INDEPENDENT NEWS

QC Wrong To Dismiss Family Law Death Warning

Published: Mon 9 Oct 2000 10:35 AM
The Law Society on Friday slammed FARE (Families Apart Require Equality) for claiming that bad family law can result in tragic deaths. John Priestley QC, said that “it is nonsense to say that NZ law and the Family Court encourage parents to fight over children”. But ACT Justice Spokesman Stephen Franks called instead for reasoned debate on proposed changes which may increase irrational violence, especially toward judges and lawyers.
“Of course fights are inevitable. Sadly, children are valuable tokens, giving to the parent who gets them exclusive right to assets and control of access” said Mr Franks.. “Some of that is unavoidable, but Mr Priestley surely knows of the Family Court judges’ concern, that the government wants new property law that could make things worse.
“The principles of ‘equal sharing’, ‘clean break’, and ‘no fault’ are to go, but to what extent no one can tell, because it will be left to the judges to decide.”
“Principal Family Court Judge Mahoney took the unusual step in July of going to the Select Committee dealing with the Property (Domestic Relationships) Bill which will change our matrimonial property law, to plead that it spell out more clearly what it intended.
“He came because the Bill just states lofty intentions. It will force the judges to try to work out what it should mean in each case, at the expense of the thousands of unhappy families who have to pay for needless cases when no one can tell them in advance what the result will be. The Law Commission had a similar worry.
“In Australia, Family Court judges have been murdered. A climate of menace can flow directly from uncertainty in family law. The disappointed party knows that the lawyers, not the law, have decided the outcome. The law leaves the judges such wide discretions, that the decision can turn on how the judge feels about the case.
“Law should be about rules known in advance, not the feelings of the particular judge on the day. Each side’s lawyers should be giving their clients much the same advice about what the will happen if the case goes to trial. That is what the rule of law means. But it cant happen when the law is framed as slogans, not clear rules.
“When there is no sign that the Government is listening the Law Society should have acknowledged the issues raised by FARE, even if it is too much to say that the tragedy in Nelson would not have happened under better law.
“A dramatic law change is being rammed through. The Select Committee is to report next month. The public has heard mainly that it extends to de facto and same sex couples.
“Much more is at stake than that. The change ups the “bitterness token” value of children to the party who “wins” the case. The Law Society should be taking every opportunity to get us to think about the Judges’ concerns, and to raise our sights to look at overseas experience,” said Stephen Franks.
For more information visit ACT online at http://www.act.org.nz or contact the ACT Parliamentary Office at act@parliament.govt.nz.

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