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Muriel Newman: The Winds Of Change

Muriel Newman – The Column
The Winds of Change

The winds of change are now sweeping towards New Zealand’s Family Court. In a report to Parliament earlier this month, not only has the Law Commission recommended that the Family Court be more open but, both the former and present Chief Family Court Judges have indicated that the judiciary is relaxed about more openness and that it is now time for Parliament to address this issue.

The Family Court – which deals with matters effecting families – was set up in 1980, as a result of recommendations of a Royal Commission on Courts. While it has predominantly been a closed court since then, over recent years – fuelled by the belief that the court was no longer achieving the best outcome for children – pressure has been mounting to open the court up to public scrutiny.

In particular, families torn apart by this secret court’s judgements believe they have been denied their fundamental right in a free society to speak out about their perceived injustice. Similarly, the media have been prevented from reporting such cases under threat of prosecution. Last week’s conviction of National MP Nick Smith – along with Radio New Zealand and TV3 – for speaking out about just such a case has significantly raised public concern about the Family Court, adding impetus to the mood for change.

In light of these developments, it is timely that my Private Member’s Bill to open up the Family Court – the Family Court (Openness of Proceedings) Amendment Bill – is presently before Parliament. I am hopeful that all political parties will recognise the need to take this issue seriously and support the Bill to a Select Committee.

Moves to make the Family Court more open are not unknown to new Principle Family Court Judge Peter Boshier. Three years ago he took the unusual step of inviting the media to report on events in his court because of concerns over the Department of Child, Youth and Family’s on-going failure of to uphold the orders of the court. In fact, he was so outraged by the incompetence of the Northland branch of the Department that he threatened to charge CYF managers with contempt.

Earlier this year another Family Court Judge, Tim Druce, continued the judicial name and shame campaign against the Government’s child welfare agency by ordering a judgement regarding the failure of the same branch of CYF to be made public.

Overseas experience has shown that a reduction in child abuse occurs if a Family Court is more open. With the prospect of the regular reporting of inefficiencies and failure – instead of isolated cases – the state child welfare agency has a strong incentive to improve its performance. Other children who are the major beneficiaries of a more open court are those caught up in family breakdown battles. Many of those children walk into a courtroom with two parents, but leave with one. The court effectively tears families apart under the guise of being ‘family friendly’, causing heartbreak, suicide, anger, and pain, and creating an enormous sense of injustice and loss.

But it goes deeper. There is now overwhelming evidence that the awarding of sole custody of children to mothers – historically the predominant outcome of Family Court custody cases – can lead to the widespread alienation of fathers. The problem is that limiting a father’s access to his children has now been shown to cause them significant disadvantage, with boys more likely to drop out of school and get into trouble with the police, and girls more likely to become sexually promiscuous. In light of this, having laws in place that weaken the relationship between a father and his children no longer appears sensible. Unfortunately, many New Zealanders are largely unaware of the problems caused by ‘fatherlessness’, because they arise as a result of judgements made in the secret Family Court. Ensuring such issues are more widely understood is one of the strongest reasons for lifting the veil of secrecy that shrouds the Family Court.

There is little downside to a more open Family Court – so long as judges retain the right to protect the identity of the individuals and close the court on a case-by-case basis. Leaving judges with such veto powers means that access can also be restricted in cases deemed to be too sensitive. If New Zealand follows the experiences of other countries, open justice will provide significant benefits: children better supported by parents and grandparents, less parental alienation, a drop in litigation as more couples choose mediation, a reduction in the cost of legal aid, a decline in the number of false allegations made by parents against one another, less child abuse, and, through the efforts of the fourth estate, a far greater public appreciation of the profound effects of family law legislation on children, families and society.

Do you think it is time for the Family Court to be more open?


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