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777 THE TREATY OF WAITANGI promised to protect Mäori customs and cultural values, and to promote partnership between Mäori and the Crown.[218] As tangata whenua and partner to the Treaty of Waitangi, Mäori expect the justice system – including the Family Court and its processes – to recognise their values and practices.
778 The Family Court deals with issues arising from family life. Concerns that parties bring before the Court are, therefore, deeply personal and steeped in cultural values. How society organises and attributes value to family relationships is fundamental to Family Court business.
779 The western, individualist approach to family life and behaviour is so embedded in Päkehä value systems, it is difficult for most Päkehä to recognise the degree to which these values permeate and influence their attitudes and priorities. It is also difficult for those not brought up in Mäori society to appreciate the profound and complex ways that Mäori values create other attitudes and priorities. Thus, Mäori and Päkehä often talk past one another.
780 The Court system has evolved as a formal process with strict procedural rules. A court is an unnatural environment for most parties appearing before it, and is familiar only to judges and lawyers. Family Court procedures are slightly more relaxed than those of other courts: lawyers are not required to robe, or to stand when addressing the Court, and rules of evidence are less strict. But these adaptations are insignificant for many participants, and Family Court processes are still rooted in Päkehä cultural norms
781 The importance of familial relationships to Mäori society cannot be overstated; values like whanaungatanga go to the heart of what it is to be Mäori. This suggests that the Family Court and what goes on there is of central importance to Mäori
782 The Family Court imposes processes at the conciliation stage and the Court resolution stage that do not necessarily accord with
Mäori concepts of whänau (family), tikanga (customs), or kawa (protocols).
783 We appreciate that to refer to Mäori cultural values is to refer to a tradition and a moral system that may not be shared by all Mäori living in New Zealand today.
784 Whänau is much more than a concept of extended family, including grandparents, aunts and uncles. Whanaungatanga covers all relationships based on descent (from a common ancestor) and marriage (with spouses and affines, or in-laws).[219] It includes relationships between whänau. But it means much more than a kinship link by blood or marriage. It carries obligations for managing group property, mutual support, raising children, and organising occasional gatherings, or hui. Whakapapa has been described as the glue holding the Mäori world together, signifying the nature of relationships between all things. It implies mutuality and reciprocity of responsibilities.[220]
785 Flowing from, and supporting whanaungatanga, is tikanga Mäori, or custom. The following central values underpin tikanga Mäori:
• mana encompasses the political power ascribed through whakapapa and acquired by personal accomplishment;[221]
• tapu is sometimes described as “sacred or under ritual restriction”, but the concept can be seen more broadly in terms of a code of social conduct based on staying safe and avoiding risk; its political purpose is ensuring appropriate respect for hapü and iwi leadership, and keeping the ceremonial or special aspects of life separate from the quotidian; tapu is also centred in the spiritual;[222]
• utu is sometimes misconstrued as revenge for wrongdoing, but it carries a broader meaning of reciprocity, and maintaining relationships by imbalance of contributions (one is always under a duty to reciprocate). Utu denotes reciprocity between individuals, descent groups, and the living and departed;[223]
• kaitiakitanga denotes the duty of stewardship and protection, and is most often applied today to the obligation of whänau, hapü and iwi to protect the spiritual well-being of natural resources within their mana.[224]
786 These concepts inform hui protocols and the management of social interaction. Specific protocols vary from marae to marae, and some commentators claim references to tikanga Mäori are inappropriate, and that reference should be made to specific hapü or iwi.
787 Mäori concepts of whänau mean a child is not just the responsibility of its biological parents, but of the entire whänau, and that the child, in turn, is responsible to that whänau. Contrast this with the traditional Päkehä nuclear family.
788 Areas of substantive family law that prescribe a narrow range of rights and responsibilities between biological parents and children, such as the Guardianship Act 1968 and the Adoption Act 1955, exclude key figures in traditional Mäori families.
789 Discussion of substantive law reform is beyond this reference, but these areas of substantive law have consequences for procedure and processes that are our subject. Guardians, who are usually biological parents, have all rights in respect of their children. Consequently, when child-related issues come before the Court under the Guardianship Act, only the parents are offered counselling,[225] and only the parents are invited to the mediation conference with the judge.[226]
790 Some judges in various parts of the country allow other family members to attend mediation conferences. Broader-based hui are held under the umbrella of counselling, under section 10 of the Family Proceedings Act 1980. Such departures acknowledge Mäori cultural values, and we have drawn on these for our recommendations.
791 We have used earlier Law Commission publications, particularly the study paper, Mäori Custom and Values in New Zealand Law,[227] and the report Justice: The Experiences of Mäori Women,[228] as background. For the latter report, nationwide hui were held, and it was one of several papers prepared as part of the Law Commission reference on women’s access to justice. Its extensive research and consultation took four years, from 1995 to 1999.
792 We also used a report prepared for Professor Ngatata Love as part of the Law Commission reference on the structure of the courts, giving feedback from nine hui around New Zealand commenting on the entire court system.
793 As part of this Family Court reference, we held a small focus group hui in Wellington to which we invited people interested and involved in Family Court matters. Our recommendations incorporate that group’s ideas.
794 The group strongly recommended consultation through national hui, but we could not undertake this in the available time.
795 We have also had the benefit of research undertaken for other, related, purposes: Evaluation of Programmes for Mäori Adult Protected Persons under the Domestic Violence Act 1995,[229] and a draft of Guardianship, Custody and Access: Mäori Perspectives and Experiences, commissioned by the Ministry of Justice and Department for Courts from Strategic Training and Development Services and Ani Mikaere to background the review of the Guardianship Act 1968.
796 Our recommendations are, therefore, tentative. Their nature is such that any implementation would have to be explored locally, and would depend on the range of organisations and available expertise in a region.
797 One suggestion arising in several contexts is that Mäori Land Court jurisdiction be extended to cover family law matters. Investigating this possibility is beyond this reference. It will, however, be part of the Law Commission’s report, Structure of the Courts.
798 Even if Mäori Land Court jurisdiction were to be extended, we doubt it would be appropriate to compel Mäori to have family disputes dealt with in that forum; it would have to be a matter of choice. Parties to a dispute could agree on a forum, and in case of disagreement, there would have to be a default provision. Our conciliation services recommendations would be transferable to any conciliation service associated with the Mäori Land Court. Alternatively, Mäori conciliation services could remain attached to the Family Court, with hearings transferred to the Mäori Land Court if conciliation were unsuccessful.
799 We received several comments on Child, Youth and Family Services procedures; these include the failure to consult whänau before warrants to uplift children are obtained, and the way family group conferences are convened. Because these are CYFS-related, they are beyond our terms of reference. The Family Court is only involved in the Children, Young Persons, and Their Families Act 1989 matters after a Court application is filed, which occurs after a child has been uplifted urgently by warrant.
800 In most cases, family group conferences are held before an application is made, and the Court becomes involved only after a family group conference cannot agree. Family group conferences are convened and run by the CYFS care and protection co-ordinator. The Court has no control over family group conference convening or procedure.
801 There was criticism of the fact that community resources, particularly those of Mäori providers, are not used before, or instead of, Family Court procedures. The Family Court becomes involved only when a party comes to it for a counselling referral or to file an application, and has no prior knowledge of the party’s problem. It is clearly preferable, and less expensive, for parties to resolve disputes in the community before approaching the Family Court. It is the Government’s responsibility to decide whether it is best to fund community or court services.
802 Mäori want the Family Court to be cognisant of their cultural values. This demands processes appropriate to the tikanga of the iwi or hapü concerned.
803 This issue will not be addressed merely by contracting services to Mäori providers, although such services are likely to be more comfortable for Mäori clients.
804 It is important that providers are not only familiar with Mäori values and tikanga, but also have professional knowledge about, for instance, family dynamics and family violence, and counselling and mediation skills.
805 Continuing tension is likely to occur between such professional expertise and the power relationships in some whänau and hapü. It is crucial that Mäori Family Court service providers have enough expertise to distinguish situations where collective responsibility is in the best interests of parties and children, from situations where such collective responsibility would be unsafe because of family dysfunction; for example, the overall interests of the hapü must not be allowed to override the rights of a woman who seeks Family Court protection from a violent relationship or sexual abuse, and the right of her children to safety.
806 Some initiatives in the present system show what is possible.
Domestic violence programmes
807 Programmes set up for perpetrators, victims, and children under the Domestic Violence Act 1995 have been contracted to Mäori providers.[230] The goals of the Domestic Violence (Programmes) Regulations 1996 specify that Mäori values and concepts are to be taken into account, acknowledging the need for Mäori-developed programmes and services to reduce domestic violence within whänau.
808 The Ministry of Justice published Evaluation of Programmes for Mäori Adult Protected Persons under the Domestic Violence Act 1995 in June 2002. This report discusses two programmes for Mäori women. Both use kaupapa Mäori as the basis for a political, social and cultural analysis of domestic violence. The report identifies three key, best-practice principles for delivering domestic violence programmes to Mäori women: te reo Mäori me ona tikanga (valuing tradition and culture); kaupapa Mäori solutions; and individual as well as collective healing.
809 The report also shows what prevents some women attending programmes: lack of lack of transport, childcare and ongoing support.
810 We consider these principles and barriers to access crucially relevant to any delivery of Family Court conciliation services to Mäori.
Relationship Services
811 Relationship Services (RS) is responsible for other initiatives, and in consultation with Mäori, is developing a model consistent with whanaungatanga principles.
812 A trained Northland RS counsellor, Alva Pomare, has developed a process in keeping with tikanga Mäori. She started her RS work in the usual way, by taking referrals under sections 9 and 10 of the Family Proceedings Act 1980 and meeting with husband and wife.
813 She has since changed this process to incorporate a more holistic, Mäori approach. Instead of meeting the man and woman separately, she now meets with the man and his whänau, and the women and her whänau. These meetings usually include at least three generations, and often central hapü figures who may not be closely related but who are influential.
814 Once she has met with each “side” of the whänau, she decides if “mediation” involving both sides is appropriate. If it is, Alva sets up the meeting but does not run it. The tikanga is that of the hapü. Participants themselves decide when, where, and how the meeting will be convened. Meetings are usually held on marae but can be held elsewhere, including RS premises.
815 Before the whänau is brought together, Alva meets any children who are old enough to give their views.
816 The first part of the meeting is designed to inform participants about Family Court processes. Alva explains how the matter will progress through the Family Court should they be unable to resolve it.
817 The whänau hui then decides if this is an appropriate forum for resolving the dispute. If it is, they try to do so. If not, it is referred to the Court.
818 It may take up to ten sessions to resolve matters at the hui, should they opt to do so. Most disputes are settled like this. The tikanga allows distress to be dealt with so that business can be settled more quickly.
819 If the hui is unable to resolve the dispute, parties go back to their lawyers and proceed through the Court.
820 At the end of the process, Alva makes the standard report to the Court: points of agreement, or an indication that matters are unresolved.
821 Alva lives in the community and knows the people, which helps her get the right people to attend hui.
822 This model works well in Northland with its large Mäori population, and where there are many links across local hapü whänau. It would need adaptation for a more urban, less homogenous locale.
Qualifications
823 Relationship Services is also, in partnership with Mäori providers, developing a model to assist with professional affiliation and training issues.
824 All Family Court counsellors must have a professional affiliation that is usually acquired by completing academic qualifications and fulfilling membership requirements for a professional organisation.
825 These requirements can be obstacles for Mäori providers because there are not enough qualified Mäori counsellors.
826 Relationship Services can act as a bridge while Mäori counsellors get the necessary qualifications. It can provide professional oversight, training, assistance and, crucially, accreditation to its organisation, while counsellors continue to work for a Mäori provider.
827 In this way, enough Mäori will be upskilled so Mäori providers can eventually work independently. Te Korowai Aroha are also developing training for Mäori counsellors.
828 Without this initial partnership arrangement, it would be difficult to provide enough Mäori counsellors to set up Mäori conciliation services.
Future possibilities
829 These two examples of Mäori delivering tikanga-based services to Mäori show such services are possible and potentially successful. To highlight these examples is not to ignore other groups, such as the Lower Hutt Family Centre,[231] providing counselling and related services to Mäori Family Court clients.
830 The Commission has neither the knowledge nor experience to make specific recommendations as to how services can be made available to Mäori.
831 What we do know is that there is a need for Mäori Family Court conciliation services and that Mäori want them, but that there is a lack of community resources for providing a comprehensive service.
832 Provider availability would have to be assessed in each area, and training programmes set up to build on the skill and experience available already.
833 We believe a concerted effort should be made to train and contract Mäori Family Court counselling and mediation providers. Mäori providers could also be contracted to provide information sessions, and parenting and children’s programmes.
834 It might be difficult to offer these services in areas with a low Mäori population. Some families might, if it were an option, want to travel to family marae to involve whänau and consult a Mäori service provider.
835 It will be even longer before professional specialist services – psychologists, psychiatrists and specialist therapists – can be provided by Mäori for Mäori.
Recommendations
Mäori should be consulted about further changes to conciliation services and Family Court procedure that would better recognise Mäori values and protocols.
Conciliation services should, as far as possible, be contracted to qualified Mäori providers so that Mäori clients can choose these services.
836 A psychologist or social worker may have to prepare an assessment report if an application continues through the Court. Section 187 of the Children, Young Persons, and Their Families Act 1989 also provides for the possibility of a cultural or community report for care and protection proceedings. Child, Youth and Family Services employs qualified Mäori social workers and, if section 29 reports could be more readily obtained by the Court, it ought to be possible to match Mäori social workers with Mäori families.
837 There are not, however, enough qualified Mäori psychologists to offer a Family Court service for Mäori, and we hope iwi will encourage their young people to train for this work. Päkehä psychologists working with Mäori families must ensure they appreciate, and consult on, cultural differences.
Recommendations
Training needs for Mäori psychologist and report writer providers should be assessed.
Ways to meet these training needs should be investigated, possibly in conjunction with organisations providing conciliation services already, such as Relationship Services, and Mäori domestic violence programme providers.
838 If conciliation services fail to resolve a dispute and parties decide to take the matter to the Court, an enforceable order will be required. There are, therefore, limits to the extent Court procedures can be modified to comply with tikanga Mäori. But that does not mean Mäori cultural concepts cannot inform evidence that is the basis for the Court’s decision.
839 The Family Court currently observes certain formalities for introducing, beginning, and completing cases: announcement of the judge; everyone standing; judge and counsel bowing to each other; names of the parties announced; counsel introducing the party he or she represents. Lawyers and judges take these for granted.
840 It would be a small step to devise a protocol complying with tikanga Mäori in cases involving Mäori families. This could be standardised across Courts so that judges, Court staff and lawyers become familiar with it. The protocol could be used whenever parties chose to use it, and could, for example, involve a greeting, a karakia, and a brief mihi. The presence of whänau supporting each party would be expected.
841 A proposed training module for Family Court judges looks at adapting tikanga (customs) and kawa (protocols) to the courtroom. The course would also include an analysis of whänau-related kinship and rituals. It was also suggested that judges learn several korero (deliveries), and some karakia and waiata appropriate to Family Court work. We endorse this proposal and recommend its implementation.
842 Another main change necessary to reflect Mäori concerns is to admit into court whänau to support parties during settlement conferences or hearings. At present the Family Court is closed, without special permission from the judge, to all but the parties to the proceeding. Each party could request whänau support and the parties could agree about who might attend. Submissions we received indicated a need for the judge to control who is admitted so as to avoid one party being overwhelmed or dominated by substantial whänau support for the other party.
843 A further issue is whether those attending in a supportive role should, in certain circumstances, have speaking rights. Submissions suggest that it may be appropriate for kaumätua to speak on behalf of parties during a mediation conference (or settlement conference). It is likely that judges would want assurance that anyone speaking on behalf of a party was doing so with that party’s consent, and that the party agreed with what was being said.
Recommendations
Standardised introductory procedures complying with tikanga Mäori should be introduced into the Family Court. Judges and other Court staff should be trained in these procedures.
Legislation should be amended so judges can, at their discretion, permit whänau to attend Family Court settlement conferences and hearings.
844 The failure of judges, lawyers, Court staff, counsellors, and counsel for the child to pronounce Mäori correctly, and names especially, has been raised in published Law Commission reports and in submissions on our preliminary paper. This failure is demeaning and offensive to those whose names are mispronounced.
845 It would be simple to address. All those working in the Family Court should be trained in Mäori pronunciation, and if someone is still unsure about a name, it would be simple courtesy to ask the person.
Recommendation
Everyone working in the Family Court should be trained in Mäori pronunciation and Mäori cultural imperatives, to enable them to serve Mäori clients better.
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URL: http://www.nzlii.org/nz/other/nzlc/report/R82/R82-13_.html