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?
ENDS