Catriona MacLennan: Court changes still a threat to kids

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Bill that would downgrade emphasis on domestic violence in the Family Court needs drastic rethink.

Let's not repeat mistakes with more untested changes. Photo / Getty Images
Let's not repeat mistakes with more untested changes. Photo / Getty Images

Congratulations to Family Court judges for speaking out publicly about the flaws in proposed changes to the Family Court and congratulations to Justice Minister Judith Collins for taking on board their concerns.

The Weekend Herald reports Mrs Collins has agreed not to implement proposals that would have banned lawyers from acting in the early stages of disputes over the care of children.

Now the Government needs to go much further in rethinking its plans.

In particular, it needs to put domestic violence at the forefront and reverse proposed reforms that would downgrade the emphasis placed on the safety of women and children.

The Family Court Proceedings Reform Bill, which would produce the biggest shake-up in the Family Court in its 30-year history, is before Parliament. Clause 14 would replace sections 58 to 62 of the present Care of Children Act 2004, which contain protections for children in cases involving violence.

The bill proposes to downgrade that protection with what are described in its Explanatory Note as "simpler provisions".

Why are we introducing simpler provisions when the safety of women and children is at stake? What is required are safer, not simpler provisions.

Also, the bill contains a new clause 4, which would allow the court to take account of the conduct of a person who "is obstructive towards any person who has, or who is seeking to have, a role in the upbringing of the child".

This appears to be based directly on the myth that mothers make up false allegations of domestic violence to keep fathers from seeing their children. There is no evidence to support this.

The fact that New Zealand continues to have such high rates of domestic violence and child abuse shows that the Family Court needs to do more to protect women and children, not less.

Some questions that need to be asked before any further steps are taken include the following:

• Why are women and children still dying when Protection Orders have been made in the Family Court to safeguard them?

• Why do judges give primary care to men against whom Protection Orders have been made?

• Why is violence to mothers treated as irrelevant to the welfare of children when research clearly demonstrates how immensely damaging it is?

• Why do some judges focus on fairness to the respondent rather than the safety of women and children when dealing with Protection Order applications?

• Why do judges dismiss violence to mothers as "situational" violence relating to the ending of a relationship and not relevant to children's safety?

• Why are mothers who raise safety concerns labelled as alienating and frequently punished by having their contact with children reduced?

Some of the changes in the bill seem to run counter to the Government's own ends. For example, throughout the Family Court history, counselling and mediation have been extensively used and most cases are resolved by these methods without the need for an adversarial defended hearing.

Until recently, people have been entitled to six free counselling sessions provided through the Family Court, without the need to file proceedings first.

But last year, as part of the planned changes, free counselling was immediately cut back to one hour as an interim measure until Family Dispute Resolution was established.

People can now access three instead of one hour's counselling but only if they file an application in the Family Court, creating an incentive to issue proceedings to access more hours of counselling - the opposite of the Government's stated aim of reducing the number of cases in the Family Court.

In the past year, we have already seen in Auckland's family courts the chaos that resulted from implementing the untested and ill-thought out policy of central processing of cases. The then-Principal Family Court Judge, the Law Society and lawyers all strongly criticised the new system and warned of the risks.

Let's not repeat those mistakes with more untested changes which downgrade the importance of the safety of women and children - the very people the Family Court should be protecting.

In 2011, the Australian Government reversed disastrous 2006 changes after clear evidence of the negative impact of failure to pay proper heed to domestic violence and protect children from it.


Catriona MacLennan is a barrister. She does not receive any income from the Family Court or from Legal Aid.

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- NZ Herald

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