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Henaghan, Mark --- "New Zealand family law in the 21st century by B D Inglis" [2009] OtaLawRw 10; (2009) 12 Otago Law Review 201

Last Updated: 26 February 2012

New Zealand Family Law in the 21st Century

(By B D Inglis, Thomson Brokers, Wellington, 2007)

Judge Don Inglis QC, as he is known by family lawyers throughout New Zealand and Australia, has a unique perspective on family law. Don Inglis has taught family law, practised at the bar, sat as a Judge in the Family Court, and written two texts on family law. The third text, New Zealand Family Law in the 21st Century is published by Thomson Brookers as part of their Treatise series. This series aims to publish authoritative and definitive works of reference on New Zealand law. New Zealand Family Law in the 21st Century is such a work.

Don Inglis begins by asking what the nature of family law is, and what functions it performs in our society. Six principles are set out. First is the welfare and interest of the child, which, in Don Inglis’ view, requires parents or those in place of parents to meet their parenting responsibilities. This has been a consistant theme in Don Inglis’ judicial work. What is best for children is to have two parents caring for and nurturing their children whether they are living together or apart. In the path breaking decision of Makiri v Roxburgh (1988) 4 NZFLR 173, Judge Inglis QC started from the proposition that disputes over children are disputes about how parents can continue to exercise their responsibilities once a marriage or relationship is over, rather than disputes about who is best to have the child in their care.

Second the law should not undermine, trivialise or destabilise the family unit. Law can do more harm than good when it intrudes into the life of families. It is a reminder to family lawyers to do the least harm to the family in their work. It is easy for lawyers and judges to think they are neutral actors in a family dispute. However they can very quickly become part of the problem rather than helping with the solution. A nasty letter from a lawyer can very easily fuel a spiral of anger and contempt between the parties. An unnecessary snipe at the character of a litigant in a judgment can open wounds and slow healing.

Thirdly Don Inglis places marriage, whether by civil or religious ceremony, at the centre of family law as a basis for family life and family relationships. Statistics from the last census show that marriage as the chosen way of setting up a family is declining. In the 2006 Census, of the people that responded as being in a partnership, around 76 percent were married, compared with 84 percent in the 1996 Census. In contrast the percentage of partnered respondents in de facto relationships has risen from around 15 percent in 1996 to 21 percent in 2006. Don Inglis hopes that the law itself does not contribute to this decline and that marriage as a status, with its emphasis on a committed and long-term relationship, still holds as the foundation for family life. Recent family law legislation gives equal status to de facto relationships. This does not undermine marriage. A committed relationship depends on the minds of the couple and not the law.

Fourthly Don Inglis believes that marriage or civil unions should

not be lightly ended as this threatens the well-being and stability for children. At the beginning of his preface, Don Inglis cites a quote from The Spectator (13 March 2004) that two of “the very top divorce lawyers in the country [England]... sit their clients down and urge them not to divorce. From their years of experience they see that divorced people are invariably worse off in every aspect of their standard of living, including their social life.” Don Inglis comments that New Zealand lawyers should take note that the best solution is not necessarily what their clients want, and that they are not helped by finding out too late what would have been best for them.

The fifth principle is one dear to my heart, that it is necessary in family law to provide as much certainty as possible in legislation, specifying the consequences of and remedies available on separation or dissolution so that those concerned can know where they stand. Family law has struggled to deliver on this principle. Don Inglis says, no doubt based on his many years of experience at the bar and on the bench, that “it must always be remembered that each case is individual and specific, and that any rigid stereotyping of people or situations can lead to serious injustice, no less serious because it may be unintended.” (at p10) The problem with this concession is that certainty inevitably goes out the window and the individual characteristics both of the litigants, their lawyers and the particular judge who hears the case take over, with results that are impossible to predict even if everyone is trying their best to do justice in the particular case. Rather than the law determining the outcome, it is determined by the particular views the Judge brings to the case and the impressions the parties make on the Judge.

The last principle applies to the vulnerable who are not able to care for themselves. The crucial part is that their needs are not overlooked because of administrative convenience or the convenience of others. Legislation, such as the Protection of Personal and Property Rights Act

1988 places a strong emphasis on the rights of the individual person with a disability. The fact that Don Inglis states that administrative convenience or the convenience or ideologies of others can override the individual in such cases shows that he has seen this from his experience on the bench.

Don Inglis recognises what he calls the basic human verities and he emphasises that a function of family law should be to acknowledge and encourage the kind of behaviour and fundamental attitudes which keep viable rather than disrupt family relationships. The reason for this, in Don Inglis’ own words, is “particularly for the sake of children who remain the most vulnerable members”. (at p11)

Don Inglis is not a fan of the no-fault regime. He believes that it is for the legislature to grasp “the nettle of leadership in setting standards of what is unacceptable behaviour within a family relationship”. (at p

10) An area where the law does set clear boundaries of unacceptable behaviours is domestic violence. Don Inglis acknowledges that the volume of domestic violence is alarming. He also acknowledges the

important work that the Women’s Refuge Movement has done in providing safe homes and support for women in violent relationships. Preserving the family unit of these woman and children would expose them to danger and terror. For too long family law has put the value of family stability as the only function of the law, which means that the voices of those who were being harmed were never heard.

Philosophically for Don Inglis the core function of family law is to enhance the stability of family life. This value has come through in many of Don Inglis’ judgments where he has consistently encouraged both parents to remain responsible for their children and, in a famous decision Feasey v Feasey (1988) 3 NZFLR 97, refused a separation order because the parties should be able to put their differences aside and remain together for the sake of the children. Now that we have recognised for the better that abusive relationships are simply not to be tolerated, we are not necessarily loosening the stability of family life. We are freeing a person who is being abused to re-establish their life in a much better and healthier environment, both for them and their children.

A major strength of the book is Don Inglis’ mastery of technical skills. The chapter on the Family Court, which looks at practice and procedure in the Family Court, as well as evidence and appeals from the Family Court, should be read and kept by the bedside, as well as taken to court, by all family lawyers and Family Court Judges in New Zealand. Don Inglis has never lost sight of the fact that the Family Court is first and foremost a Court. Courts require procedures to be followed precisely and accurately, which is a fundamental discipline of the first-rate lawyer and Judge. The laws of evidence have a long history in helping the Court discern which facts are likely to be relevant and reliable. The Family Court, as family lawyers know, has a discretion to receive otherwise inadmissible evidence. The wording in a number of family statues is “to receive any evidence that it thinks fit, whether it is otherwise admissible in a Court of law or not”. But as Don Inglis has consistently said throughout his career as a Family Court Judge, and which he emphasises in this book, it is not a power to treat the ordinary rules of evidence as if they did not exist. It is not a discretion to exclude evidence which is admissible. It is a discretion to allow the admission of evidence that would otherwise be inadmissible. A major contribution that Don Inglis has made to the Family Court is that this discretion cannot be exercised at all where the evidence is of a kind which cannot be admitted in the absence of specific factors which must exist to justify its admission.

As the book emphasises, discretion was not provided to the Court to degrade justice by cutting evidential corners. Justice can be degraded by inadmissible and inadequate evidence which leads to proof being wrongly manufactured out of suspicion rather than clearly proven fact. The ultimate test for exercising the discretion is whether inadmissible evidence can be admitted safely and without injustice to either party. When hearsay is admitted there is often no room for it to be cross- examined and tested. The whole basis of a fair hearing is undermined.

Yet it happens every day in the Family Court. Lawyers for the child write reports for the Court which are used as evidence and not able to be cross- examined. Don Inglis rightly questions whether family lawyers should be more vigilant about challenging whether their clients are receiving a fair hearing if evidence that is generally inadmissible is being used to decide cases with no opportunity to cross-examine it. Family Courts are still Courts.

The chapter on evidence also looks at issues of credibility and expert evidence. Don Inglis reminds us that while the evidence of an expert should attract respect, “it is never any more than one part of the whole tapestry of the evidence to be considered by the Court in arriving at its determination”. (at p178)

The book covers all aspects of family law. Part 4 which is titled the “Protective Jurisdiction” deals with parent and child issues as well as Hague Convention cases, domestic violence and adoption.

In the area of child care and protection, Don Inglis has been a leader emphasising the importance of the wording of the Children, Young Persons, and Their Families Act when making decisions about children who are at risk of harm. This chapter shows that child protection law is rich in legal analysis. Don Inglis’ great strength is that he is first and foremost an analytical lawyer. The answers to legal issues are found by working carefully through the wording of the statute in its statutory context. This chapter shows that lawyers working in the field of care and protection need to be very familiar with the legislation and its implications for each case.

The chapter on domestic violence is very thorough. It covers all the definition sections as well as having excellent analysis of the application and how to launch it for a protection order. This is a crucial area of family law which family lawyers need to get right first time.

Part 5 of the book which involves four major chapters covers maintenance, child support, relationship property, trusts and settlements. These are all challenging areas of family law, and Don Inglis has done what he does best, which is to set out clearly and fully the legal principles and tests that need to be met in order to satisfy the particular statute.

The final parts of the book deal with separation and dissolution, and what is termed by Don Inglis as “post-mortem” – family protection and testamentary promises.

I was delighted to see that Don Inglis does not agree with me on how to determine the weight that should be given to children’s views in Family Court proceedings. Don Inglis’ view that the age and maturity of the child is relevant is consistent with the other Family Court, High Court and Court of Appeal Judges who have considered this issue. It may seem a little grudging on my part to argue that age and maturity are no longer relevant. It is only me and Parliament (who removed age and maturity from the section) who take this point of view.

New Zealand Family Law in the 21st Century bears all the hallmarks of Don

Inglis’ distinguished career. The reader is left in no doubt where Don Inglis stands on issues. All the family law statutes are given a thorough working over in terms of their wording and underlying principles. The writing is lucid and very readable. It is a book that will stand the test of time as a testament to a clear thinker about family law. Thomson Brookers have done an excellent job producing the work which is easy to access with a helpful Table of Contents and a helpful index of the relevant Statutes and Regulations.

Mark Henaghan, Faculty of Law, University of Otago.

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