Hopeful Signs At The Family Court
Weekly Column by Dr Muriel Newman
The three pillars of a democratic government are the Executive, the Legislature, and the Judiciary. The media as the fourth estate plays an essential role in scrutinising the process of government, exposing poor policy and practice, and creating a climate for change.
Since there can be little public confidence in a legislature or judiciary that operate in secret, a presumption of openness is fundamental to the processes of Parliament and the justice system. Openness ensures that the public interest in law making and in the administration of justice, are satisfied.
That is why it is such an anachronism that in a modern democracy in the 21st century we still have in place a court that operates in secret without any public scrutiny.
The Family Court - the court that deals with family matters - operates under a veil of absolute secrecy. That secrecy denies people who have been subjected to judgements their democratic right to free speech, preventing the normal safeguards of scrutiny by the media and the public. By operating in secret, judges, lawyers and caseworkers are shielded from proper accountability, obscuring the need for institutional reform.
The New Zealand Family Court deals with proceedings under eight Acts of Parliament: the Children, Young Persons, and Their Families Act 1989, the Child Support Act 1999, the Domestic Violence Act 1995, the Family Proceedings Act 1980, the Guardianship Act 1968, the Mental Health (Compulsory Assessment and Treatment) Act 1992, the Property (Relationship) Act 1976, and the Protection of Personal Property Rights Act 1988.
Issues arising from disputes under any of these laws are heard in the Family Court. As the proceedings and the judgements are secret, such matters including details of the cases themselves only come to the attention of the public if there is an appeal to another court. The media are prevented from reporting Family Court cases under threat of criminal prosecution.
While the Family Court acts under the presumption of being closed, a Judge may in fact permit people not otherwise specified to be present during a hearing, to attend. Such discretion is entirely in the Judge’s hands, and while Family Court proceedings have occasionally been opened to the media for reporting purposes, such occurrences are extremely rare.
As a result of the secrecy surrounding the court, allegations of gender bias, of injustice, of prolonged litigation and of spiralling legal aid costs, are widespread. In the absence of proper reporting or even court statistics – they haven’t been released for over a decade – the reputation of the court continues to decline. One court worker who had been involved in the Family Court for more than ten years wrote to me describing her view: “the Family Court brutalises families and individuals in ways that we are not prepared to tolerate from the prison service, police, military or IRD. If the public could hear of the pressure there would be a huge outcry”.
It was after receiving volumes of such correspondence from embittered Family Court victims that I embarked on a campaign to open up the Family Court. I wanted to see a Family Court framework similar to that in Australia: a presumption of openness to the public and the media while still protecting the identity of individuals, as well as enabling Judges to retain the right to close the court on a case by case basis.
According to my research, the implementation of Australia’s open family court regime brought about dramatic changes: in some states 80 percent of cases are now settled through mediation, 70 percent of divorce applications are made without a lawyer, and false allegations have plummeted.
With those positive outcomes in mind, I drafted a Private Member’s Bill to open up the New Zealand Family Court. Although the bill was defeated by the Labour Government, the initiative was widely supported by the media and the public. As a result a momentum for change was created. That support now appears to have paid dividends.
In response to my parliamentary question last week asking whether the government was considering making the Family Court more open, the Minister indicated that changes were in the pipeline: details of guardianship judgements will be able to be published in the general media so long as all identifying information is removed, and more people will be able to participate in hearings instead of being locked out.
Although these initiatives do not go far enough – and I have just launched a petition to parliament in order to maintain momentum in my campaign to open up the Family Court – they do nonetheless represent progress.