Families And The State - Correcting The Balance
Monday, 31 May 2004, 4:09 pm
Speech: New Zealand National Party

NICK SMITH

MP for Nelson

Speech to National Party Canterbury-Westland regional conference Rutherford Hotel, Nelson Friday 28 May 2004 7.30pm

Politics is about fighting for change. Tonight I want to reflect on the rocky battles I have had with family law, and set out why reform is necessary.

This debate is about the powers of the State. I have always assumed that in New Zealand, competent parents have the right and responsibility to care for their children. I have assumed the State would only intervene where parents were in conflict or children were at risk of abuse or neglect. I also assumed that there was a consensus that a child's best interests were met by growing up with their mum, dad and siblings.

Because the Family Court is secret we have no idea if this assumption is true or not. The law governing child custody is so vague; it simply requires the court to act "in the best interests of the child." It is rather like giving the court a blank cheque. Even the United Nations Convention on the Rights of the Child, not known for being particularly conservative, gives parents some basic rights.

Twice in my parliamentary career I have been confronted with a married mum and dad, denied their children even though they were acknowledged by all to be fit and proper parents. Unable to publicly highlight their predicament compounded their sense of injustice at losing a child.

The first instance involved a Brethren family. My intervention successfully reunited that family during the period when National was in Government. Now that I am in Opposition, my similar advocacy for a Nelson Maori family triggered a contempt charge and a harrowing week in the High Court.

I want to put on record my sincere thanks to so many in the party, like our chair Roger Bridge, the Nelson Electorate team, and my caucus colleagues who supported me through that time. I particularly want to acknowledge Peter Malone and his fellow Parents Rights and Open Justice Trustees who raised over $70,000 for my defence costs.

In the course of this case I have been contacted by hundreds of people from all over New Zealand who have deep emotional scars from their experiences with the Family Court. These are people from all walks of life who feel they have suffered an injustice and their grievance is compounded by the legal gag on any public discussion of their case.

A man wrote to me saying he was so driven to despair and beaten by the system that denied him any contact with his daughter that he intended to take his own life. Tragically, when I contacted police he had already done so. Throughout his struggle with the court he had been campaigning for Family Court reform and his letter was to encourage me to battle on.

Another harrowing letter from this town was from a grandparent whose daughter had not only taken her own life but also that of her three daughters, out of anger and frustration over the Family Court.

When I look at New Zealand's awful suicide rate I wonder how many normally rational and responsible people are driven to desperation by the failures in our Family Court system.

There are two substantial reforms in children's law that I want to advance. The first is opening the court to public scrutiny and the second is strengthening both the rights and responsibilities of parents.

The secrecy of the Family Court is an example where the pendulum of privacy has swung too far. Privacy is important, but it is not as important as justice or ensuring the best welfare of children.

I was horrified to read that the Department of Child Youth and Family's Chief Social Worker had expressed concern about any opening up of the Family Court. The reason she gave was that people would be horrified at how badly children are abused. Why should people be able to abuse their children in private?

I take the opposite view. New Zealand will only start reversing our appalling child abuse statistics when we remove the secrecy from the court.

We also break a fundamental loop of law making in keeping the court secret. Our basic democratic traditions are based on Parliament writing the law, the courts administering it in open court, the public assessing whether justice is being delivered and, where it is not, the public pressing their elected representatives to refine and improve the law.

With a closed Family Court the lawyers and judges have a monopoly on the information needed to make an informed judgment on whether the law is working and being fairly administered. This is quite dangerous constitutionally.

It is illustrated by this arrogant quote from former lawyer and now Napier Labour MP Russell Fairbrother and shows just how out of touch Labour is on these issues:

"The Family Court has an outstanding record. The way to tell is to look at the record of appeals against its decisions. For the number of matters dealt with in that court, the lack of appeals to the top appellant court is truly remarkable."

Any person with an ounce of common sense would know that the reason the Court of Appeal has not dealt with many Family Court issues is that few parents, after spending tens of thousands of dollars in the lower courts, have the $100,000 plus to take a case to the Court of Appeal. Nor is an appeal much use in cases involving children when, as my Nelson family found out, it can take four and a half years to get to the High Court, let alone the Court of Appeal.

To make decisions about going to the Family Court the public needs information about the court and its processes. In civil and criminal law, people can work out the likely result and settle without the expense, delays and trauma of going to court, because they can inform themselves of case outcomes.

Anybody who has had the experience of the Family Court type issues would agree that it is preferable that disputes are resolved between family members. The experience in Australia, which does not have our draconian secrecy provisions, is that people are more inclined to resolve their issues in private when they know the court is open. Their experience is also that there are less extravagant claims of abuse. People are more cautious in an open court.

Critics of a more open Family Court cite the experience of the 1960's and 1970's when papers like Truth would publish divorce lists and salacious details of marriage break-ups. This was, of course, prior to our no-fault divorce laws.

However, we do need to be careful the pendulum does not swing too much the other way. We need to find a careful balance between open justice and a reasonable respect for people's privacy.

The approach I am advocating is that the court, like any other, is open, the decisions be publicly available, but that the names and identities of the parties be suppressed.

My second goal is to strengthen the rights and responsibilities of parents. This goes to the core of the issues that philosophically divide Labour from National. The increasing powers of the State over children at the expense of parents is the position consistently backed by Labour.

Right now the Care of Children Bill is before Parliament. This radical Bill increases the powers of social workers, psychologists, judges, step-parents and whanau, while further eroding the rights of the parents.

It is noteworthy that the architects of this Bill, Helen Clark as Prime Minister, Leanne Dalzell as the former minister responsible for the drafting, Margaret Wilson as the minister responsible for the courts, and Tim Barnett as chair of the Select Committee, all want to move away from this notion of parent's rights. It is telling that none of them are parents.

Some of the politically correct nonsense in this Bill has to be read to be believed:

"to avoid doubt, the father of the child is a reference to the same sex defacto partner of the mother of the child."

Under Helengrad, women can be fathers in law, but sorry, men, you cannot be mothers. The Government has backed off this wording but the intent is to remain. A woman partner of a mother will have the same rights as a natural father. Under Labour, they are the same.

The political correctness over Maori issues is just as concerning. The Government Law Report published in March shows how far we are going down the road to separatism. Maori parents are the losers in this. The rights of a New Zealander with Maori blood should not be any less than those of any other New Zealander.

I must emphasise that parental responsibilities are just as important as parental rights. They go together. I am very sympathetic to the plea from tens of thousands of dads who want the legal rights of access to their children strengthened.

This is even more important in the wake of social policy research showing that boys and girls need a male role model in their lives.

But there is an equally important quid pro quo. Parents need to be meeting their financial obligations.

My message to dads is simple. You have a right and critical role in your children's lives but you also have a responsibility to help pay the bills. I would go as far as to suspend the rights of access for those parents who do not pay their child support.

The latest child support figures show just how much the state, you and I as taxpayers, are picking up for absent parents. There are 66,000 absent parents (mainly dads) who pay the bare minimum of $13 per week. Overall, only 8% of the cost of the DPB is met by liable parent contributions. That leaves $1.59 billion per year for other taxpayers to fund, many of whom have to care for their own children.

It is my view that, alongside specifically recognising the rights of parents to have contact with their children, we need to lift the level of child support contributions.

I also want to express concern about the ballooning costs of the Family Court and question whether children and families are benefiting from this growing legal industry.

This $100 million cost is that met by the taxpayer. There would be that much again from people's private pockets.

These telling comments from the Principal Family Court Judge show that the court itself is recognising the need for reform:

"Too many cases return to court time and time again, on often the most trivial matters, because the court is seen as having a supermarket capability. Answers are sought from judges on everything from choice of school to choice of surnames. The Family Court has simply become too busy to do some of its core work effectively."

The way forward is firstly to make the law clearer. The fuzzy provisions of the new property separation laws just create a field-day for lawyers. The case I was pinged for would never have even gone to court if the law simply said parents have custody automatically unless there is evidence of abuse or neglect. We also need to provide for greater incentives for people to resolve issues themselves and provide more effective processes for mediation.

The Family Court should be free to focus on the central work of child protection to reduce our shocking statistics in this area.

The winds of change are gaining momentum.

A year ago those of us promoting the openness of the Family Court were dismissed as extremists. Since my case, both Government and Opposition Bills have been introduced to the House and even the new Chief Family Court Judge is supporting reform. The only question is "how far do we open the door."

I am equally confident the argument for increased parental rights and responsibilities will defeat Labour's politically correct agenda of the State taking over from the family. This is a battle that must be won for the sake of our children, and National is the party that can win it.

In this evening's speech I have focused on how, in family law, the State's tentacles have crept too far into our family living rooms. The same principles apply to family's wallets.

Yesterday's budget has families on incomes as high as $80,000 a year receiving welfare payments from the state.

Families need less tax not more State benefits. It is a disgrace that 60% of New Zealand families under Labour will be dependant on a State benefit to raise their children.

The 2005 election will be a battle of the State versus the family.

National stands for independence not dependence. We say let families keep more of their income not give more families a benefit.

National stands for parent's rights not state control. We say mums and dads have rights and these must be matched with responsibilities.

We stand for these values because strong families and not an all-powerful State is the way to give children the best start in life.

Ends

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