KEY POINTS:
The Family Court Matters Bill before Parliament is apparently designed to improve the standing of the Family Court in the eyes of the community.
More information about the court will become available and judges will wear black formal gowns to give, in the words of the principal judge, more gravitas.
However, I would suggest that the problems with the Family Court, and how it is viewed by the community, run much deeper than the issues the bill might address. The court suffers from being the only court in our legal system that appears to frequently operate in a moral vacuum.
In the Criminal Court, laws that state "thou shalt not kill or steal" enjoy general public acceptance. The Civil Court compensates those who have suffered loss at the hands of wrongdoing third parties. And its equity jurisdiction has a historical moral basis.
The Family Court operates differently. The no-fault divorce ideas of the 1960s have led to family law legislation that often seems to reflect no clear social values, apart from financial equality, regardless of behaviour.
Nowhere is this more evident than in the Family Court's property relationship jurisdiction. It is ironic that if one enters into a business partnership with a total stranger, the law requires the partners to act towards each other with the utmost good faith and a civil court will enforce that requirement.
However, one can lie, cheat and betray a spouse, civil union or de facto partner and the Family Court usually will order the payment of half the family wealth to the offending partner without making any moral judgment.
Indeed, if the other partner brought a house or more wealth into the relationship at the outset, the effect of the law means the Family Court can richly reward a partner whose actions may have been morally reprehensible and have destroyed their family.
It has been legally fashionable during the past 40 years to pretend that conduct does not matter in family relationship breakdowns and that it always takes two people to make or break a relationship.
But the social expectation that people in a committed relationship will behave with some degree of decency or loyalty towards one another, has been deeply ingrained in our society for more than 1000 years.
Individuals who have seen their families destroyed and homes lost through the selfish behaviour of a partner, find no consolation in the lack of interest the Family Court often displays to their circumstances. This comment is not an adverse reflection on judges, it is simply how the law operates.
Often in the Family Court litigants try to raise issues that have caused them considerable upset in their relationship breakdown, only to be told they have no relevance in law.
Sometimes, they are told in an unintentionally but nevertheless patronising manner, they should only focus on their future. Important personal issues are left unresolved for these people. They see the Family Court as having failed them.
While much of our family law legislation continues to lack any connection with the values still held in most parts of our community, the Family Court is likely to continue to struggle to attain the respect it should have.
* Terry Carson is a South Auckland lawyer, with more than 35 years practising in the Family Court
