Family Court Proceedings Reform Bill – the dialogue continues

Law News asked the immediate past convenor of ADLS’s Family Law Committee, Maria Kazmierow, to respond to Justice Minister Judith Collins article “The Facts about Family Court Reform”, published in Law News, 12 April 2013.

Current multi reform of the Family Court is focussed on the Family Court Proceedings Reform Bill (“the Bill”). Since its introduction into Parliament on 27 November 2012, the Bill has been the subject of scrutiny,considerable commentary, and truncated consultation.

The Justice and Electoral Select Committee Submissions process during February-March 2013 reflected consultation at its most frenetic and compressed phase of activity. Submissions in person to the Select Committee were significant.

Hundreds of individuals and organisations made submissions in person over five days in Wellington, Christchurch, and Auckland. 385 made written submissions to the Select Committee. The Bill provoked a major response, despite the provision of a little over four working weeks for the filing of submissions.

In the context of Law News,the Bill is generating its own dialogue.

Immediately upon ADLS’s Family Law Committee’s appearance before the Select Committee in support of their written submissions, Brian Keene QC wrote an article “Whither the Family Court”(Law News, 15 March 2013). The article was an intelligent and articulate analysis of the impact of the Bill, informed by ADLS’s own and many others submissions.

On 12 April, a month later, the Honourable Judith Collins, Minister of Justice (“the Minister”), responded to this specific article by Mr Keene, in Law News. It is a lengthy and considered response – and to date the only detailed response of the Minister to the considerable debate generated by the Bill this year. (The only other media response on the Bill from the Minister was by radio and in the New Zealand Herald, 30 March 2013,“Government backdown follows attack by family judges”.) Such dialogue is to be welcomed, and this article is a response.

The nature of the Minister’s Law News column on 12 April is intriguing, given the New Zealand Herald article which suggested the Government was backing down in direct response to the Bill submissions made by Family Court Judges.

Our latest response to the Minister is cognisant of what the Minister is reported as having told the NewZealand Herald: that her “officials had listened and would recommend changes that would address most of the Judges’ concerns. There would be more involvement by lawyers than indicated… There are likely to be opportunities for lawyers to be involved in relation to children as well”.

This article and the dialogue it represents is informed by both (apparently) mixed messages from the Minister.

IN RESPONSE TO THE MINISTER

WHY REFORM THE FAMILY COURT?

1. Cost driven reform

It is acknowledged that in times of austerity the costs associated with the second busiest Court in New Zealand need to be looked at closely. A major organisation such as the Family Court can always assess how to better meet the needs of those it serves: the families of New Zealand.

However, the importance of cost cutting in motivating the Family Court review has been well documented in several review documents, including:

 – Minister Powers’ Family Court Review 2012;

– April 2012 Expert Reference Group – Aims;

– July 2012 Regulatory Impact Statement reviewing the Family Court – particularly its focus on urgent cost reduction;

– October 2012 Family Court and Legal Aid Reform Overview (avoiding reducing eligibility threshold reductions for legal aid in favour of removing legal aid funding for representation in most Care of Children Act proceedings) and;

– 2012 Cabinet briefing paper on Family Court Review: projecting cost neutral Family Dispute Resolution (“FDR”).

2. Too adversarial Family Court– a lawyer problem and parent answer?

The Minister states that the Family Court is “harmful to children” and “too adversarial”. Lawyers in particular are blamed for being too adversarial. As one submission on the Bill put it, “Lawyers are the agents of mischief”. The Minister argues that the Bill and its reforms are the solution.

However, the following should be borne in mind:

• Family Court is an adversarial justice system, not an inquisitorial model. A change from the adversarial model is not contemplated by the Bill.

• Family Court practitioners are currently bound by a duty to promote conciliation and reconciliation under section 8 of the Family Proceedings Act,a duty that no other branch of lawyers has. This is a significant non-adversarial focus that this Bill is eliminating.

• Counselling: Six state-funded sessions prior to Court screen out many matters that may otherwise end up in Court. This is proconciliation. By being reduced to one session, the reform does not promote conciliation.

• Mediation is currently state-funded and settles many matters. Judges have estimated that settlement currently results in 65–89% of referrals (Christchurch Family Court Judges Supplementary 1, Submissions Family Court Proceedings Reform Bill). The facts support that the current adversarial system works well to settle matters in a parental self-determined way.

• For the small number of matters which do progress through the Court system, the vast majority (74%) are settled by consent orders or in formal proof hearings (20.6%) where there is no defence raised. Only 5.4% required a defended hearing. Again, the facts show that whilst the current system is adversarial, it works well to settle matters in as less inflamed a way as possible. This suggests that the Court and its lawyers are pro-conciliation.

The Minister proposes that the Bill is the solution for the perceived problem of a too adversarial Court and Lawyers. Thus, the solution: prohibiting lawyers.

The Select Committee will be reporting on 4 June 2013, so it is unclear what form the Bill will take by then. This is particularly so given the Ministers tantalising hints in the New Zealand Herald about “more involvement by lawyers than indicated”, and the potential demise of clause 7A regarding self-represented litigants/prohibition on lawyers assisting parents in most parenting proceedings.

The Minister in her Law News article comments that “If court action is still needed, a judge will decide if legal representation is helpful, or not…” It is unclear if this is a hint of things to come, or if this is a reference to existing provisions in the Bill where Judges may refer those parties who are entitled to legal aid legal advice for consent orders if appropriate.

The demise of clause 7A would of course be the greatest contribution to promoting a less adversarial and less harmful family court.

As noted in Judicial submissions to the Select Committee, “parents who are locked in disputes have usually lost all sense of balance in relation to their children’s needs, find difficulty in distinguishing their children’s needs from their own, and are frequently emotionally very volatile…We are concerned that explosive, violent incidents are more likely to occur, in the Court room precincts, and in the home, with the predictable outcome of an increase in domestic violence (most seriously towards women and children) and an increasing risk to the safety of Court staff and Judges”. (Judge Murfitt, Family Court Proceedings Reform Bill Submissions, 8 February 2013, pp 3-4.)

3. The Expert Reference Group (“ERG”) are the key drivers behind the Bill.

The ERG and their April 2012 report provided a substantive report to the Ministry of Justice on the then Minister of Justice Simon Powers’ “Family Court Review”. At 65 pages, the nine experts’ recommendations are authoritative,considered and measured.

The Minister states that the ERG are the “key drivers behind the Bill”. Ironically, not all the ERG recommendations were adopted. Major reforms that have been adopted by the Bill were never considered by the ERG.

Specifically, what was never consulted on with any stakeholder group –other than an online survey with 121 users of the Ministry of Justice website -were the two major reforms in the Bill:

Self-Represented Litigants – clause 7A; and

User Pays for the full costs of alternative dispute resolution.

The ERG’s submissions on the Bill confirm this. “The Cabinet Paper and RIS state that the reforms contained in the Bill‘ largely align with those in the Expert Reference Group in its report of 27th April 2012. This is incorrect…In particular, the removal of legal representation and the FDR fee.” The ERG do not support either reform proposal.

4. Change – it’s simple?

With respect to the Minister, the drivers of reform of the Family Court are not “that simple”. Many individuals and groups who made submissions on the Bill point to cost-saving as being inconflict with and undermining the other policy drivers, notably: “efficiency and effectiveness”, “being less adversarial”, and “protecting vulnerable people”. For example:

$897 User Pays FDR – on the one hand:

• It cuts costs (No state funded mediation costs).

But:

• It is a barrier to access to justice:

– Parents who cannot or will not pay, are prevented from accessing FDR;

– Parents who cannot or will not pay, are prevented from accessing court (except on urgency) as non-payment is not ground for an exemption;

– Costs may blow out:

Social services/medical/police costs with familial dysfunction as families conflict;

Court costs, as without notice applications increase due to increased conflict with no access to FDR.

Self-Represented Litigants – on the one hand:

• It cuts costs (no state legal aid costs for Care of Children Act matters,limited exceptions section 71).

But it would see:

• A decrease in efficiency and effectiveness, increase the time for resolving matters, clogging up the system of justice;

• increased vulnerability and exposure to violence: increased violence, anger and frustration;

• impaired access to justice for the vulnerable:

 – Private fee payment for legal assistance increases to the point where defended proceedings discriminate against the poor, inarticulate, illiterate, ESOL, victims of domestic violence,mentally ill, substance addicted, those extremely young or old, or those fearful of public speaking, or those parties with other significant power imbalances in their relationships.

 – Child vulnerability is heightened by the absence of lawyers for the parties (as well as lawyer for the children).

• Costs: Inefficiency and increased time in the Court system, and increased administration/ security costs may make any legal aid cost savings negligible;

• Costs may blowout: for social services/ medical/police costs with familial dysfunction as families conflict; and in court where Without Notice applications increase due to increased conflict. 

PARENTING DISPUTES

Mr Keene references the wider state interest in the stability of family life, and proposes that the Family Court is the court of ordinary New Zealanders.

This is legitimate given it is the second busiest court in the country.It is where most ordinary New Zealanders are likely to have a “court experience” and judge what a court is like. On this basis, parenting disputes, no matter how “simple and private”, always have a public and State interest component.

The Minister and Mr Keene may not be far apart in their views – it may simply be a matter of terminology.

Where there is a gap to mind, is in the statistics provided by the Minister in her response.

4,000 out of 26,000 family disputes will be resolved by FDR

From what empirical study did these predictive statistics come? None is quoted, and no pilot study has been undertaken. FDR has not been trialled, as it has not yet even been defined.

Additionally, from what empirical study did the predictive statistic come that “1,200 families (approximately 2,000 children) will no longer have to go to Court as a result of family dispute resolution” (Q+A, 2 August 2012, p3). Is this an August 2012 variant of the 4,000 statistic above?

April 2012 Questionnaire: (of 121 Family Court users out of 66,979 applications (2009/2010)

The Minister cites in support of her position:

• 74% of Family Court users preferred to resolve their dispute away from the Court

• 61% of Family Court of respondents’ lawyers had advised them to take the Court action in the first instance, rather than attempting to resolve their dispute themselves.

These statistics comprise 0.18% of Court users. 121 individuals’ Family Court User unique experiences and perceptions are respected, however, for the Minister to claim 0.18% of Court users as representative of the majority of the experiences of family court users and in support of reform is statistically invalid.

The questionnaire’s methodology comes with an expansive waiver as to its own statistical reliability: “the sample obtained in the questionnaire was small, relative to the overall number of Family Court users, and self-selected. The questionnaire findings represent the experiences and views of the user and cannot be generalised to represent all those who access Family Court services”.

FAMILY DISPUTE RESOLUTION “GATEWAYS”

The Minister, Mr Keene and the majority of those making submissions on the Bill are in agreement - alternative dispute resolution, except in the circumstances of urgency or risk, is usually preferable to a litigated resolution when suitable.

Parental self-determination of disputes is commendable. Self-determined resolutions are often more durable and workable than those “imposed” by an expert stranger – a Judge.

The problems with FDR as set out in the Bill are well traversed insubmissions from ADLS, NZLS Family Law Section, AMINZ, LEADR, Nigel Dunlop, mediator and Anet Kate, mediator – among others.

In a nutshell, the issues are:

The $897 user pays fee, and the gate-keeping role of FDR and the FDR provider as a result.

The Bill is silent on:

• Providing a definition of what FDR is;

• No credentialing of FDR providers skill and qualifications, or their governing bodies, professional standards, CPD;

• No mechanism for safety and screening out of vulnerable parties;

• No voice for children in FDR; and

• No certainty of legal advice or representation for parties.

The lack of any evidence as to the functioning of the proposed model (upon its being defined) is a concern. Untested models should not be put into practice nationwide, without a trial to test for successor otherwise. A pilot trial of FDR is essential. 

In the New Zealand Herald piece the Minister is quoted as stating “we will definitely be proceeding with FDR. However, we have listened very much to the judges and their concerns, and the departmental report coming back to the select committee is likely to reflect that listening has occurred.” The Minister’s position is to be commended.

The specific reference to “trained, professional mediators” in the Minister’s Law News article is also laudable. A significant number of other matters need to be fleshed out – and the report of select committee is awaited with keen interest.

A Family Court

The Minister suggests that Mr Keene is incorrect in his article when hestates lawyers are prohibited from the Family Court.

Mr Keene is in fact correct, in that the restrictions on legal representation proposed in the Bill would make the Family Court unique amongst District Courts.

The Bill, if enacted ‘as is’, will make the Family Court the only District level Court in New Zealand where lawyers cannot appear “as of right”. While restriction of legal representation has precedent in some Tribunals, no precedent exists for this at District Court level.

However, the issues of family disputes (eg. care arrangements for a child and the vulnerability of parties) are not comparable to the jurisdictions of these tribunals.

Within the Family Court, property matters under the Property (Relationships) Act 1976 will have the benefit of legal representation as of right, in comparison to child proceedings – a full “Court Track”.

If self-representation clause 7A proceeds, the prevalence of self-represented litigant parties will likely import a broad perception of “Tribunal Track” into the Family Court’s dealings with children’s cases.

This is inappropriate for a District Court, let alone a Court dealing with weighty matters such as the best interests and welfare of the child/children, which have a long term and lasting impact.

This is the point that Mr Keene was making in “Whither the Family Court”. It is a point agreed by the NZLS Family Law Section who shared this concern in their submissions on the Bill, as did ADLS in its submissions.

If the New Zealand Herald is correct and “Government back down follows attack by family judges”, with clause 7A removed, then this matter will not have relevance. That is something to be hoped for.

Conclusion

It is heartening to read in the Minister’s conclusion that “she has listened carefully to the feedback on the reforms from the select committee process.”

The legal profession, stakeholders, and the 385 individuals and groups who made written and oral submissions on the Bill wait anxiously to read the Select Committee report come 4 June 2013. They hope that their carefully considered submissions have been listened to and have had a positive impact on the form of the Bill.

Ms Kazmierow provided extensive references for all statistics and quotations. Due to restrictions of space these have not been printed, but are available on request from the Law News editor. 

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