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Taylor, Nicola --- "Family law matters. Inaugural Professorial lecture" [2023] OtaLawRw 3; (2022) 18 Otago LR 27

Last Updated: 7 December 2024

Inaugural Professorial Lecture: Family Law Matters

Inaugural Professorial Lecture Family Law Matters

Nicola Taylor*

  1. Introduction
I was promoted to Professor during the Covid-19 pandemic and, as a consequence, my Inaugural Professorial Lecture (IPL, finally delivered on 9 May 2023) was delayed by the lockdowns during 2021 and 2022. However, this had the unexpected bonus of enabling my presentation to follow closely on from the wonderful celebration of the Faculty of Law’s 150th anniversary (14-15 April 2023). It felt very special to be presenting the first IPL in the Faculty’s 150th year – as well as the first in the reign of King Charles III, whose coronation (on 6 May 2023) had immediately preceded my presentation.

II University of Otago Children’s Issues Centre

My academic career commenced at the University of Otago in 1995 when the Children’s Issues Centre (CIC) was established. I was appointed to work with Professor Anne Smith, the Centre’s Inaugural Director, to develop a new interdisciplinary centre devoted to advancing knowledge about children’s development, wellbeing and rights. Anne was a developmental psychologist and early childhood education (ECE) expert – a renowned academic who was a true scholar and thoroughly amazing woman. We could not have had a more inspiring leader and I certainly benefitted greatly from her mentorship, as did many others who worked in, or were associated with, the Centre.

Following the excitement of the CIC’s opening by the Governor-General on 20 July 1995, Anne and I sat down together to discuss how we would carve out the Centre’s research niche. We effectively had “a blank page” and wanted to avoid duplicating other initiatives already underway. We quickly settled on playing to our respective strengths –ECE and Law – and the new international developments in Childhood Studies and the United Nations Convention on the Rights of the Child 1989 (UNCRC), which New Zealand had ratified in 1993. In particular, we emphasised in our research the importance of directly ascertaining children’s own experiences and perspectives about key aspects of their daily lives – holding true to the Childhood Studies mantra of undertaking

* Professor, Faculty of Law, University of Otago. Delivered at the University of Otago, 9 May 2023.

research “with”, rather than “on”, children.1 We built into every research project ways of hearing from children themselves, as well as their parents or caregivers, and the professionals who engaged with them.2 This was novel at the time, as were empirical research studies in the family law field in New Zealand.

Under my leadership, Child and Family Law became an important strand of the CIC’s interdisciplinary research programme and, happily, this has continued to flourish through to present times. Some of the key highlights are discussed below. I would like to acknowledge the role that Dr Megan Gollop, the CIC’s Deputy-Director, has played in the Centre as we have worked together very closely on many children’s rights and legal research projects over the past 26 years. Our Centre Administrators have also been important in our success – initially, Rachael Brinsdon (1995-2002), and later Jocelyn Diedrichs from 2002 to 2018.

III Family Law “Matters”

The title of my IPL, Family Law Matters, involves a deliberate play on the word “matters” – in its meaning, firstly, as a noun, regarding the array of topics or issues relating to children, families and whānau that sit at the heart of my research career; and, secondly, as a verb, in relation to why Family Law matters? What is its importance and significance to the family justice and legal system and, indeed, to all of us as family members and citizens? I address this latter aspect at the end of this article, but turn now to discuss four of the key legal issues I have researched during my career that have influenced law reform, policy and practice in New Zealand and internationally: Children’s views and participation, Relationship property division, Relocation disputes following parental separation, and International child abduction.3

  1. Berry Mayall (ed), Children’s Childhoods: Observed and Experienced (Falmer Press, London, 1994); Allison James and Alan Prout (eds), Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood (Falmer Press, London, 1997).
  2. Early publications included: Anne B Smith and Nicola Taylor (eds) Supporting Children and Parents Through Family Changes (University of Otago Press, Dunedin, 1996); Nicola Taylor “The Voice of Children in Family Law” (1998) 18(1) Children’s Legal Rights Journal 2; Nicola Taylor and Mark Henaghan “Taking Children’s Views Seriously” (1997) 1(1) Childrenz Issues 11; Anne B Smith, Nicola Taylor and Megan Gollop (eds) Children’s Voices: Research, Policy and Practice (Pearson Education, Auckland, 2000); Nicola Taylor and Anne B Smith (eds) Children as Citizens? International Voices (University of Otago Press, Dunedin, 2009).
  3. Other issues on which I have undertaken research include: children’s rights in New Zealand family law judgments; evaluating the 2014 New Zealand family law reforms; the law of succession; care and protection; citizenship and nation building; NZ university graduate longitudinal outcomes; and ethical practices that enhance children’s wellbeing and safety in schools, residential care homes and disability services.

A Children’s Views and Participation in Family Law Contexts

The CIC’s emphasis on talking directly with children about their experience with, and perceptions of, family transitions led to the undertaking of our earliest and most longstanding line of family law-related research.4 This has primarily engaged with children from separated families (and parents, lawyers and judges) to explore their roles in the family/whānau, legal and court decision-making processes regarding the children’s future care and contact arrangements. This research series significantly influenced a more child participatory and child-inclusive approach to family law, policy and practice and included studies on children’s access/contact arrangements, children’s legal representation, and judicial meetings with Family Court judges.5
  1. Children’s Access Arrangements Following Parental Separation (1997-1999)
The focus of this study, funded by the New Zealand Law Foundation (Phase One) and the Foundation for Research, Science and Technology (Phase Two), was on the perspectives of 107 children and young people from 73 families who had experienced parental separation about the contact they had with the parent they did not live with.6 Generally, those children who were consulted about their post-separation living arrangements valued and appreciated this opportunity even though they

  1. Nicola Taylor, Anne Smith and Pauline Tapp Childhood and Family Law: The Rights and Views of Children (University of Otago Children’s Issues Centre, Dunedin, 2001); Anne Smith, Nicola Taylor and Pauline Tapp Children Whose Parents Live Apart: Family and Legal Concepts (University of Otago Children’s Issues Centre, Dunedin, 2001); Anne Smith, Nicola Taylor and Pauline Tapp “Rethinking Children’s Involvement in Decision-making After Parental Separation” (2003) 10(2) Childhood 201; Nicola Taylor, Pauline Tapp and Mark Henaghan “Respecting Children’s Participation in Family Law Proceedings” (2007) 15(1) The International Journal of Children’s Rights 61.
  2. Nicola Taylor and Megan Gollop “Children and Young People’s Participation in Family Law Decision-making” in Nancy Higgins and Claire Freeman (eds) Childhoods: Growing up in Aotearoa New Zealand (Otago University Press, Dunedin, 2013) 153.
  3. Nicola Taylor, Anne Smith, Megan Gollop, Michael Gaffney, Max Gold, and Mark Henaghan Access and Other Post-separation Issues: A Qualitative Study of Children’s, Parents’ and Lawyers’ Views (University of Otago Children’s Issues Centre, Dunedin, 1997); Megan Gollop, Nicola Taylor, Anne Smith, Michael Gaffney, Max Gold and Mark Henaghan “Facilitating Access: Children’s and Lawyers’ Perspectives” (1997) 490 Law Talk 28; Mark Henaghan, Nicola Taylor, Anne Smith, Megan Gollop, Michael Gaffney and Max Gold “Children’s Views on Their Parents’ Separation” (1998) 2(11) Butterworths Family Law Journal 277.

were not making the final decision.7 Those children who had little input into the decision-making process and/or had contact arrangements they did not like, and could not change, evidenced the most dissatisfaction.

  1. The Role of Counsel for the Child (1998)
This research was commissioned by the Department for Courts in 1998 to investigate children’s perceptions of the role of Counsel for the Child, particularly their understanding and experience of their contact with the lawyer appointed by the Family Court to represent them in care and protection proceedings and guardianship disputes.8 Twenty children and 12 lawyers were interviewed in two Family Court districts. In this era, children were often unaware of their lawyer’s appointment and never met with them, so we had to find children who knew they had a lawyer appointed to represent them and who they remembered meeting with. Their insights, as the quotes below show, included the importance of the role of their lawyer and what they particularly liked about their representation.9

They’re just like me [in court], except I’m not there. They’re stand-ins. ... I’d say he made a difference - sort of opened up a whole new thing for the Judge. ... There was Dad’s views and Mum’s views, but you need a third party to bring the Judge’s eyes round. ... He needs a third party in the middle to be me. (Craig, aged 13)

She’s always really kind and she always listens really hard and she’s really good at what she does. ... We get everything out and we know that we can trust her so that makes it easier. ... She’s really good at her job cos like she explains it all. Like some people just quickly say it briefly, but she sits us down ... and goes over it so we know what’s going on. (Michelle, aged 10)

These (and other) socio-legal research findings, together with the influence of Article 12 of the UNCRC, modernised the role of Lawyer for

  1. Megan Gollop, Nicola Taylor and Anne Smith “Children’s Perspectives of Their Parents’ Separation” in Anne Smith, Nicola Taylor and Megan Gollop (eds) Children’s Voices: Research, Policy and Practice (Pearson Education, Auckland, 2000) 134; Megan Gollop, Anne Smith and Nicola Taylor “Children’s Involvement in Custody and Access Arrangements After Parental Separation” (2000) 12(4) Child and Family Law Quarterly 383.
  2. Nicola Taylor, Megan Gollop, Anne Smith and Pauline Tapp (1999) The Role of Counsel for the Child: Perspectives of Children, Young People and Their Lawyers (Department for Courts, Wellington, 1999).
  3. Nicola Taylor, Megan Gollop and Anne Smith “Children and Young People’s Perspectives on the Role of Counsel for the Child” (2000) 3(6) Butterworths Family Law Journal 146; Nicola Taylor, Megan Gollop and Anne Smith “Children and Young People’s Perspectives on their Legal Representation” in Anne Smith, Nicola Taylor and Megan Gollop (eds) Children’s Voices: Research, Policy and Practice (Pearson Education, Auckland, 2000) 110.

the Child to require them to meet with the child they are appointed to represent, unless there are exceptional circumstances. This led to changes in the law10 and in the Practice Notes11 and Best Practice Guidelines12 governing the role of lawyers representing children.

  1. Judicial Meetings with Children (2012)
A 2012 study undertaken in collaboration with Associate Professor John Caldwell (University of Canterbury) documented the practice of all 53 Family Court judges regarding their meetings with children when parents’ disputes were being determined by the Court.13 Many judges reported very positively on their experiences of meeting with children (with Lawyer for the Child present). Some engaged in a “meet and greet” role with the child, while others used the opportunity to directly hear the child’s views and to better understand the child as a person:14

Putting that personal face to proceedings is invaluable and occasionally the children will come up with absolutely cracking phrases or information that puts a slightly different slant on things. ... I have really felt it’s a benefit. (Judge 45)

If you are able to make decisions that will perhaps change the life direction of a child, and have the confidence to do that, why not have the confidence to communicate with the person whose life you are changing? (Judge 33)

This research contributed to skills-based training for judges in child interviewing techniques and to the written guidelines I was invited by the Institute of Judicial Studies to prepare on how best to undertake judicial meetings with children for the Family Court Judges’ Benchbook in 2019-2020.15
  1. Influence on Law, Policy and Practice
Two salient themes emerged from this line of research on children’s participation. Firstly, children’s desire to have their views ascertained

  1. Care of Children Act 2004, ss 7, 55(4); Family Court Act 1980, s 9B.
  2. For the latest iteration, see Lawyer for the Child: Selection, Appointment and Other Matters (Family Court Practice Note issued by the Principal Family Court Judge, Wellington, 19 June 2020).
  3. For the latest iteration, see Lawyer for the Child Best Practice Guidelines (New Zealand Family Law Section Executive Committee, Wellington, 23 February 2018).
  4. Nicola Taylor and John Caldwell “Judicial Meetings with Children: Documenting Practice Within the New Zealand Family Court” (2013) 3 New Zealand Law Review 445; John Caldwell and Nicola Taylor “Natural Justice and Judicial Meetings with Children: Documenting Practice within the New Zealand Family Court” (2013) 7(11) New Zealand Family Law Journal 264.
  5. Taylor and Caldwell, above n 13, at 462-463.
  6. Nicola Taylor Children: Meeting with the Judge Update for Family Court Judges’ Bench Book (Chambers of the Principal Family Court Judge, Wellington, 2020).

and heard. They want to be consulted on matters that affect them and to be listened to, both at home within their family/whānau and in legal proceedings within the Family Court. Secondly, the important role that Lawyer for the Child plays in helping children to formulate and express their views, and in judges respecting the child’s right to participate by meeting with them as the decision-maker in their parents’ dispute. My studies have highlighted how skilled family justice professionals can facilitate and scaffold a child’s participation in the dispute resolution processes that follow parental separation.16 They have helped to influence reform of law, policy and practice to honour children’s right to participate through the widening of the requirement for the Family Court to provide reasonable opportunities for children (of any age) to express their views and for these views to be taken into account by the Court.17 This statutory provision is world-leading as other jurisdictions have yet to dispense with the traditional “age and maturity” criteria used to discount, or filter, children’s views in family law proceedings.

Understanding how children experience parental discipline, particularly smacking, provided new insight into the quest to reform s 59 of the Crimes Act 1961 to remove the defence of reasonable force for parents prosecuted for assaulting their child.18 To provide some objectivity in the heated public debate on reform of s 59, we also reviewed the extensive published research evidence on parental disciplinary strategies for the Office of the Children’s Commissioner in 2005.19 Two years later, following political cooperation between the Government and the Opposition, New Zealand became the first English-speaking country to ban all forms of physical punishment of children via the Crimes (Substituted Section 59) Amendment Act 2007)20 – 65 countries have now done so.

Part of a recent large-scale Parenting After Separation Study (PASS), funded by the New Zealand Law Foundation (2014-2020), asked 417

  1. Nicola Taylor “What Do We Know About Involving Children and Young People in Family Law Decision Making? A Research Update” (2006) 20(2) Australian Journal of Family Law 154; Nicola Taylor “Child Participation: Overcoming Disparity between New Zealand’s Family Court and Out-of-court Dispute Resolution Processes” (2017) 25 The International Journal of Children’s Rights 658.
  2. Care of Children Act 2004, s 6. See also: Family Court (Supporting Children in Court) Legislation Act 2021.
  3. Terry Anne Dobbs, Anne B Smith and Nicola Taylor “‘No, We Don’t Get a Say, Children Just Suffer the Consequences’: Children Talk about Family Discipline” (2006) 14 The International Journal of Children’s Rights 137.
  4. Anne B Smith, Megan Gollop, Nicola Taylor and Kate Marshall (eds) The Discipline and Guidance of Children: Messages from Research (Office of the Children’s Commissioner, Wellington, 2005).
  5. Nicola Taylor, Beth Wood and Anne Smith (2011). “New Zealand: The Achievements and Challenges of Prohibition” in Joan Durrant and Anne Smith (eds) Global Pathways to Abolishing Physical Punishment: Realizing Children’s Rights (Routledge, New York, 2011) 182-196.

separated parents in an online survey which steps (out of a possible 33) they had taken to make or change their children’s parenting arrangements.21 Most had taken informal steps (97%), with around two-thirds (67%) using family justice services funded by the government, lawyers (66%), and community or private services (57%). Once the parents had selected all the steps they had taken, they were asked to indicate which ones they found most helpful in making or changing their parenting arrangements by ranking the top three (see Table 1).

Table 1: Most helpful steps separated parents took to make or change their children’s parenting arrangements

Step Taken
Percent
Talked with their children and sought their thoughts, feelings and views
58.2%
Discussed with the other parent/party
48.6%
Sought legal advice
48.2%
Went to the Family Court
41.6%
Discussed with family members/whānau (extended family)
34.0%
Went to Family Dispute Resolution/Family mediation
32.0%
Attended a Parenting Through Separation course
31.2%
Discussed with friends
29.6%

Talking with the children and seeking their thoughts, feelings and views was the step that the greatest percentage of separated parents (58.2%) rated as one of the top three most helpful steps. Discussions with their former partner (48.6%), seeking legal advice (48.2%) and going to the Family Court (41.6%) were reported to be the next most helpful steps taken. This validates the role of family justice professionals and the Family Court in assisting separated parents to resolve their disputes over their children’s future care and contact arrangements. Importantly, too, it highlights just how much attitudes towards the significance and helpfulness of children’s participation have changed within families/ whānau over recent decades.22 This following quote from one of the parents we interviewed nicely reflects the Table 1 finding and aptly

  1. Megan Gollop, Nicola Taylor, Claire Cameron and Nicola Liebergreen Parenting Arrangements after Separation Study: Evaluating the 2014 family law reforms – Parents’ and caregivers’ perspectives - Part 1. (University of Otago Children’s Issues Centre, Dunedin, 2019); Megan Gollop and Nicola Taylor Parenting Arrangements after Separation Study: Evaluating the 2014 Family Law Reforms – Parents’ and Caregivers’ Perspectives – Research Summary (University of Otago Children’s Issues Centre, Dunedin, 2020).
  2. Nicola Taylor “Parental Guidance in Support of Children’s Participation Rights: The Interplay Between Articles 5 and 12 in the Family Justice System” in Claire Fenton-Glynn and Brian Sloan (eds) Parental Guidance, State Responsibility and Evolving Capacities: Article 5 of the United Nations Convention on the Rights of the Child (Brill Nijhoff, Leiden, 2021) 104.

summarises the approach many parents now take, which I, of course, thoroughly endorse:23

Firstly, my ex and I sat down, and we talked about what each of us wanted and what we thought would be best for the kids. Then we sat down as a family and discussed it with the kids and gave them an opportunity to tell us how they felt. ... We put it to them as, “Mum and Dad have talked about it and this is what we think would be best, but we want to hear what your opinions are”. (1501, Mother; Interview)

  1. International Collaborations on Child Participatory Issues
My first taste of comparative international research involved a study group I led in 2009 for the Childwatch International Research Network (comprising 50 global child research centres) to examine child participation in family law proceedings in 13 different countries.24 More recently, I co-edited a comparative Handbook on Child Participation in Family Law involving 17 jurisdictions, with colleagues from the Universities of Utrecht, Westminster and Leiden,25 and am an international consultant for a Danish research project Enhanced Child Involvement in Family Law (Roskilde University, 2020-2024).

The Ethical Research Involving Children (ERIC) project that I co-led with Professor Anne Graham26 involved international collaboration with the Childwatch International Research Network and UNICEF’s Office of Research Innocenti (Florence, Italy). We wanted to ensure that the flourishing involvement of children in research was supported by methods and tools that enabled it to be relevant, engaging and safe

  1. Megan Gollop, Nicola Taylor and Nicola Liebergreen Parenting Arrangements after Separation Study: Evaluating the 2014 Family Law Reforms – Parents’ and Caregivers’ Perspectives – Part 2 (University of Otago Children’s Issues Centre, Dunedin, 2020) 53.
  2. Nicola Taylor, Robyn Fitzgerald, Tamar Morag, Asha Bajpai and Anne Graham “International Models of Child Participation in Family Law Proceedings Following Parental Separation / Divorce” (2012) 20(4) The International Journal of Children’s Rights 645.
  3. Wendy Schrama, Marilyn Freeman, Nicola Taylor and Mariëlle Bruning (eds) International Handbook on Child Participation in Family Law (Intersentia, Cambridge, England, 2021); Nicola Taylor “New Zealand” in Wendy Schrama, Marilyn Freeman, Nicola Taylor and Mariëlle Bruning (eds) International Handbook on Child Participation in Family Law (Intersentia, Cambridge, England, 2021) 245.
  4. Director of the Centre for Children and Young People, Southern Cross University, Australia.

across diverse social, cultural and interdisciplinary contexts.27 Extensive research and consultation with the international research community led to the launch of the ERIC website (www.childethics.com) and resources in 2013. ERIC is now available in seven languages and the website is accessed in over 185 countries attracting on average 2,000 visitors each month. It houses a growing bank of international case studies, a specially curated library of the latest literature on ethical research involving children, webinars, and an expert blog with contributions from leading international scholars and others (including young people themselves) engaged in cutting-edge research involving children. The ERIC website has become an active hub for researchers across all levels of experience, as well as other research stakeholders like Human Ethics Committees, navigating some of the most vexed ethical issues as we seek to balance children’s participation and protection rights in very different contexts.

B Relationship Property Division

The second Family Law “matter” on which I have undertaken research concerns the Property (Relationships) Act 1976 (PRA). This establishes the rules for how the property of two partners is divided when they separate or when one of them dies. The underpinning principle is that “relationship property”, as defined by the Act, should be divided equally between the two partners when their relationship ends.28 This is regardless of their contributions, but subject to the limited exceptions of extraordinary circumstances, economic disparity and relationships of short duration.29

Despite dramatic demographic and social changes over the past four decades, including the ways in which relationships and families form and function, the PRA has not been comprehensively reviewed since its inception. However, in 2016, the Law Commission commenced a new project examining the PRA to see if it still meets the needs and

  1. Mary Ann Powell, Anne Graham, Nicola Taylor, Sally Newell and Robyn Fitzgerald (2011) Building Capacity for Ethical Research with Children and Young People: An International Research Project to Examine the Ethical Issues and Challenges in Undertaking Research with and for Children in Different Majority and Minority World Contexts Research Report for the Childwatch International Research Network (University of Otago Children’s Issues Centre and Centre for Children and Young People, Southern Cross University, Lismore, Australia); Anne Graham, Mary Ann Powell and Nicola Taylor “Ethical Research Involving Children: Putting the Evidence into Practice” (2015) 96 Family Matters 23; Anne Graham, Mary Ann Powell and Nicola Taylor “Ethical Research Involving Children: Encouraging Reflexive Engagement in Research with Children and Young People” (2015) 29 Children & Society 331.
  2. PRA 1976, s 1C(3). Section 11(1) further states that on the division of relationship property under the PRA, each of the spouses or partners is entitled to share equally in (a) the family home; (b) the family chattels; and (c) any other relationship property.
  3. PRA 1976, ss 1C(2), 13, 15.

expectations of diverse families in contemporary society. To assist with that review, and to inform their 2019 report and recommendations to the Minister of Justice,30 I received a grant from the Michael and Suzanne Borrin Foundation to undertake a two-phase project. Phase One involved a nationwide telephone survey ascertaining public attitudes and values about post-separation relationship property division.31 During 2018, 1,361 telephone interviews were undertaken with a representative sample of 1,011 people, with additional interviews with 150 Māori, 100 Pasifika and 100 Asian respondents. Phase Two examined how separated couples divided their property and resolved any disputes.32 During 2020, an anonymous nationwide online survey was completed by 378 people and 110 of these respondents also participated in a telephone interview about their experiences and perspectives.

Our key findings included:

  1. Law Commission Review of the Property (Relationships) Act 1976 - Te Arotake i te Property (Relationships) Act 1976 (Report 143, Wellington, 2019).
  2. Ian Binnie, Nicola Taylor, Megan Gollop, Mark Henaghan, Shirley Simmonds and Jeremy Robertson Relationship Property Division in New Zealand: Public Attitudes and Values. A General Population Survey. Technical Research Report (Michael and Suzanne Borrin Foundation, Wellington, 2018); Ian Binnie, Nicola Taylor, Megan Gollop, Mark Henaghan, Shirley Simmonds and Jeremy Robertson Research Summary - Relationship Property Division in New Zealand: Public Attitudes and Values. A General Population Survey (Michael and Suzanne Borrin Foundation, Wellington, 2018).
  3. Megan Gollop, Nicola Taylor, Ian Binnie, Mark Henaghan and Jeremy Robertson Relationship Property Division in New Zealand: The Experiences of Separated People. Descriptive Research Report (University of Otago Children’s Issues Centre, Dunedin, 2021); Megan Gollop and Nicola Taylor Relationship Property Division in New Zealand: The Experiences of Separated People. Research Report Summary supported by the Michael and Suzanne Borrin Foundation (University of Otago Children’s Issues Centre, Dunedin, 2022).

  1. Around 80% experienced emotional distress, anxiety and stress while dividing their property. Nearly three-quarters found it difficult dealing with their former partner and/or their behaviour or attitude.
  2. Participants most commonly needed legal information or advice (77%) or legal representation (62%).
  3. Lawyers were the first professional that the majority (75%) of the participants sought out for help, advice, or information.
  4. 71% of those who had resolved their property division themselves reported that their property division was fully, or partially, consistent with the law of equal sharing. This suggests that separated people are actually quite aware of the approach taken by the PRA and, generally, divide their relationship property in a way that is consistent with it.
  5. Contracting Out of the PRA
Couples can make their own agreement in advance about how they would like their property to be divided if they were to separate in the future. They can choose to opt out of the PRA with a formal contracting out agreement so the equal sharing law will not apply.33 These agreements (often colloquially called “prenuptial agreements” or “prenups”) can be made at any time by a couple already in, or about to enter, a marriage, civil union or de facto relationship. The agreement will be void (i.e., not valid or legally binding) unless certain requirements are met:34
These requirements allow couples the freedom to choose how to divide their property in a way they both see fit, whilst also ensuring a fair and just division of property between partners who may be of unequal bargaining positions. This helps to safeguard people from signing away their right to an equal share of relationship property without understanding their statutory entitlements under the PRA and the implications of the agreement for them. However, even when a contracting out agreement satisfies these legal requirements, the court can set it aside if satisfied that giving effect to it would cause serious injustice.35

33 PRA 1976, s 21.

34 PRA 1976, s 21F.

35 PRA 1976, s 21J.

Instead of entering into a formal contracting out agreement, couples may decide to just make an informal agreement, either verbally or in writing, between themselves. This will not be legally enforceable because it will not meet the legal requirements set out above. However, informal agreements can still assist couples to clarify their intentions regarding the division of their property should they later separate.

Our research found that it was not common for the participants to have had an agreement with their partner about how their property would be divided should they separate. Only 10% had made a formal contracting out agreement with a partner that had been certified by a lawyer. Even fewer (9%) had made some type of informal agreement, with most of these being just a verbal agreement. Sometimes participants had considered making an agreement, but had not discussed it with their partner and, for those who did discuss this, an agreement was not always made. In fact, it was far more common for couples to have not considered making any agreement at all. Overall, 72% hadn’t discussed making one and most (81%) had had no prenuptial agreement, either formal or informal.

Participants gave various reasons for why they did not make, or consider making, a contracting out agreement. Most commonly, they said they had had no need for one, particularly when each partner had brought assets of a similar value into the relationship or the couple had too little property to warrant making such agreement. Others did not feel their relationship was serious enough or were worried about the negative impact such a discussion might have upon the quality of their relationship by implying a lack of trust or an expectation that it might not last – “it might set an expectation that the relationship will fail.” The cost of seeking legal advice could be challenging, while some had opted to protect their assets with a trust. Others had wanted an agreement, but their partner had refused to have one. Concerns were also expressed that there could be little point in having an agreement (particularly an informal one) because it could be easily overturned, contested or invalidated, or might not be enforceable after a period of time.

Many participants regretted not having had a contracting out agreement and, in hindsight, wished that they had. Likewise, some who had only made an informal agreement, wished they had formalised it with lawyers to make it legally enforceable. Many (56%) had (or would have) an agreement in place for current or future relationships because of their experience of post-separation property division. A few people were adamant they would only contemplate entering a new relationship with such an agreement in place.

This research revealed the importance of, at the very least, considering whether a contracting out agreement might be useful. Such conversations can be awkward or difficult because these agreements are not currently mainstream. However, many of those who had experienced the division of their relationship property without one later became strong advocates for their use. Ideally, prenuptial agreements should be formal contracting

out agreements that comply with the PRA’s legal requirements, rather than informal verbal or written agreements, which our research found were not as helpful, or as likely to be followed, as formal contracting out agreements were. Obtaining independent legal advice, as is necessary with a formal agreement, also helps to ensure the agreement is fair for each partner and that no coercion is involved. This can better safeguard and protect each person.

Our research also identified the importance of ensuring that prenuptial agreements are clearly written, regularly reviewed and updated when necessary (e.g., when children are born, an inheritance is received, or new assets/debts are acquired). Thinking of these as “living documents” that need to be revisited will help ensure they remain fit for purpose, and therefore valid and enforceable, if ever needed.

The Law Commission’s review of the PRA concluded that the current contracting out provisions already strike “the right balance” as the PRA:36

... gives partners the freedom to make their own agreements about how their property should be divided on separation while protecting vulnerable partners by ensuring that they enter such agreements with informed consent.

Perhaps the time has arrived for greater public awareness and debate about whether contracting out agreements, and/or discussions between partners about them, should become more commonplace when new relationships form.
  1. Series of Six Research Highlights (2022)
In 2022, we published a series of six Research Highlights to help inform the public about issues relating to the division of relationship property that had emerged in our research:
  1. Law Commission, above n 30, Executive Summary at 16, para 67. The Law Commission did, however, recommend four improvements to the contracting out regime: use of audio-visual technology by lawyers to witness a partner signing an agreement; repealing the provisions relating to a model form agreement; enabling courts to set aside seriously unjust agreements wholly or in part; and courts having regard to the best interests of any minor or dependent children when considering whether to give effect to a non-compliant agreement or to set aside an agreement because it would cause serious injustice (para 68).
  2. Megan Gollop and Nicola Taylor Knowledge and Understanding of Relationship Property Division (Research Highlight 1) (Michael and Suzanne Borrin Foundation, Wellington, 2022).
  3. Megan Gollop and Nicola Taylor Relationship Property Division: Insights From Those Who’ve ‘Been There, Done That!’ (Research Highlight 2) (Michael and Suzanne Borrin Foundation, Wellington, 2022).

Property Division.39
With 80% of separated people reporting that they experienced emotional distress, anxiety and stress while dividing their property, we considered it important to disseminate our research findings to assist them through what can, for many, be a challenging process.

C Relocation after Parental Separation (2007-2009)

The third Family Law “matter” on which I have undertaken research with parents and children concerns relocation disputes following parental separation. These are widely regarded as one of the most difficult and controversial issues in family law internationally.43 They arise when, following parental separation or divorce, the resident (or shared care) parent seeks to relocate with the children and that move will have a significant impact on the contact the children will have with their other (left-behind) parent. In recent years these disputes have prompted greater domestic and international attention due to the higher rates of relationship breakdown, increased population mobility and debate about whether the courts should allow or restrict relocations.

Relocation is a special branch of the wider guardianship, day-to-day care and contact provisions within the Care of Children Act 2004. Guardians must consult and agree on any change to the child’s place of residence that may affect the child’s relationship with their parents or guardians.44 If a parent unilaterally moves the children domestically then the Family Court can order them back, and, if the destination is overseas, then this may trigger the 1980 Hague Convention on the Civil Aspects of International Child Abduction as it will involve a wrongful

  1. Megan Gollop and Nicola Taylor How the Relationship Between Former Partners Affects Their Property Division (Research Highlight 3) (Michael and Suzanne Borrin Foundation, Wellington, 2022).
  2. Megan Gollop and Nicola Taylor The Challenges and Impact of Relationship Property Division (Research Highlight 4) (Michael and Suzanne Borrin Foundation, Wellington, 2022).
  3. Nicola Taylor and Megan Gollop Prenuptial / Contracting Out Agreements (Research Highlight 5) (Michael and Suzanne Borrin Foundation, Wellington, 2022).
  4. Nicola Taylor and Megan Gollop Dividing Relationship Property: A Guide about Issues to Consider (Research Highlight 6) Michael and Suzanne Borrin Foundation, Wellington, 2022).
  5. Pauline Tapp and Nicola Taylor “Relocation: A Problem or A Dilemma?” (2008) 6(4) New Zealand Family Law Journal 94.
  6. Care of Children Act 2004, ss 16(2)(b), 16(5).

removal or retention of the child.45 Our relocation law applies to proposed moves within and between provinces of New Zealand, as well as to proposed international moves. The child’s welfare and best interests are the paramount consideration46 and there is no presumption for or against relocation in statute or in the case law. If the parents/guardians cannot agree, permission for the proposed relocation must be obtained from the Family Court.47 The courts scrutinise applications to relocate very carefully since the move, if allowed, will often detrimentally impact the child’s relationship and contact with the left-behind parent. “Reality testing” is therefore important to ensure that what is being proposed is in fact realistic – financially, and in terms of the child’s developmental needs and the burden of travel between homes/countries.

Our three-year study was funded by the New Zealand Law Foundation and supported by the Principal Family Court Judge and Family Law Section of New Zealand Law Society. It focused on ascertaining the experiences of 114 parents (41 fathers, 73 mothers) from 100 families across New Zealand who had experienced a relocation dispute, and 44 of their children (aged 7-18 years) from 30 of the families.48 Just over half (51%) of the families had their relocation disputes determined by the Family Court, or the High Court on appeal. The children spoke articulately about their experiences of their family situation and relationships, relocating (or not being able to move), their contact with their left-behind parent and the legal processes and professionals they encountered.49

1 The Search for International Consistency

There was considerable international interest in this research because many countries were searching for greater consistency in the judicial

  1. Care of Children Act 2004, ss 94-111.
  2. Care of Children Act 2004, s 4.
  3. Care of Children Act 2004, ss 46R, 48.
  4. Nicola Taylor, Megan Gollop and Mark Henaghan Relocation Following Parental Separation: The Welfare and Best Interests of Children (University of Otago Children’s Issues Centre and Faculty of Law. Dunedin, 2010); Nicola Taylor “Relocation Following Parental Separation: International Research, Policy and Practice” (2013) 1(1) Journal of International Family Law, Policy and Practice 90; Nicola Taylor “Relocation Disputes Following Parental Separation: Determining the Best Interests of the Child” in Elaine Sutherland and Lesley-Anne Barnes Macfarlane (eds) Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-being (Cambridge University Press, Cambridge, England, 2016) 280.
  5. Megan Gollop and Nicola Taylor “New Zealand Children and Young People’s Perspectives on Relocation Following Parental Separation” in Michael Freeman (ed) Law and Childhood Studies Current Legal Issues 14 (Oxford University Press, London, 2012) 219.

approach to relocation disputes.50 Some jurisdictions, like the English Court of Appeal, had generally allowed the mother’s application for the children to relocate due to the likely effect of a refusal on her “future psychological and emotional stability.”51 New Zealand, on the other hand, had always adopted a more individualised approach based on the desire to, where possible, keep both separated parents meaningfully involved in their children’s lives.52

Lord Justice Thorpe, architect of the English approach, and then Head of International Family Justice for England and Wales, convened the International Family Justice Judicial Conference for Common Law and Commonwealth Jurisdictions, at Cumberland Lodge near Windsor, in 2009, where I was invited to present our New Zealand research findings. This led to a further invitation to review, with Professor Marilyn Freeman (University of Westminster, London), all the published research evidence on relocation disputes and family mobility for The International Judicial Conference on Cross-Border Family Relocation, held in Washington DC in 2010.53 Our paper was one of the few reviews at the time of the empirical evidence on mobility and relocation and underpinned the Washington Declaration on International Family Relocation (23-25 March 2010) that resulted from the Conference and which remains a useful soft-law instrument today.

2 The Nexus between Relocation and Abduction

Relocation – the lawful means by which separated parents seek to relocate with their children – inevitably led onto my consideration of international child abduction; the unlawful means by which some separated parents choose to “relocate” with their children. As flipsides of the same coin, it has been important to consider the nexus between relocation and abduction.54 This includes, of course, the fact that the return of an abducted child, ordered by a court under the 1980 Hague Convention on the Civil Aspects of International Child Abduction can be followed by relocation proceedings in the state of habitual residence. However,

  1. Patrick Parkinson, Nicola Taylor, Judith Cashmore and Bill Austin “Relocation, Research, and Child Custody Disputes” in Leslie Drozd, Michael Saini and Nancy Olesen (eds) Parenting Plan Evaluations: Applied Research for the Family Court (2nd ed, Oxford University Press, USA, 2016) 431.
  2. Payne v Payne [2001] 1 WLR 1826; [2001] EWCA 166, para 32.
  3. Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1; [2010] NZFLR 884.
  4. Nicola Taylor and Marilyn Freeman “International Research Evidence on Relocation: Past, Present and Future” (2010) 44(3) Family Law Quarterly 317.
  5. Nicola Taylor and Marilyn Freeman “Using Research to Improve Outcomes for Abducted Children” in Gillian Douglas, Mervyn Murch and Victoria Stephens (eds) International and National Perspectives on Child and Family Law: Essays in Honour of Nigel Lowe (Intersentia, Cambridge, England, 2018) 329.

the very quest for consistency of legal principles that has proven so elusive in relocation disputes internationally, has been less problematic in the international child abduction field because of the existence of the 1980 Hague Convention and the role of Central Authorities, the Hague Network of Judges and the Hague Conference on Private International Law (HCCH) Permanent Bureau. This agreed international approach, and the infrastructure supporting it, provides a degree of co-ordination and coherence that is, as yet, absent from the relocation field.

D International Child Abduction

The final Family Law “matter” I therefore wish to address is international child abduction, on which much of my current research activity is focused. The Hague Convention on the Civil Aspects of International Child Abduction (of 25 October 1980) is an international treaty that aims to ensure that a child wrongfully removed or retained from their state of habitual residence in breach of rights of custody is returned forthwith so that issues of parental responsibility can be resolved by the courts in that country.55 New Zealand acceded to this Convention in 1991.56 Previously, the consequence of abduction was not only to remove the child from their home and significant connections, but also to require the left-behind parent to follow the abducting parent and bring an application for custody of the child in the foreign country. There was concern that this situation pitted the courts, laws and values of countries against one another. It was also complicated and costly.

The Convention provides for co-operation between signatory States.57 It sets up a Central Authority in each country to deal with applications for the return of children taken to or from each country.58 When a child is abducted from the country of their habitual residence in breach of a parent’s right of custody, the country the child is abducted to will, on application, make an order for the return of the child to their habitual residence. These are summary proceedings and the court will not consider the welfare of the child unless the parent who objects to the application for return establishes one of the very limited exceptions.59 The focus is on the question of jurisdiction, rather than on the child. Thus, the approach in this area of law is unlike most other family law disputes since the Convention is premised on the belief that the welfare of an abducted child is best advanced by immediate return to the country of their habitual residence. The onus is then placed on the courts there to

  1. Nicola Taylor and Marilyn Freeman “International Child Abduction” in Mavis Maclean and Rachel Treloar (eds) Handbook on Family Justice Systems (Edward Elgar Research Handbooks in Law and Society Series, England, 2023) 64.
  2. Guardianship Amendment Act 1991; now Subpart 4, Care of Children Act 2004, ss 94-111.
  3. There are currently 103 Contracting Parties that span every continent.
  4. The Ministry of Justice is New Zealand’s Central Authority.
  5. Care of Children Act 2004, s 106.

resolve issues concerning parental responsibility, residence/day-to-day care, contact and relocation. The HCCH, based in The Hague, monitors implementation of this multilateral treaty and promotes international co-operation in the area of child abduction.

My research, in collaboration with Professor Freeman, has addressed two of the Convention’s exceptions: i) Article 13(2): the child’s objection to return;60 and ii) Article 13(1)(b): the grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.61

  1. The Abducted Child’s Objection to Return
Abducted children have no general right to express their views in Hague Convention proceedings, but can object to being returned if they have attained an age and degree of maturity at which it is appropriate for the court to take account of their views. Professor Freeman and I had a British Academy grant in 2018 to investigate the use of this exception to return in contracting states to the 1980 Hague Convention – 97 family justice professionals from 32 countries completed an online survey; we conducted interviews with professionals and with family members, including previously abducted children; and we hosted specialist interdisciplinary workshops in Auckland, Genoa and London with 137 family justice professionals in 2018. Our findings showed the diversity of approaches taken to use of the child objection exception and the wide range of professionals involved in speaking with abducted children internationally. There was unanimous agreement by all research and workshop participants that an International Working Group be established to extend beyond the narrower issue of children’s objections in 1980 Hague Convention cases to the wider issue of the voice of the child and the role of children in Hague Convention cases more generally.

  1. Nicola Taylor and Marilyn Freeman “Outcomes for Objecting Children under the 1980 Hague Convention on the Civil Aspects of International Child Abduction” (2018) Vol XXII HCCH The Judges’ Newsletter on International Child Protection (Special Focus: The Child’s Voice – 15 Years Later) 8.
  2. Marilyn Freeman and Nicola Taylor “Domestic Violence and Child Participation: Contemporary Challenges for the 1980 Hague Child Abduction Convention” (2020) 42(2) Journal of Social Welfare and Family Law 154; Marilyn Freeman and Nicola Taylor “Domestic Violence as An Aspect of 1980 Hague Child Abduction Convention Return Proceedings” in Katarina Trimmings, Anatol Dutta, Costanza Honorati and Mirela Župan (eds) Domestic Violence and Parental Child Abduction (Intersentia, Cambridge, England, 2022) 39.

  1. The Impact on Children of International Child Abduction Where the Abduction has Taken Place against a Background of Domestic Violence or Abuse
Professor Freeman and I are currently conducting an international survey on parental abduction in the context of family violence, since increasing numbers of mothers are fleeing internationally with their children to escape an abusive partner – often to return to their homeland where they have family support. The courts then face a dilemma as the speedy return of the abducted child to their state of habitual residence, as required by the 1980 Hague Convention, means the child may be exposed to further grave risk of physical or psychological harm. The “grave risk” exception can be argued to avoid the child’s return, requiring the courts to weigh and balance the fundamental objective of the Convention with the possibility of protective measures in the home state to ensure the child’s safety on return.
  1. Other International Child Abduction Projects
I am working with the New Zealand Central Authority on their longitudinal data on incoming cases collected across a 10-year period from 2010-2019. This data tracks the involvement of the parties in court proceedings prior to, and following, the child’s removal and will aid understanding about the outcomes for abducted children in cases resolved by the courts, or voluntarily between the parties without court intervention. No other Contracting State has such data, so these findings are eagerly awaited by the international community.

In December 2022, after two years’ work, Professor Marilyn Freeman, Professor Helen Stalford (Liverpool Law School) and I launched a new child-friendly website FindingHome (www.findinghome.world) to help inform children and young people about international child abduction, the Hague Convention, and how the law and support agencies can assist children and families. This is part of new work I am involved in regarding children’s access to justice and legal literacy and is a logical extension to my longstanding interest in children’s right to be informed and to participate in family law proceedings. We were assisted by a Young Persons Advisory Group (YPAG) and the website is now available in three languages: English, French and Spanish. We have recently entered into a MOU with Missing Children Europe to take on the technical management and dissemination of the FindingHome website.

The Research Handbook on International Child Abduction: The 1980 Hague Convention, co-edited by Professor Freeman and I, was published by Edward Elgar in June 2023 as part of their Research Handbooks in Family Law Series.62 The book comprises 26 chapters by 35 specialist authors and provides a holistic overview of the law on international

  1. Marilyn Freeman and Nicola Taylor (eds) Research Handbook on International Child Abduction: The 1980 Hague Convention (Edward Elgar Publishing Research Handbooks in Family Law Series, England, 2023).

child abduction from prevention, through voluntary agreements and Convention proceedings, to post-return and aftercare issues. The Convention’s strengths, successes, weaknesses and gaps are discussed, and the Research Handbook concludes by addressing the need to tackle the challenges and nurture the Convention’s future operation.

In the absence of an international adjudicative body empowered to regulate the 1980 Hague Convention, regular meetings of the Special Commission have become important in promoting its consistent interpretation across all Contracting States. Eight Special Commission meetings have been convened to date (1989-2023) to monitor the practical operation of the Convention. They bring together government delegations and observers for several days of discussion in The Hague every five years. I was fortunate to be appointed as an observer for the Seventh and Eighth Special Commissions in 2017 and 2023, at which we achieved key resolutions on the value of evidence-based research to strengthen the effective operation of the 1980 Hague Convention.63

Immediately following the Eighth Special Commission I acted as Rapporteur at the Experts’ Meeting Nurturing the 1980 Hague Convention held in London on 19-20 October 2023. This addressed asylum, domestic violence and child participation issues in relation to international child abduction.

Currently, Professor Freeman and I are co-editing a new interdisciplinary book examining children’s identity issues in international family law contexts (such as adoption, surrogacy, care and protection, relocation, abduction, forced marriage, gender transitions, children in detention, sport, child soldiers, and unaccompanied migrant children).64 The book is framed by the child’s right to identity set out in Article 8 of the UNCRC: a right which seems to be hiding in plain sight and is largely unrecognised by law, policy and practice to date. We are highlighting when, and how, a child’s identity may need to be preserved or addressed when significant transitions or events are experienced that can have serious physical and/ or psychological impact.

IV Why Family Law “Matters”?

Most life events, like birth, death, and entering into or exiting from adult relationships, have legal implications. Usually these are mostly straightforward, but when issues or disputes arise it is Family Law that is looked to for legal entitlements and dispute resolution pathways. The more diverse family types and the impact of challenging circumstances, like poverty, family violence, substance abuse, mental health issues and parenting incapacity, can lead to more frequent and complex engagement

  1. Conclusions and Recommendations 81 (2017) and 102 (2023).
  2. Marilyn Freeman and Nicola Taylor (eds) Children and Young People’s Identities in International Law (Edward Elgar Studies in International Family Law, England, forthcoming 2024).

with lawyers and the Family Court. There are thus several key reasons why Family Law “matters”.

A Cradle to the Grave

Family Law addresses issues from the “cradle to the grave” or the “womb to the tomb” i.e., from before birth (for example, Assisted Human Reproductive (AHR) technologies; surrogacy) to after death (for example, challenges to wills and intestacies; testamentary promises). Family Law is therefore unavoidable in many aspects of our lives and, of course, becomes even more prominent when entering or leaving relationships or when disputes arise between parents/guardians regarding their children’s day-to-day care, contact, relocation or abduction. The State may also intervene in family life in situations of family violence, child protection, out-of-home care, or youth offending.

B High Stakes

Family Law “matters” because it is “high stakes”. It involves profoundly personal issues between partners and spouses, former partners, children, and other significant family/whānau members (such as grandparents) regarding their property, financial security, safety and protection, sense of autonomy, self-esteem, and need to feel heard.

C Gamut of Human Emotions

Family Law runs the gamut of human emotions. It has significance during times of joy and excitement, for example, when adults enter into new intimate relationships (like marriage or a civil union or de facto relationship); when surrogacy arrangements are made; or when a child’s birth is registered. However, Family Law also addresses people’s distress, fear and trauma when family violence occurs and a protection order and/or child protection and supervised contact measures are required. Abused, deprived, ill-treated or neglected children can also benefit from social work and police investigations, family group conferences and, when necessary, out-of-home care. Forced marriage and child brides also require legal intervention. Sometimes Family Law has to deal with people’s feelings of uncertainty, for example, in relation to the paternity of a child, or the location of a child abducted abroad. Grief, loss and heartbreak are common features of relationship breakdown (separation, divorce), or at the death of a loved family/whānau member. Family Law has to confront people’s anger, for example, over cultural disconnection and inequities arising from the uplift of babies, the use of warrants and out-of-home care, or from breaches of court orders. There can also be bewilderment, for example, over the continuing use of adoption to transfer legal status from a surrogate to the intending parents of the newborn child, or the lack of legal recognition for customary whangai arrangements. Finally, Family Law can encounter pragmatism, for example, when a couple contracts out of the PRA, or a person makes a will or establishes an enduring power of attorney.

D Bargaining in the Shadow of the Law

Many people do not use lawyers or the courts when an issue or dispute arises. Their knowledge and understanding of the law then becomes very important because it influences the way they go about discussing and resolving their concern. This is often described as “bargaining in the shadow of the law”.65 People essentially settle matters themselves in a way that takes into account what would happen if the matter went to court. Their discussions and negotiations, as well as any agreements reached with their (former) partner, may therefore be influenced by their knowledge and understanding of the law. We saw a good illustration of this in the PRA research findings I set out earlier.66 That’s partly why it is vital to have a commitment to disseminating research with members of the public to help inform and guide their decision-making.

E Rules and Discretion

Historically, Family Law’s ecclesiastical beginnings drove the application of certain rules – for example, fathers’ supreme right to the care and control of their (legitimate) children up to the age of 21; children under the age of seven being best placed with their mother when parents separated (“tender years” rule); or excluding a woman who committed adultery from custody of her children because of the detrimental implications of her conduct for her children’s moral welfare. Happily, times have changed and greater discretion was introduced into much of family law through the welfare and best interests of the child becoming the first and paramount consideration in 1926.67 The new discipline of psychology also became influential during the twentieth century, particularly in relation to the significance of children’s attachments to parents, caregivers and family/whānau members, and thereby helped to facilitate the transition from rules to discretion in Family Law determinations. This is particularly evident in the current emphasis on the welfare and best interests of a child “in his or her particular circumstances” in s 4(1) of the Care of Children Act 2004.

The application of rules to resolve disputes does, however, remain important in some areas of Family Law, for example, child support; and international child abduction and relationship property division where judicial discretion only becomes important when the application of the rule (like the prompt return of the abducted child to their state of habitual residence or the equal sharing of relationship property) would lead to an unjust or unsafe outcome.

  1. Robert Mnookin and Lewis Kornhauser “Bargaining in the Shadow of

the Law: The Case of Divorce” (1979) 88(5) The Yale Law Journal 950.

  1. The PRA research found that 79% of the survey respondents were aware of the equal sharing law; 48% divided their relationship property with their former partner themselves, and 71% of them reported their property division was fully or partially consistent with the law of equal sharing.
  2. For the latest iteration, see Care of Children Act 2004, s 4.

F Reflecting Social Change

Finally, Family Law “matters” because of its role in reflecting, and sometimes driving, social change. It has shifted far away from its early emphasis on marriage, children’s legitimacy and the supremacy of fathers’ rights to be far more responsive to evolving demographic and social trends.68 I am thinking here of such recent developments as the introduction of civil unions in 2005 and same-sex marriage in 2013, and the banning of physical punishment of children in 2007. Further reform of adoption, surrogacy and relationship property law is forthcoming to better reflect contemporary understandings of modern-day family life. So, too, is greater recognition finally being given to the impact of colonisation on Māori tamariki and rangitahi, whānau, hapu and iwi and the inequities they experience within our family justice system. For example, Tamariki Māori comprise 25% of the population of children under the age of 18 years, yet account for 68% of those living in the care of the state. Some progress has been made in incorporating Tikanga Māori into the Oranga Tamariki Act 1989, but much more needs to be done to ensure this is consistent across all family law statutes and is evident in legal and judicial practice. Family Law must also remain cognisant of New Zealand’s international law obligations and the challenges posed by increasingly diverse family structures, difficult social conditions, an aging population, and technological advances.

V Family Law at Otago

Law began being offered at the University of Otago in 1873, but Family Law did not then exist as a specialist subject. Nor was it a distinct part of the LLB degree when the new Faculty of Law was created on the University campus in 1959.69 In that era, separation, maintenance and guardianship were primarily administered, and taught, under the Destitute Persons Act 1910 and Domestic Proceedings Act 1939, with divorce only available upon proof of wrongdoing via restricted fault-based grounds.70 Family Law finally emerged as a specific university subject during the 1960s and 1970s and was initially taught by Alan Holden,71 then Bruce Robertson (a local legal practitioner),72 and Ian Muir

  1. Nicola Taylor “Care of Children: Families, Dispute Resolution and the Family Court” (PhD Thesis, University of Otago, 2005); Nicola Taylor “Establishment of the New Zealand Family Court” (2006) 5(7) New Zealand Family Law Journal 169.
  2. Anita Chan KC “Children’s Rights, Neuroscience and the Family Justice System – Are We Getting it Right?” F W Guest Memorial Lecture (27 September 2022), also published [2022] OtaLawRw 1; (2022) 17(2) Otago Law Review 207.
  3. KJ Keith “New Zealand Family Law and International Law – A Comment

with Some Questions” (2016) 47 VUWLR 5.

  1. Alan Holden was a teacher at John McGlashan College in Dunedin. He then studied law and taught Family Law, as well as Contract Law and part of the Legal System.
  2. Sir Bruce Robertson, Personal communication, 15 April 2023.

until his departure to live in London.73 Otago’s longest-serving Family Law lecturer – Mark Henaghan – followed, from 1980-2018. Mark recalls starting with several guest lectures in Ian’s 1979 Family Law class when employed as a Teaching Fellow in the Faculty of Law.74 Over the following 38 years, Mark’s charisma, passion and expertise firmly established Family Law as one of the most popular optional subjects undertaken by Otago law students. However, he not only inspired his students, but also the family justice community domestically and internationally and contributed enormously to the development of this key field of law. How very proud I am to continue this tradition and add my name to the distinguished list of Family Law Professors in Otago’s Faculty of Law.75

Te piko o te māhuri, Tērā te tupu o te rākau The way in which the young sapling is nurtured, determines how the tree will grow

  1. Ian Muir completed his LLM in the Faculty of Law before taking up the position of Senior Lecturer and teaching Family Law and Criminal Law.
  2. Professor Mark Henaghan, Personal communication, 30 July 2023: “My first guest lecture in 1979 was on the Family Protection Act. I was so excited I spoke very fast and finished the lecture in 30 minutes. I had to extend the time by telling stories!”
  3. I would like to extend my thanks to my family; research funders (University of Otago, Alexander McMillan Trust (Leading Thinker Chair in Childhood Studies), New Zealand Law Foundation, Michael and Suzanne Borrin Foundation, British Academy (London), Australian Research Council, UNICEF Office of Research Innocenti (Florence), Childwatch International Research Network (Oslo), and Government Departments); research partners and colleagues; postgraduate students (PhD, LLM, MBHL, MA (Childhood & Youth Studies), PGDipCCP, PGCertChIs); LLB and LLB (Honours) students; and the many family justice professionals, parents, family/whānau members, children and young people who have contributed their invaluable experiences and perspectives to my research studies over the years.

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