Family law in a bicultural society, Vivienne Ullrich

Family Law Policy in New Zealand
Mark Henaghan and Bill Atkin (eds),
Oxford University Press, $49.95

Some people will admit to not knowing how to boil an egg or change a tyre, but few will admit to not knowing about families. That is the conundrum for any debate about family policy. We need more than rhetoric and anecdotes. This is a book which provides facts and informed opinion about family law and family policy. The book focuses on the legal relationships among family members and between families and the State. It includes a chapter on Maori aspirations and another on assisted reproduction. It explains and critiques the law as it is and the way it has evolved into its present form. It is not the task of this book to provide a more comprehensive treatment of family policy which takes account of demographic and economic change.

Who are your parents? Who do you live with? Who do you invite to Christmas dinner? The answers to these questions may be a way of defining your family in the rather haphazard way necessary to reflect our personal experience in the 1990s. Yet the concept of family policy implies a consistent overall theme in which the State has an interest. Today the interest of the State is more likely to stress money rather than morals.

New Zealand has traditionally, taken a rather pragmatic approach to law reform. Comprehensive research prior to a reform proposal is rare. The legislature is more likely to rely on representations from certain individuals or groups who have a specialist knowledge of the area. In some respects this book is forced to fall into the same trap. There is so little research data available. We have a reasonable database of statistics from the census and a restricted range of statistics related to welfare benefits and Court processes, but we have very little hard data about how families function. We probably have more information about families in crisis than we have about families that are functioning well. Can we propose solutions for crises if we do not know why things go well?

Although chapters have been contributed by different authors there are several themes which recur. One is the belief that we should take a child-centred approach to family policy and provide consistently that the welfare of the child is the paramount consideration. Objectification and commodification of children is to be avoided. Another theme is the perception that in present times a primary motivation of the State in any area of law reforms to reduce the financial cost to the State. This is explicitly stated in relation to the Children, Young Persons and Their Families Act and the Child Support Act. It is also raised as a factor in moves towards a primary caregiver principle in custody disputes. Another theme is a plea for legislative guidelines in new areas of activity such as reproductive technology so that the Courts are not left inappropriately in individual cases to determine what is in effect, social policy.

The chapter on Maori aspirations is essential reading and a gentle education, for example: Grandparents concentrate particular attention on three activities which parents often avoid: fostering children’s self esteem by praise and expressions of affection, developing verbal skills through storytelling and discussion, and talking about sex and emotional matters. Parental avoidance of these tasks is often stigmatised by Pakeha committed to the idea of exclusive parental responsibility, as laziness or neglect. In many cases it is more fairly attributed to the internalisation of a pattern of child rearing which assigns these tasks to other relatives, especially those of the grandparental generation. This reminds us that societies are like ecosystems and once damaged difficult to put together again.

The chapter on the Child Support Scheme highlights many of the key policy issues. It was clearly written before the scheme had been under way long enough to assess it in practice. And yet it raises most of the issues which have now surfaced as problems – the failure to take account of the income of the custodial parent, the bias towards a traditional family form, the special problems of reconstructed families, the inflexibility of the formulae, and the delivery difficulties.

There are many ideas in this book I endorse and many I would like to challenge. I hope others are provoked to continue the debate.


Vivenne Ullrich is a Wellington barrister.


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Posted in Māori, Non-fiction, Politics & Law, Review
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