Hon Christopher Finlayson

CHRISTOPHER FINLAYSON (National) : As Dr Hutchison said, National supports the third readings of this legislation. I have not taken part in the Committee stage, but I have followed this legislation very closely, because I think it raises a number of very important issues, and I want to make just a brief contribution on a couple of them.

This type of litigation is hugely sensitive. In fact, it is one of the most difficult areas of court work any lawyer or judge can be involved in. A key issue this legislation tries to deal with is the extent to which Family Courts should be open to the public, and by that I also include the media. It is a basic principle, when one deals with our justice system, that there be openness in our court proceedings. By that, it is suggested that the courts should be open to the public so that if a member of the public wants to sit at the back of the court and watch a proceeding, then he or she should be entitled to. There are very few exceptions to this. Sometimes one can have hearings in chambers, and in very rare circumstances one can have in-camera hearings, but the general principle is one of publicity or openness.

I think that the Social Services Committee has dealt very well with this issue in trying to weigh up the kinds of factors involved in determining who should have access to the courts, and in what circumstances. I commend the select committee for that, and I hope that as this legislation comes into force, this difficult issue will be able to be resolved more clearly in the future.

The second point I want to make is related to clause 9 of the Care of Children Amendment Bill (No 2), which makes some changes to the Care of Children Act 2004. There are some excellent provisions dealing with the duty of lawyers to promote reconciliation and conciliation, and they will come under new section 46D of the Care of Children Act, and there is also a new section 46E, “Duty of Courts as to reconciliation and conciliation”. I really think it is so important a principle of law that it does need to be spelt out in statute. There are some who would say that it is implicit anyway, but I think it needs to be clear beyond doubt that a lawyer has a duty to ensure that the spouse, civil union partner, or de facto partner is aware of the facilities that exist for promoting reconciliation and conciliation, and, furthermore, that the lawyer takes such further steps as he or she thinks fit, as may be necessary to assist in promoting reconciliation, or if reconciliation is not possible, then conciliation. Similar provisions exist in relation to the court, and I cannot emphasise enough the importance of that kind of approach to the conduct of family litigation. Indeed, I go further than this; I believe that those provisions should form part of the general law.

I think it was a few weeks ago that Dr Worth, speaking in the House on a particular judicial bill, referred to a statement by Lord Denning many years ago. Lord Denning was a former Master of the Rolls in England, a highly respected judge revered by students for generations, who once said: “In litigation as in war, if one side makes a mistake, the other side can seize upon it.”

But there has been a sea change in the attitude to litigation, particularly civil litigation, in recent years, and the approach is that it is the obligation of the lawyer to join with the judge in getting to the truth of the matter. So, in litigation, there has really been a move to “cards face up on the table” rather than thinking one is playing a game of poker in litigation. This legislation takes it a step further and imposes a particular obligation on lawyers to promote reconciliation, and I think, as this Parliament reviews the civil justice system in the years to come, there is a very good argument that those general principles should also apply to those who are engaged in civil litigation, because far too much delay and expense is incurred when lawyers play games. There are tedious interlocutory applications, and matters seem to go on for an eternity rather than cutting to the chase and helping clients resolve their disputes.

The next set of rules, or sections, I want to refer to—and again they are introduced by clause 9 into the Care of Children Act—deal with mediation, and the rules relating to mediation are spelt out in some considerable detail. I think it is probably a good thing for this Parliament to address what some may think are questions of procedure. They are hugely significant issues, and rather than people fighting it out in court, mediation or alternative dispute resolution is, certainly, in my opinion, the way to go in this type of litigation. Mediation developed some 20 or so years ago, and it and other forms of alternative dispute resolution are a fundamental part of the justice system, but especially in family-type litigation, where it is very desirable that the parties should try to mediate their difficulties because it is so much cheaper. One can also deal with issues far more expeditiously, and then folk can get on with their lives after what—after all—is a very traumatic part of their lives. So I commend the Social Services Committee for the work it has done in bringing into some of these statutes—and I will not go through all of the statutes—some comprehensive procedures relating to mediation.

The final matter that really needs to be emphasised—and it is picked up in a number of provisions—is the avoidance of unnecessary formality. Rather strangely, there is a reference in new subsection (2), inserted in section 10 of the Family Courts Act by clause 44 of the Family Courts Amendment Bill, to the requirement: “A Judge sitting in a Family Court may wear a gown, but must not wear a wig.” I do not think judges have ever worn wigs in the Family Court. New subsection (3) in section 10 states: “A lawyer appearing in a Family Court must not wear a gown or a wig.” It may be considered that those provisions are otiose, but they certainly bring home the point that the Family Court is not a place for formality, but is a place where lawyers and judges are expected to act, obviously, in a formal way, but not with unnecessary formality.

Although I was not involved with the Committee stage of the legislation I think the select committee and the Committee are to be commended for the work they have done in this very sensitive area of the law. A number of statutes have been amended, and I think the end product is very good indeed. But as I said, I would be particularly interested to follow the development of the mediation rules.

The other thing I will be very interested to follow—and this is in relation to those clauses that I dealt with earlier about the duty of lawyers—is the question of lawyers who breach that duty. Will there be professional sanctions against them, or could there, in fact, be civil sanctions? That is one of those interesting issues that I know is going to arise, and we will have to wait and see how it is played out. National supports the third reading of this important legislation.