Faster way to untie the knot
An overhaul of the family justice system is designed to keep warring couples out of court. Andrea Vance reports.
THERE’S an old joke about family lawyers, that they are never entirely comfortable with a friendly divorce, any more than a good mortician wants to finish the job and have the patient sit up on the table.
The quote, from United States playwright Jean Kerr, makes Justice Minister Judith Collins laugh out loud.
This month she will oversee the implementation of Family Court reforms, the most dramatic since its inception in 1981.
To the anger of most of the country’s more than 1000 family lawyers, the changes are designed to encourage parents to leave the lawyers out of their feuds and settle custody disputes, school holiday and care arrangements on their own.
A free programme – Parenting Through Separation – will be their first port of call. If they need more mediation, a new out-of-court family dispute resolution service (FDR) steps in, costing almost $900.
And, if they still can’t agree, the couple are free to apply to the Family Court for a judge’s decision.
At court, three simplified ‘‘tracks’’ will dictate how a case is handled – with lawyers involved only in the later stages. A ‘‘standard’’ track is for a decision in which two parties could not agree through mediation. A ‘‘simple’’ track will apply to cases in which the two sides agree but want the court to enforce the decision, for example, through a consent order.
A ‘‘without notice’’ or ‘‘fast’’ track is for urgent cases in which there is a threat of violence or a risk that children could be taken overseas.
Applications, forms and affidavits, all of a standard size and form, can be downloaded from the Ministry of Justice website, in a move away from mountains of paper files.
Ms Collins says the new system will put the needs of children first, rather than those of embittered parents who use the court to take revenge or punish their spouses.
It is estimated 2000 fewer children will have to come before a judge. ‘‘Courts shouldn’t be about deciding whether people should separate or not; they should be used to solve legal issues and matters that require judgments.
‘‘Parents should not be in court over where their child spends Christmas each year . . . you don’t need lawyers for that.’’
ONE mother, who does not want to be identified, has been fighting a war through the Family Court since her daughter was born 10 years ago.
Three years ago, her ex-partner was awarded temporary care, and the legal fight escalated.
‘‘He has basically had me in and out of court when his nose got out of joint with me,’’ she says.
She believes her daughter wants to return to her – and says the court-imposed ‘‘lawyer for child’’ is a joke. Dissolving into tears, she admits the experience has left her daughter ‘‘a mess’’.
‘‘My daughter needs to get on with her life, and I want a final judgment, whether I lose contact with her or not.’’
One of the most frustrating experiences has been dealing with the girl’s appointed lawyer. Under the reforms, the court will now appoint counsel only if it has concerns about a child’s safety or wellbeing. A provision that allows for two lawyers – one to represent the child’s views, another to represent their interests – will be scrapped.
‘‘Get rid of lawyer for child,’’ the mother says. ‘‘She wants to come home but no-one is listening to her. Her lawyer has met her twice in 10 years.’’
Partially funded by legal aid, she cannot guess how much the case has cost her and the taxpayer.
‘‘There should be a lot of steps before you get to court.
‘‘[The reform is] a damn good thing.’’
Grandmother-of-four Louise Reid, 61, disagrees. A legal dispute between her daughter and expartner over their 11-year-old daughter has raged for eight years, ‘‘with varying degrees of anguish, frustration and disbelief’’.
She says these traumas have been mitigated only by the work of lawyers, particularly counsel for the child.
‘‘If a case has got to the point whereby it has necessitated involving the Family Court, then it is plainly obvious that these parents cannot agree on what is best for the child,’’ she told Parliament’s law and order select committee. ‘‘It becomes a case of who has the loudest voice, or can address the judge better.’’
Ms Collins insists cost-cutting is not the driving force behind the reforms. The changes will save as much as $15 million a year, after an initial investment of $14m.
Running costs for the Family Court have blown out by 70 per cent, from $84m in 2004-05 to $142m in 2010-11 – while the number of cases remained static. Family legal aid costs almost doubled to $53.1m from 2006-07 to 2010-11.
‘‘Too many people were going to court and costs were increasing without corresponding benefits for children and families,’’ Ms Collins says.
Critics argue the $900 FDR fee is beyond the reach of many parents, who are being forced into the process with limited access to legal advice and representation.
Labour justice spokesman Andrew Little says encouraging parents to resolve their differences out of court is a ‘‘noble cause’’. But he is concerned about FDR.
Divorcing couples are often ‘‘emotional and grieving’’ and often work through heartbreaking custody agreements only with the ‘‘sense’’ of a lawyer.
‘‘In many cases, at least one party will have very little access to advice. My concern is that they may well feel pressured into an agreement that they don’t feel comfortable with, or that they don’t fully understand the legal ramifications . . . It does look to me like a cost-cutting exercise. I hope I am wrong in that.’’
His fears are echoed by the Human Rights Commission, which says the imposition of a fee ‘‘may be a significant barrier for some people’’. Studies of a compulsory system introduced in Australia in 2008 show the risk of overlooking family violence or underestimating its impact are heightened in the dispute resolution process, the commission reported to Parliament.
VICTIM and female advocacy groups – including Papamoa’s Silent Injustice Group – are also worried. In evidence to the select committee, they recalled the case of Kathryn Coughlin, shot dead by husband David as she left a Family Courtordered counselling session in 1991. ‘‘It is . . . dangerous for some abusers to know where a woman will be at a certain time.’’
In another case, the Family Court awarded abusive husband Alan Bristol custody of his three children, Tiffany, 7, Holly, 3, and Claudia, 18 months. Twenty years ago this month, he killed them and then himself.
The tragedy prompted a law change, requiring judges to undertake careful risk assessment. The overhaul will undo this provision.
‘‘I can’t see why they want to undo something that’s been doing so well and go backwards,’’ the children’s mother, Christine, said last year.
Another vulnerable group fears
If a case has got to the point whereby it has necessitated involving the Family Court, then it is plainly obvious that these parents cannot agree on what is best for the child. It becomes a case of who has the loudest voice, or can address the judge better.
Grandmother-of-four Louise Reid
being marginalised by the reforms. CCS Disability Action says disabled children are at ‘‘acute’’ risk of abuse.
‘‘Faced with major accessibility barriers, some disabled people could struggle in the proposed Family Disputes Resolution Service, without legal representation,’’ chief executive David Matthews said.
Ms Collins agrees vulnerable people exposed to domestic abuse need protection, and they will continue to have immediate access to the court and legal representation without going through the FDR process.
The definition of psychological harm will be expanded to include financial and economic, and the maximum sentence for breaching a protection order has been increased to three years, she points out.
The Law Society believes the legislation ‘‘significantly restricts’’ the right of lawyers to appear in the Family Court. Family law section chairman Garry Collin says New Zealand – once a world leader in this area – ‘‘now stands almost alone in limiting access to legal assistance in Family Court processes’’.
The professional body argues the changes make the system complex and ‘‘extremely difficult for ordinary New Zealanders to navigate’’.
And there are questions about resourcing and whether court staff will be swamped trying to assist unrepresented litigants.
Justice secretary Andrew Bridgman was forced to apologise to Parliament in 2012 after a shambolic attempt to centralise family cases in Auckland.
The majority of submissions to the law and order select committee were from barristers and solicitors – and their concerns are often dismissed as financial self-interest.
During a public consultation exercise undertaken by the Ministry of Justice in 2012, many Family Court users voiced concern about the performance of judges and lawyers.
‘‘Some lawyers and judges are acting poorly, causing greater delays, increased costs and destroying children’s lives and destroying families,’’ one counsellor said.
Another commented: ‘‘Family Court lawyers might drive litigation in order to generate more work and therefore more income by fuelling a fight between mother and father.’’
Almost two-thirds of respondents (61 per cent) said they were advised by their lawyers to go to the Family Court. Dissatisfaction was a common theme, with one commenting: ‘‘Four lawyers – all a complete waste of time and money.’’
University of Otago law professor Mark Henaghan questions the figure, suggesting that only 10 to 15 per cent of cases go to a full court hearing. ‘‘I have no problem with the Government investigating whether they are spending the money wisely . . . some of the hearings could go on a very long time and there has to be controls on how much evidence is admissible and access to counselling.
‘‘But the cost-benefit analysis was never done properly . . . shortterm savings can leave to longterm costs. It was just cutting for cutting sake.’’
Mr Little disputes the idea that family lawyers are putting greed first, saying most have a ‘‘deep personal commitment’’.
‘‘I have never met a wealthy family lawyer . . . your average family lawyer is not living in great salubrious wealth. They are grinding out a living.’’