealand Law Society has total confidence in the integrity of the New Zealand Family Court judiciary and the Family Court system. Judges have no interest in promoting an anti-male attitude. On the contrary, they have a specific statutory mandate to place the best interests of children above all other interests, including any competing interests of mothers and fathers.

Lawyers have no interest in protecting judges. As individuals, lawyers represent men, women and children. Their duty in any particular case is to represent their client to the best of their ability.

It is notable that Muriel Newman neglected to consult the Executive of the Family Law Section before presenting her Bill to Parliament. MPs from both National and Labour regularly consult the Family Law Section (which represents family lawyers in New Zealand) when formulating policy relating to men, women and children whose lives are affected by the Family Court.

The Family Law Section invites Muriel Newman to consult its Executive when she next considers proposing legislation which affects families and in particular children. Consultation in the present case may well have resulted in a Bill being presented which called for effective reform of the laws affecting families and the Family Court system rather than one based on misinformation.