Whither the Family Court

In a process commenced by a public discussion consultation paper of 20 September 2011, the Ministry of Justice instigated a review of the Family Court. The process has now proceeded to the stage of a draft Bill. It was introduced to Parliament on 27 November 2012 and had its first reading on 4 December 2012. As is usual, public submissions were invited to a Select Committee, the closing date being 13 February. Given the interruption of Christmas this gave a little over four working weeks for the filing of submissions. ADLS was fortunate to be granted a further one-week extension.

Good processes are more likely to deliver good answers. A four-week turnaround on an important issue such as the Family Court Proceedings Reform Bill is quite simply not good process – particularly as some of the key proposals are entirely new and have not been previously consulted on.

A number of bodies filed submissions, including ADLS. Any practitioner with an interest in either family law or higher principles of the Rule of Law and Access to Justice should read that submission. It is an excellent analysis of some of the important issues. It is posted on the ADLS website under “Committee Submissions”.

This article focuses upon a number of social and public policy elements which arise out of the proposed Bill. It expresses the view that the Ministry’s proposals are shortsighted, however well intended. Their social consequences do not appear to have been well thought through.

Particular issues are:

(a) The Ministry’s categorisation of the principal Family Court business as “private parenting” disputes;

(b) The Family Dispute Resolution “Gateway” enacted to minimise judicial and legal aid costs;

(c) Cost driven reform;

(d) Self-representation of parties banning lawyers from participating; and

(e) The effect on the status of the Family Court.

Private Parenting Disputes

Categorising the majority of the work in the Family Court as being merely private parenting disputes is a very questionable major premise to the solution of any Court- related reforms if it seeks to differentiate between private disputes and public good. It should be remembered that the Family Court is the Court which arguably has the greatest exposure to ordinary citizens. People apply to it for resolution of problems they cannot themselves solve. As such it is the leading standard against which the person in the street will judge what a Court is like. From their personal experience they will generalize about whether the Courts provide a feeling of “justice” being achieved through their processes.

If public experiences of this Court are radically changed for the worse it is likely to provide a quick and dangerous contagion which will infect the public satisfaction levels in the whole of the Court system.

Quite apart from that important profile, the State has a significant interest in the stability of family life. After all, unstable families affect not merely the “private” interests of parents but also people around them, including extended family. Critically this also includes the children; again not merely those within the narrower family group. Cousins, nieces, aunts and uncles of the extended family will become involved in the dispute until it is resolved into some new normalcy.

So if the “private parenting” label is intended to imbue the issues as being somehow bipartite and selfishly inter-personal, that is quite wrong. It is wrong whether the issues are care of children, protection of the vulnerable or the fair division of relationship property. In each case the objective must be the regaining of some normalcy following a family split. It does not matter whether the dispute is inter-personal or about the division of wealth. Only when resolution has been achieved can the parents regain some ability to set up new family arrangements in stable living environments.

Broadly, therefore, the social policy which should be recognized in the legislation is that the excellent work of the Family Court reflects the importance of the family which lies at the very heart of New Zealand society. True, it is not the State’s fault that the family may become disrupted. It should however be a high priority for the State to bring its resources to bear to assist in its resolution. No-fault State assistance in other areas of social policy is a well-established principle.

Family Dispute Resolution “Gateway”

With a few exceptions, notably relationship property issues, defended proceedings can only be instigated after a Family Dispute Resolution (FDR) process has been completed. The first element of the barrier is the need to meet a new user-pay cost. The FDR proposed fee is $897 (including GST) to be shared equally by the parties. The charging and recovery of this is new and untested. However, it has the feel of a fee which will be more blessed with waivers than recoveries.

Next, the FDR process is conducted without lawyers. It seems to involve a dispute mediator in a room together with solely the two parties. This is in stark contrast to existing processes which can include counsel, the intervention of counsel for the child and State funded pre-court counselling sessions.

It requires little imagination to foresee the cocktail of problems that this will present. The participants, lacking professional advice, will bring to the process personal skills which will vary between contestants from the highly literate to completely illiterate; the emotionally overcharged and the coolly efficient; the spouses who will use the opportunity to seek revenge about the real or imagined past misdeeds of the other. These are the very things which representation of the parties (and, where appropriate, the children) has been carefully calibrated to minimize.

Because FDR is a gateway through which all must pass it could open the prospect of a recalcitrant parent declining or delaying payment of his/her share and so blocking access to FDR and ultimately access to a defended hearing in the Family Court. In the interests of balance it should be noted that any person who currently qualifies for legal aid will also be entitled to have his/her share of the FDR fee waived. However that is a very low monetary threshold. That said, there are many people who live above that threshold yet would still find their share of such a fee significant to their daily life.

Cost Driven Reform 

The stripping out of legal representation (and therefore the drain on the legal aid fund) and turning the FDR process into a user-pays one are examples of the clear drive to save costs. The targeted saving will only arise on the assumption that otherwise the efficiency levels of interaction with the Court remain more or less as at present. Such an assumption quickly falls apart on even a preliminary analysis. All experience of unrepresented litigants indicates that the pre-trial processes become much more time-consuming for Court officials and registrars. A side-wind disadvantage is that it leads overall to a seriously diminished standard of presentation of the case. The result is that the Judge eventually has to unpick what will often be a mare’s nest of the relevant and irrelevant, appropriate and inappropriate evidence and wishful “off the planet” thinking compared to reality. That process risks a perception by one litigant that the judge is “helping” the other. So it jeopardizes the apparent judicial impartiality.

Unrepresented parties’ savings to the State on legal aid really drives this reform. However it is inevitable that there will be counterbalancing costs: some denominated in dollars; many more arising out of wasted effort, loss of time, frustration of Court officers (including Judges). The earlier observation needs to be stressed again – that the greatest number of voluntary users of the Court system is concentrated in the Family Courts and therefore it will be seen as a lodestar to the public gauge of overall efficiency of the Court.

Parties’ Self-Representation 

The Bill proposes that New Zealand Family Court child-related proceedings are largely litigated by representation is the norm, with no lawyers for parties as of right.

There is a wise old adage to the effect that a lawyer who represents himself has a fool for a client. The converse must be that the client who represents himself has a fool for an advocate. Experience shows this to be largely true. So it is not surprising that the public seeks to be represented by the profession.

In so doing, they benefit from the experience, independence and expertise of their advisors. They aim to get through what is perhaps one of the most traumatic incidents of their lives, emerging as quickly and as unscathed as possible. Intuitively they know they will be hard pressed to rescue themselves. Hence the demand for legal services will always exist. It is therefore distinctly odd that under the Bill, until the point of a defended hearing, representation, to paraphrase Milton Friedman, is an example of a government solution to problems being usually at least as bad as the problem.

The ADLS submission is hard-hitting and uncompromising on this aspect. So it should be. Tellingly it points out that the proposals to bar or restrict lawyers from participation in the Courts’ processes have the strong potential for systemic dysfunction within the Family Court. It quotes studies to the effect that:

“family law litigants are usually emotionally wrought and the feelings that they have about the other party can make it very difficult, if not impossible, for them to consider their situations objectively. Family law lawyers not only know what information is essential and what to emphasise, but they can also sort through emotions to concentrate on legal issues”.

ADLS’s blunt recommendation is that the prohibition on legal representation in the proposed Bill be removed.

When is a Court not a Court? 

There is a great deal of legal writing on the subject of the importance of the right for legal representation. It is variously categorized as “equality of arms” or an important aspect of access to justice. Arguably it is one of the distinguishing characteristics of a “Court”. It is the right hand of justice. In New Zealand we have two tribunals (the Disputes Tribunal and the Tenancy Tribunal) where lawyers are prohibited. There is a social policy justification for this, in that they deal more with minor disputes and specific landlord-tenant issues. Such a justification has no place in the highly emotional field of inter-personal relations which lies at the core of the breakdown of family life and therefore of the Family Court’s work.

It must be adamantly affirmed that the Family Court is a Court and certainly nothing less. The Ministry has been challenged to name a Court where lawyers are positively prohibited from appearing. To maintain this element is to run the real risk of undermining the public perception of the status of the Family Court (and accordingly its business) in an unacceptable way.

That risk, if it emerges, is likely to not only affect public opinion but also that of both the profession and the Judges who pass from the profession to the bench. Such a corrosive process should not be allowed to begin.

These reforms are unabashedly cost-driven. The Ministry needs to first work through the social issues before seriously hobbling an institution that does the good work that the Family Court has delivered over many years. The good news is that the ADLS submission was listened to very carefully by the Select Committee at its recent hearings. Hopefully the outcome will not wither the Family Court. 

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