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Summary

Résumé

Cet article est consacré aux développements majeurs du droit de la famille au cours des 50 dernières années à travers le prisme des contributions clés de membres de l’ISFL, tels que John Eekelaar, Michael Freeman, June Carbone, Robin Fretwell Wilson et d’autres, sur les changements du droit de la famille dans le monde. Le présent texte examine les changements intervenus dans des domaines tels que le mariage, les enfants, le patrimoine, le financement et l’implication de l’État pour la protection des membres vulnérables de la famille.

L’article présentera les modifications majeures dans les domaines susmentionnés et montrera comment les écrits et les publications scientifiques des membres de l’ISFL, passés et présents, ont généralement été à la pointe de ces transformations. Ces changements ont un effet d’entraînement dans tous les pays du monde. L’article mettra également en évidence les domaines dans lesquels de nouvelles évolutions du droit de la famille sont nécessaires et sur lesquels les membres de l’ISFL écrivent actuellement.

INTRODUCTION

Fifty years, or half a century, is a long time in a fast-moving subject like family law. I was a second-year law student in 1973, when the youth of the world were very much in awe of the hippie movement, and we all had long hair to prove our credentials. It was a time of challenging the ideas of the past; a time when the feminist movement was in full swing, the civil rights movement was booming, and the anti-war movement was on the march. The concept of rights was at the centre of the challenges for change, and recognition of the diverse groups that exist in our societies.

It was a great time for the ISFL to begin its mission – to bring family law on to an international stage, so that ideas surrounding family law can be shared and worked on around the globe. It is significant that the first conference held by the ISFL was on the child and the law.

Summary

1. INTRODUCTION

In his seminal work on Family Law and Personal Life, Eekelaar describes rights ‘as being a complex amalgam comprising a claim of entitlement to an end-state necessary to protect an interest and an implication that the interest possesses sufficient weight to impose a duty to activate the means contemplated to achieve the necessary protection’. This theoretical framework of rights will be used to analyse when a grandparent can make a rights claim in relation to their grandchildren. The interest is the best interests and well-being of their grandchildren, and the sufficient weight will be the degree to which the current law in Aotearoa New Zealand recognises when there is a duty to activate the rights of grandparents to protect the well-being of their grandchildren.

The focus of this chapter is whether or not grandparents in Aotearoa New Zealand have any rights in relation to their grandchildren because of their status as grandparents. Aotearoa is the name Māori, the indigenous people, use for New Zealand. In 1840, the European settlers who came to Aotearoa New Zealand signed a treaty called Te Tiriti o Waitangi/the Treaty of Waitangi with a number of Māori iwi (tribes). There has been much written and debated about what the Treaty means. The New Zealand Court of Appeal in the Māori Lands case was asked to define what the ‘principles of the Treaty’ mean, as the phrase had been placed in statute. The Court held that the Treaty was the entry into a partnership between the Māori people and the British Crown. What that partnership means is still being worked out. In the High Court decision of Barton-Prescott v. Director-General of Social Welfare, which involved a dispute between a Māori mother who wanted to have her child adopted, and the Māori grandmother of the child, who wanted the child to be placed with her, the High Court said:

We are of the view that since the Treaty of Waitangi was designed to have general application, that general application must colour all matters to which it has relevance, whether public or private and that for the purposes of interpretation of statutes, it will have a direct bearing whether or not there is a reference to the treaty in the statute.

Summary

Résumé

Deux arrêts de la Cour d’appel néo-zélandaise témoignent dun changement d’interprétation et d’application de la Convention de la Haye relative à l’enlèvement international d’enfant. Cette Convention a été élaborée dans le but de protéger l’intérêt de tous les enfants grâce à une mesure dissuasive de retour rapide de l’enfant enlevé vers son lieu de résidence habituelle. Il reviendra ainsi aux tribunaux de ce pays de décider du transfert de la résidence de l’enfant. Les affaires entrant dans le champ de cette Convention de la Haye étaient, à Ibrigine, tranchées sur la base de documents. Les dispositifs de protection étaient interprétés de manière restrictive et l’accent était mis sur le retour des enfants.

Les deux récentes affaires ont nécessité respectivement trois et deux ans de procédure judiciaire. Dans la première affaire, l’enlèvement avait été effectué de manière délibérée pour contourner des décisions de justices rendues en Allemagne. Dans la seconde, l’enlèvement avait été effectué par crainte fondée de violences et d’insécurité financière. Dans les deux cas, le bien-être et l’intérêt supérieur de l’enfant ont été des facteurs déterminants pour ne pas renvoyer ces enfants vers leur lieu de résidence habituelle afin que les tribunaux de ce pays puissent décider de leur garde.

INTRODUCTION

Two major cases in New Zealand have taken novel approaches when applying the Hague Convention on the Civil Aspects of International Child Abduction. In Simpson v. Hamilton, although the Court of Appeal accepted that none of the grounds for not returning a child were made out, the Court still decided that the child should remain in New Zealand. In LRR v. COL, the Court of Appeal refused to order that the child be returned, after examining how the return would impact on the mother and, thereby, create an intolerable situation for the child. In both cases, the courts were determined to do what they thought was in the particular child's best interests.

HAGUE CONVENTION PROCEEDINGS IN NEW ZEALAND

The New Zealand Parliament has implemented the Hague Convention into domestic law, in the Care of Children Act 2004. Section 105 of the Care of Children Act sets out the jurisdiction requirements for what are commonly called ‘Hague cases’.

Summary

FAMILY JUSTICE REFORMS

New Zealand is beginning its third cycle of Family Justice Reforms. The first cycle was in 1980, when it moved to a specialist Family Court with a team of expert counsellors and judges who were given the authority to have mediation conferences. This was done in the hope that the parties would have the opportunity to discuss their differences, particularly over their children, in a civilised manner with the support of counsellors first, and then judges who ran mediation conferences. Lawyers were required under section 9 of the Family Proceedings Act 1980 when advising clients on matters involving their children to encourage reconciliation, and if that was not possible, to consider conciliation. The 1980 Reforms also recognised that if matters were going to go to court, children would need to be represented by what was then called ‘counsel for the child,’ whom it was mandatory to appoint if the matter was likely to go to a hearing unless there was to be no good purpose to it. The Court also had access to expert psychologists who would write reports for the Court and be appointed by the Court to inform it about the child and the child's well-being. The aspiration was that with what was called a ‘team’ approach, families could be supported through the difficult transition of a break-up.

In 2014, radical changes were made to the system put in place in 1980. The primary driver of concern was cost, namely the cost of counselling provided by the state, the cost of counsel for the child which was largely paid for by the state and the cost of legal aid for lawyers which, whilst only a loan that must be repaid, appeared to be growing in cost. There was a perception that lawyers were becoming adversarial and were dragging out proceedings in the Family Court and adding to the cost. The 2014 Reforms put in place a system whereby if it was a simple matter involving a matter of what is called contact in New Zealand (visitation in other countries), the parties are to represent themselves with no lawyer. State-provided counselling was removed and replaced by Family Dispute Resolution under the Family Dispute Resolution Act 2013. Parties had to pay to attend and the emphasis was on mediation run by private services.

Law and Policy in Modern Family Finance - Property Division in the 21st Century adopts a conceptual approach to address key questions about the legal division of property when a marriage, civil union, de facto relationship, or other close personal relationship ends. These questions include: which relationships should be subject to a statutory regime; which property should be shared; whether property held on trust should be included; how property should be shared; how economic disparity caused by the division of functions within the relationship should be addressed, if at all; whether, and if so to what extent, the interests of children of the relationship should be considered; whether parties should be allowed to contract out of a statutory regime and, if so, whether such contracts should be binding; and whether death should be treated in the same way as relationship break-down.The authors use New Zealand's current legislative framework as a basis for critical analysis and reflection. Despite New Zealand's Property (Relationships) Act 1976 being hailed as socially progressive legislation when it was enacted, there is concern in New Zealand that its property sharing regime no longer meets society's needs and expectations. However, issues of fairness, equality, and modern complexities in the division of relationship property are not unique to New Zealand. Other jurisdictions are facing similar problems, including Australia, England and some continental European countries.The inclusion of internationally recognised relationship property experts from England, Australia and Germany ensures the utility of the book for international audiences, making it of interest to law reformers, academics, the judiciary, the legal profession, and law students everywhere in the world.

Summary

THE NEW ZEALAND LAW COMMISSION'S REVIEW OF RELATIONSHIP PROPERTY

The New Zealand Government asked the New Zealand Law Commission (the Law Commission) (a body charged with carrying out research and consultation into areas of laws that potentially need reform) to carry out a review into relationship property law in New Zealand. As a result, the Law Commission produced a comprehensive Issues Paper which forms the basis for consultation and submissions on whether or not changes are needed to the law. This chapter will analyse four central issues pertaining to relationship property law: economic disparity, property held on trust, contracting out of the Property (Relationships) Act 1976, and children's interests in relationship property proceedings.

ECONOMIC DISPARITY

In 1976, New Zealand passed the Matrimonial Property Act 1976 (the ‘original Act ’). The original Act applied only to married couples, although there was debate at the time as to whether or not it should apply to de facto couples as well. The original Act was based on the principle that marriage is a partnership of equals, with each partner contributing in different but equal ways to the acquisition of what was then called ‘matrimonial property ’. The parties ‘home and family chattels were to be divided equally, no matter when they were acquired (whether before or after the marriage) unless extraordinary circumstances made equal sharing repugnant to justice, or in circumstances where the marriage was for less than three years in duration. Other assets acquired during the marriage also had to be divided equally, unless the contributions of one spouse were clearly greater than the other. The original Act set out the financial and non-financial contributions to a marriage in the following exhaustive list:

Summary

INTRODUCTION

Nigel Lowe is truly the father of international family law. His contribution to the development of international family law has been immense, not only at the doctrinal level, but also as a result of his invaluable statistical analysis, especially in regard to the Hague Convention on the Civil Aspects of International Child Abduction (the ‘Hague Convention’). Lowe's contribution is not only important for family law practitioners and academics around the world, it is also essential for the development and improvement of international family law itself.

This chapter will focus on the major themes of Lowe's work on international family law as it applies to children, with a particular emphasis on the need for cooperation and consistency between different countries, for robust administration processes, and for clear empirical data about how international family laws are actually working. The chapter will conclude with an examination of the importance of statistical analysis in determining the gaps that need to be addressed in the future to ensure the efficient and appropriate operation of the Hague Convention.

COOPERATION AND CONSISTENCY IN INTERNATIONAL FAMILY LAW

International family law is extremely complex and encompasses both ‘the laws governing families with a foreign element’ and ‘internationally inspired norms governing domestic family law’. To function in any effective manner, international family law requires a great deal of cooperation between judges from different countries and consistent administrative support. To this end, in his writing about international family law, Lowe has long stressed the importance of judicial cooperation across different legal systems and advocated ways in which such cooperation could be enhanced. As Lowe states, international disputes involving children ‘need bold and incisive action’ to ensure children are not left in jurisdictional limbo.

It can be all too easy for judges to simply deal with the case before them on their reading of the international convention and the papers before them without considering the wider international implications. This creates a number of problems. For example, in cases involving the Hague Convention, courts must trust that children will be safe if they are returned to their countries of habitual residence. This can only be achieved when judges cooperate with each other and understand the thinking processes of judges in other countries.

Summary

INTRODUCTION

When marriages, civil partnerships (known as ‘civil unions‘ in New Zealand), and de facto relationships end, the division of family finances is inevitable. Family finances consist of all of the parties ‘assets in existence at that time. The expectation is that the law will provide a fair method for dividing the parties‘ finances. What is fair or not differs between societies and across generations. Lord Nicholls summed up the subjective nature of fairness well in Miller v Miller; McFarlane v McFarlane when he said:

‘ Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. It is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular case.’

After an examination of the underlying purposes of dividing family finances, this chapter focuses on how best to divide family finances, drawing primarily on legislative and judicial analysis from New Zealand and England and Wales. This chapter argues that all the ‘fruits‘ of a qualifying relationship, in terms of both capital assets and human capital (income earning capacity), should be shared equally between the parties upon the conclusion of a qualifying marriage, civil union, or de facto relationship (a ‘qualifying relationship‘).

The chapter ultimately provides a case study of general international application as to how politicians and judges see their society, and what counts most in determining a share in family finances at the end of a qualifying relationship. It provides two possible formulas for ensuring that both parties receive their fair share going into the future.

THE PURPOSES OF DIVIDING FAMILY FINANCES

Law is a means of resolving disputes in a society. In order to effectively resolve disputes, the law must be clear in wording and purpose, it must be fair, and it needs to be accessible to all members of society, without the need for expensive litigation.

Summary

If there ever was a period of maturity in my professional life it was largely devoted to family finances either in silk, as a trial judge, or in the Court of Appeal. So when Mark Henaghan asked me to write a foreword for this book of collected papers I did not hesitate to agree, partly from my familiarity with the territory and partly from my regard for Mark and his ability to conceal his scholarship in waves of warmth and irreverence.

The Introduction explains the context in which the papers were written:

November 2015: the New Zealand Minister of Justice refers to the Law Commission a comprehensive review of the Property (Relationships) Act 1976 and requests recommendations for reform.

December 2016: the four editors convene the International Colloquium at which the papers were presented.

Ahead, as I write, lies the publication of the papers and the Law Commission's report and recommendations. I am in no doubt that this is how family law reform should be managed: Law Reform Commission expertise supplemented by international and comparative expertise to guide the legislators.

New Zealand seems to have a healthy readiness to legislate in this dangerous territory: dangerous because many politicians have had personal experience and leaders fear that public reaction to legislation will depress their prospects of re-election. New Zealand seems to follow the precept instilled in children here: if at first you don't succeed, try, try, try again. Would that the Westminster parliament would embrace the same spirit of adventure. For the UK, excepting Scotland, we have been 45 years without major reform and it has had to be the judges who have re-interpreted the 1970 statute to reflect social and other change.

As the editors write in their Introduction, the relevance of the themes analysed in the 15 papers is unrestricted:

‘ [T]he wider discussion to which this book contributes is an important one that must be ongoing. While the context in which these chapters were written was the reform of New Zealand's rather unique approach to the sharing of property in intimate relationships, we are confident that the ideas and debates discussed in this book will be of value beyond the shores of Aotearoa New Zealand.

Summary

INTRODUCTION

The breakdown of a marriage, civil union, or de facto relationship inevitably affects children of the relationship, particularly minor and dependent children. It disrupts their home and family life. How their parents divide their relationship property is likely to have a direct impact on their lives. They may have to move house, leave their neighbourhood and friends, change schools, and they may experience a financial setback. The question this chapter addresses is whether the interests of children should be taken into account in the division of property between their parents and, if so, how those interests should be accommodated. This chapter is concerned only with relationships ending during the joint lives of the parties. The property consequences of relationships ending on death of a spouse or partner are dealt with elsewhere.

In England and Wales, the welfare of any minor children of the marriage is the first consideration when courts exercise their discretion under the Matrimonial Causes Act 1973 (Eng & W) to adjust property between former spouses on divorce. Australia's Family Law Act 1975 (Cth) also has a discretionary regime in which the interests of children are a mandatory consideration. When exercising their discretion under these Acts, the courts in both jurisdictions consider the needs of the family as a whole, with the aim of achieving a fair or just outcome for the parties. Furthermore, these Acts deal not only with property division, but also with spousal maintenance and child support, as well as care of the children after divorce. Covering all these issues in one statute facilitates a holistic approach to the consequences of marital breakdown.

New Zealand differs from England and Wales, and Australia by having separate statutes for property division, spousal maintenance, child support, and care of the children. The Property (Relationships) Act 1976 (NZ) deals only with property division. The regime that this Act establishes is similar to a system known in the civil law jurisdictions as a deferred community of acquests.

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Global Perspectives 50 Years of Contributions to Family Law by Leading ISFL Members

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What are Grandparental Rights in Aotearoa New Zealand?

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New Zealand How New Zealand Courts Approach Difficult Hague Convention Cases

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New Zealand: Reform is in the Air

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Law and Policy in Modern Family Finance

New Zealand A Review of Relationship Property and the Māori Way of Life in Parenting Disputes: Changes Afoot

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Nigel Lowe and International Family Law: An Immense Contribution

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Table of Cases

Chapter 12 - Sharing Family Finances at the End of a Relationship

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Index

Foreword

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Frontmatter

Acknowledgements

Chapter 4 - Children's Interests in Division of Property on Relationship Breakdown

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Contents

List of Contributors

4 - Final Appeal Courts and Article 3 of the United Nations Convention on the Rights of the Child: What Do the Best Interests of the Particular Child Have to Do with It?

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