The Facts about Family Court Reform
After reading Brian Keene QC’s comments on the Family Court reforms from the 15 March issue of Law News (click here to read the article), it is useful to refresh our collective memory on the rationale behind the changes.
Those who practise in and around the Family Court know it is not working as well as it should for some families and has not been for some time. This is not just based on anecdotes, but on an extensive review of the Family Court undertaken by the Ministry of Justice in 2011 and 2012.
The review involved family law academics, government agencies, non-government organisations, professional family justice services and private individuals, and found serious concerns with the court. It is too adversarial, it is harmful for children, not focussed enough on serious domestic violence cases, too slow, too complex and spends too much time on simple private matters that are better resolved outside court.
An independent External Reference Group was also established, made up of professionals who work in the Family Court.
These findings, and recommendations from the External Reference Group, are the key drivers behind the most significant changes since the Family Court was established in 1981.
Change is needed. It’s that simple.
We want a Family Court that is able to focus on protecting vulnerable people, provides fast and efficient resolution of private disputes, and as a priority puts the needs of children first.
This is a solid basis for reforming the Court and our proposed policy direction is the right one.
Private Parenting Disputes
Brian Keene says the majority of the work in the Family Court will be categorised as ‘merely private parenting disputes’. This is simply not correct.
It is expected that family dispute resolution (FDR) will resolve issues for about 4,000 out of over 26,000 care of children applications made to the Court every year.
Most cases will proceed to the Court. Even for those not resolved at FDR, the FDR process will help parents to better understand the issues in dispute.
Judges will be responsible for triaging all cases so that those matters needing the Court’s expertise will get it. Cases that do not, such as simple relationship disagreements, are better resolved through other avenues.
Mr Keene is correct when he says people judge what a court is like through their personal experiences. And in the experiences of Family Court users surveyed by the Ministry of Justice, 74 per cent preferred to resolve their dispute away from the Court.
But 61 per cent of the respondents’ lawyers had advised them to take the Court action in the first instance, rather than attempting to resolve their dispute themselves.
One of the lessons I learnt from my twenty years as a lawyer is that going to court is not the best way to work out care arrangements for children. Nor is it the best way to sort out a relationship break-up.
Litigants in court are seldom satisfied for long with an outcome that is imposed.
We already know the court system can be harmful for families, and it can be especially hard on children. The disruption caused to a child by his or her parents’ relationship ending is tough enough, without having their parents fighting one another in court.
Family Dispute Resolution “Gateway”
Mr Keene says that with few exceptions, notably relationship property issues, defended proceedings can only be instigated after the FDR process has been completed.
I am disappointed by this dismissal of FDR as a worthwhile process – a hurdle to be passed before the real business can begin.
Defended proceedings should be a last resort, not the aim.
FDR was a key recommendation of the External Reference Group, comprised of professionals who work in the Family Court. Not all family disputes are matters of law that need the expertise of lawyers and judges to resolve.
The Family Court must put the needs of children first, rather than the relationship issues of parents.
Where appropriate, trained, professional mediators are better able to help reach a durable solution which the parties involved can be responsible for.
Mr Keene says that FDR is a gateway through which all must pass. This is not correct. It has never been the intention of the reforms to force an FDR process on cases where it is clearly unsuitable.
There is no requirement for FDR where there is a history of domestic violence or child abuse, where a party’s safety could be at risk, a significant power imbalance exists, or if attending is not possible due to illness or disability. Urgent matters proceeding on ‘without notice’ applications will proceed immediately to a hearing, just as they do now. That is not changing.
FDR is increasingly popular in other jurisdictions, particularly for care of children cases when the parties should continue to have some on-going relationship and commitment.
Current practising lawyers may want to offer FDR mediation services as part of their practice. I encourage lawyers who can see an opportunity to add value to be part of this process.
Cost Driven Reform
Unrepresented parties’ savings to the State’s legal aid bill are not behind what is really driving the reforms, as Mr Keene has asserted.
The reforms are needed because the Family Court is not working as it should.
Mr Keene mentions the counterbalancing increase in costs – in dollars, wasted effort, loss of time and frustration of Court officers including judges.
Of course, cost is a factor – and professional services costs have increased significantly in recent years, despite the overall number of applications to the Court remaining the same.
A change in mind-set needs to occur – we need a greater emphasis on putting the needs of children first, rather than long, drawn out, expensive court cases.
Simple parenting and relationship issues are not legal issues. Many people undergo relationship breakups during their lives. Thankfully, the vast majority of couples sort out matters themselves.
I agree with Mr Keene that parents do aim to emerge as ‘quickly and as unscathed as possible’ from the trauma of the court experience. Unfortunately, we know that for a number of people this is simply not happening. Cases are unnecessarily long, drawn out, expensive and harmful.
Our reforms aim to change this. FDR will empower parents to resolve disputes themselves, with expert support. If court action is still needed, a judge will decide if legal representation is helpful, or not. A judge will decide if a lawyer for the child is needed, or if relationship counselling would be beneficial. These services remain available, if they are needed.
When is a Court not a Court?
The Family Court is a court and it will remain so. Lawyers are not positively prohibited from appearing. To say otherwise, as Mr Keene has done, is simply wrong.
The expertise of judges and lawyers will always be needed to solve legal matters. This is not changing.
What is changing is that we are looking at better ways to give families the right support to help them resolve some family issues.
Returning to the findings of the comprehensive review of the Court: it is too adversarial, it is harmful for children, not focussed enough on serious domestic violence cases, too slow, too complex and spends too much time on simple private matters that are better resolved outside court.
This is not good work.
I am committed to reforms that ensure the Court renews its focus towards those who need it most.
I have listened carefully to the feedback on the reforms from the select committee process. This is exactly what the select committee process is for and I thank those who have been involved.
Officials are already looking at incorporating changes that will better support the three priorities driving our reforms - a Family Court that is able to focus on protecting vulnerable people, provides fast and efficient resolution of private disputes, and as a priority, puts the needs of children first.