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Family Court Proceedings Reform Bill (Consistent) (Section 27) [2012] NZBORARp 64 (13 November 2012)

Last Updated: 28 April 2019

Family Court Proceedings Reform Bill

13 November 2012 Attorney-General

Family Court Proceedings Reform Bill (PCO 16734/12.0) Our Ref: ATT395/173

1. I have considered this Bill for consistency with the New Zealand Bill of Rights Act 1990 (NZBORA). I advise that the Bill appears to be consistent with the NZBORA.
   

Summary

2. The Family Court Proceedings Reform Bill enacts a package of reforms to nine Acts which govern Family Court proceedings.[1] The Bill seeks to encourage faster, less adversarial and less costly resolution of family disputes. To this end, the Bill restricts the role of legal and other professionals in certain proceedings, places prerequisites on certain applications, and imposes additional fees and costs.
   
3. A number of the proposals engage s 27 of the NZBORA. We consider that there are however sufficient exceptions, and sufficient protections in the system as a whole, to avoid any breach of that right.
   

Right to justice, s 27 NZBORA

4. The right to natural justice is inherently flexible and context-specific. Its requirements depend heavily on the statutory framework in question and nature of the power being exercised. The existing Family Court framework places no limits on legal representation for parties to Family Court proceedings and makes broad provision for lawyer for the child. The extent to which the Bill changes the current framework requires consideration of the following issues relevant to s 27(1) and (3) NZBORA:
   

4.1 The right to be heard by parties and children. This may require legal representation,[2] depending on the nature of the dispute in question, the interests affected and the overall context of the statutory scheme in which it is being adjudicated.

4.2 Procedural equity between the Crown, which is always represented in Family Court matters where it is a party, and other parties.

4.3 Access to the Court and to information and services for parties to prepare for and respond adequately to proceedings in the Family Court.

Legal representation for parties

5. Clause 5 restricts the ability for a lawyer to act for a party to a proceeding under the Care of Children Act 2004 (COCA) in the Family Court to the following situations:

5.1 The proceeding is commenced without notice;

5.2 The proceeding is under subpart 4 of Part 2 of COCA (international child abduction);

5.3 Where that party is the Crown;

5.4 In defended proceedings, if the judge has directed that the issues in dispute between the parties proceed to a hearing; or

5.5 Where that party is a child for whom lawyer for child has been appointed.

6. This means that a lawyer will not ordinarily be able to act for a party other than the Crown at pre-hearing matters, such as a settlement conference. While a party is able to receive legal assistance outside of the court at any time, under cl 89 legal aid for that assistance is similarly restricted.
   
7. The Bill does not appear to change the circumstances in which the without notice procedure is currently available to COCA applications, that is; where notice would or might entail serious injury or undue hardship, or risk to personal safety of the applicant or any child of the applicants family; where the application affects the applicant only or is in respect of a routine matter; and where every person in respect of whom the order is sought has either died or cannot be found. [3] Clause 89 however provides for legal aid for the first category, but not the later two.
   
8. We are advised that a judge will direct that the issues in dispute between the parties proceed to a hearing after a settlement conference if the matter has not been resolved.[4] A judge will also be able to adjourn a settlement conference to allow a party to obtain legal advice before consenting to an order settling some or all of the issues in dispute in the proceeding. Legal aid will be available for that assistance.
   
9. While these changes restrict access to legal representation and on its face suggest the Crown may always be legally represented at all stages[5] but other parties may not, we do not consider that ss 27(1) and 27(3) of the NZBORA are breached. This is because:
   

9.1 The obligations under s 27 (1) and 27 (3) will be at their strongest when proceedings are actually determined, either by judgement or by consent. Here there is no actual procedural advantage to the crown in terms of s 27 (3) and there is substantive access to legal representation by other parties. [6] The requirements of ss 27 (1) and 27 (3) are substantially met by the availability of legal representation once a judge determines that a defended proceeding will proceed to hearing, and the ability for a judge to direct that a person obtain legal advice (with legal aid being available for that purpose) before consenting to an order settling some or all of the issues dispute in the proceeding.

9.2 The interests of vulnerable parties can be further protected by appropriate use of the without notice procedure, support persons,[7] McKenzie (or next) friends and litigation guardians,[8] and lawyer to assist the court.[9]

10. We are also advised that amended Family Court Rules are to be drafted and will simplify court documents and procedures. This, together with judicial discretion on procedural matters, will further mitigate disadvantage to unrepresented litigants.
    

Lawyer for child

11. The Bill also restricts the appointment of lawyer for child. A court may only appoint lawyer for child in COCA proceedings if the court (a) has concerns for the safety or well- being of the child, and (b) considers an appointment necessary.[10] The Bill adjusts the threshold for the appointment of lawyer for child in other proceedings, but in a less restrictive way.[11]
    
12. Regulations may set maximum fees for that lawyer. A judge may be able to increase the fee, only if it is justified to protect the child’s welfare and best interests or to cater for exceptional circumstances.[12]
    
13. The right to natural justice may require that children are given an opportunity to be heard in legal proceedings affecting them, and may require separate legal representation. This is supported by art 12 of the United Nations Convention on the Rights of the Child (UNCRC), and domestic provisions including s 6 of the COCA.[13]
    
14. We do not consider that there is any breach of s 27 (1) or art 12 here. There are multiple means to ascertain and provide a child's view. They mat be provided through the child parents; [14] lawyer for child;[15] lawyer to assist the court;[16] a specialist report;[17] and directly from the child to the judge through judicial interview[18] or correspondence;[19] either singularly or in combination. The child could also be joined as a party under the usual rules.[20]
    
15. Where separate legal representation is necessary, the "concern for safety or well- being" test under the COCA is not prohibitive. The court's interpretation of this test, and the exercise of it's discretion in COCA and other proceedings, will be informed by s 27 (1), art 12, related obligations.
    

Other limitations

16. Other proposals in the Bill limit access to the services of other professionals commonly engaged in family disputes and impose restrictions on the ability to initiate Family Court

proceedings. In terms of s 27(1), these limitations do not unduly restrict a party’s access to

information and ability to respond or access the Court.

Access to specialist reports and professional services

17. The Bill limits the availability of specialist reports in applications for guardianship or parenting orders under the COCA. The court will be able to obtain a cultural, medical, psychological or psychiatric report “only if satisfied that” the information to be provided is essential, the report is the best source of that information, the proceedings will not be unduly delayed, and any delay will not have an unacceptable effect on the child.[21] Second opinions on psychological reports will only be allowed in exceptional circumstances. If the

court declines approval for a second opinion, the court may permit disclosure of the materials to a psychologist employed by the party, if the court is satisfied that the psychologist requires the materials to assist the party to prepare the party’s cross- examination. Parties will be required to contribute to those costs, unless it would cause “serious hardship”. [22]

18. No breach of s 27(1) arises - the test for ordering a first specialist report allows a qualitative assessment that will take into account the importance of the proposed evidence for the party seeking approval.[23] Disclosure of materials in lieu of a second psychological report should ameliorate any disadvantage.
    

Mandatory attendance at out-of-court programmes; access to the Court

19. The Bill requires attendance at parenting information programmes[24] and family dispute resolution (FDR)[25] prior to certain proceedings being commenced under COCA. For example, in terms of FDR: where the application is made without notice; is for a consent order; seeks the enforcement of an existing order; relates to a child who is the subject of existing proceedings under the Children, Young Persons, and Their Families Act;[26] or at least one of the parties is unable to effectively participate in FDR.[27] FDR providers may also excuse a dispute from FDR if one of the parties, or a child of one of the parties, has suffered or is suffering from domestic violence inflicted by a party to the dispute or where FDR is otherwise inappropriate.
    
20. These exceptions to mandatory attendance, in particular the without notice procedure,[28] are capable of ensuring that those that require immediate access to the court can do so. In all other cases, access to the Court is preserved where the matters in dispute cannot otherwise be resolved.
    

Discrimination, s 19 NZBORA

21. A number of changes proposed by the Bill will affect only, or mostly, proceedings in the Family Court under the COCA. We are advised that applicants in the Family Court and for family legal aid are disproportionately female. Children, and disabled persons, may also be disproportionately affected by the restrictions on legal representation.[29] We consider that should any issues of indirect discrimination under s 19 NZBORA arise, such are met by the mitigating features identified above.[30] There is sufficient room within the proposed changes to allow those who require immediate access to the court, and assistance for their proceedings, to obtain that.
    
22. I have been assisted in the preparation of this advice by Lani Inverarity, Assistant Crown Counsel. In accordance with Crown Law Office policy, this advice has been peer reviewed by Jane Foster, Crown Counsel

Charlotte Griffin Crown Counsel

Footnotes

1. Care of Children Act 2004; Child Support Act 1991; Children, Young Persons, and Their Families Act 1989; Domestic Violence Act 1995; Family Courts Act 1980; Family Proceedings Act 1980; Legal Services Act 2011; Property (Relationships) Act 1976; and the Protection of Personal and Property Rights Act 1988.
2. Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58 (CA).
3. Family Court Rules 2002, r 24. The without notice procedure is also available for limited, specified applications under r 335. We understand that the Rules will be amended.
4. The Explanatory Note indicates this will happen when a proceeding is “set down for hearing”: at 6. Refer Family Court Rules, rr 52A - 52B, 352 - 353.
5. For example, cl 5 permits the Crown to be represented (as it cannot act for itself) where it is a party to applications under s 31 of the COCA to place a child under the guardianship of the Court, and related orders about the day-to-day care of and contact with that child.
6. The High Court has held that s 27(3) “directs that the Crown shall have no procedural advantage in any proceedings to enforce rights if such rights exist”: Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40 (HC) at [55].
7. Care of Children Act 2004, s 137, although a support person cannot help the party conduct his or her case.
8. Care of Children Act 2004, s 137; Family Court Rules 2002, r 90.
9. Clause 21. Clause 70 of the Bill will insert a new provision into the Family Courts Act 1980 that seeks to clarify the role of lawyer to assist the court. The role of the lawyer is to provide independent legal advice to the court on any complex factual or legal issue requested by the court; offer an impartial perspective in relation to any issue arising in the proceedings; and do anything else required by or under any Act.
10. Clause 5.
11. See cl 33 regarding the Child Support Act 1991; cl 84 regarding the Family Proceedings Act 1980; cl 37 regarding the Children, Young Persons, and Their Families Act 1989; cl 62 regarding the Domestic Violence Act 1995; cl 92 regarding the Property (Relationships) Act 1976; and cl 96 regarding the Protection of Personal and Property Rights Act 1988.
12. Clause 75, together with lawyer to assist the court.
13. Article 12 provides that the child shall be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body. Section 6 provides that a child must be given reasonable opportunities to express views on matters affecting the child in proceedings under that Act involving guardianship, day-to-day care and contact with the child, and the child’s property.
14. In Ye v Minister of Immigration, the Supreme Court said in the immigration context

that the general principle is that a child’s interests in litigation should be represented

by parents, unless there is good reason to believe that the parent will not adequately represent the child’s interests. This approach, the Court said, is consistent with art 12 of UNCRC and, implicitly, the right to natural justice: [2009] NZSC 76, [2010] 1

NZLR 104 at [47]-[51].

15. In C v S [2006] NZHC 495; [2006] 3 NZLR 420 (HC) at [31], Randerson J said that lawyer for child

performs “a vital role in assisting the Court to carry out its obligation under s 6(2)”.

16. See for example C v S [2007] NZFLR 583; (2007) 27 FRNZ 399 (HC); but within the parameters set by cl 70 of the Bill.
17. Although a psychologist report cannot be solely for that purpose: K v K [2005] NZFLR 28 at [92]; cl 22 of the Bill.
18. See for example Albert v Beatrice HC Auckland CIV-2006-404-3930, 19 December 2006 from [31]; Family Court Rules 2002, r 54.
19. See for example C v S [2007] NZFLR 583; (2007) 27 FRNZ 399 (HC).
20. Family Courts Rules 2002, r 133.
21. Clause 22.
22. Clause 22. Regulations may set maximum fees for reports under this Act: cl 75. The Care of Children Act 2004 currently provides that a court may order a party to contribute a specified amount to the costs of lawyer for child and lawyer to assist the court: s 131(4).
23. For example, the words “unduly” and “unacceptable” allow a flexible assessment.
24. Clause 10.
25. Parties above the civil legal aid income threshold are required to pay for FDR under private contact. The Ministry will pay for parties below that threshold: Explanatory Note at 18-19.
26. Being proceedings under Part 2 of that Act, in relation to a child or young person in need of care or protection.
27. Clause 69.
28. Which is available in the case of undue hardship: refer paragraph 7.
29. On the basis that these parties may find it more difficult to participate in legal proceedings without legal assistance.
30. Refer in particular paragraphs 7-10, 14-15, 19-20.
31. Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58 (CA).
32. Family Court Rules 2002, r 24. The without notice procedure is also available for limited, specified applications under r 335. We understand that the Rules will be amended.
33. The Explanatory Note indicates this will happen when a proceeding is “set down for hearing”: at 6. Refer Family Court Rules, rr 52A - 52B, 352 - 353.
34. For example, cl 5 permits the Crown to be represented (as it cannot act for itself) where it is a party to applications under s 31 of the COCA to place a child under the guardianship of the Court, and related orders about the day-to-day care of and contact with that child.
35. The High Court has held that s 27(3) “directs that the Crown shall have no procedural advantage in any proceedings to enforce rights if such rights exist”: Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40 (HC) at [55].
36. Care of Children Act 2004, s 137, although a support person cannot help the party conduct his or her case.
37. Care of Children Act 2004, s 137; Family Court Rules 2002, r 90.

38. Clause 21. Clause 70 of the Bill will insert a new provision into the Family Courts Act 1980 that seeks to clarify the role of lawyer to assist the court. The role of the lawyer is to provide independent legal advice to the court on any complex factual or legal issue requested by the court; offer an impartial perspective in relation to any issue arising in the proceedings; and do anything else required by or under any Act.
39. Clause 5.
40. See cl 33 regarding the Child Support Act 1991; cl 84 regarding the Family Proceedings Act 1980; cl 37 regarding the Children, Young Persons, and Their Families Act 1989; cl 62 regarding the Domestic Violence Act 1995; cl 92 regarding the Property (Relationships) Act 1976; and cl 96 regarding the Protection of Personal and Property Rights Act 1988.
41. Clause 75, together with lawyer to assist the court.
42. Article 12 provides that the child shall be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body. Section 6 provides that a child must be given reasonable opportunities to express views on matters affecting the child in proceedings under that Act involving guardianship, day-to-day care and contact with the child, and the child’s property.
43. In Ye v Minister of Immigration, the Supreme Court said in the immigration context that the general principle is that a child’s interests in litigation should be represented by parents, unless there is good reason to believe that the parent will not adequately represent the child’s interests. This approach, the Court said, is consistent with art 12 of UNCRC and, implicitly, the right to natural justice: [2009] NZSC 76, [2010] 1 NZLR 104 at [47]- [51].
44. In C v S [2006] NZHC 495; [2006] 3 NZLR 420 (HC) at [31], Randerson J said that lawyer for child

performs “a vital role in assisting the Court to carry out its obligation under s 6(2)”.

45. See for example C v S [2007] NZFLR 583; (2007) 27 FRNZ 399 (HC); but within the parameters set by cl 70 of the Bill.
46. Although a psychologist report cannot be solely for that purpose: K v K [2005] NZFLR 28 at [92]; cl 22 of the Bill.
47. See for example Albert v Beatrice HC Auckland CIV-2006-404-3930, 19 December 2006 from [31]; Family Court Rules 2002, r 54.
48. See for example C v S [2007] NZFLR 583; (2007) 27 FRNZ 399 (HC).
49. Family Courts Rules 2002, r 133.
50. Clause 22.
51. Clause 22. Regulations may set maximum fees for reports under this Act: cl 75. The Care of Children Act 2004 currently provides that a court may order a party to contribute a specified amount to the costs of lawyer for child and lawyer to assist the court: s 131(4).
52. For example, the words “unduly” and “unacceptable” allow a flexible assessment.
53. Clause 10.
54. Parties above the civil legal aid income threshold are required to pay for FDR under private contact. The Ministry will pay for parties below that threshold: Explanatory Note at 18-19.
55. Being proceedings under Part 2 of that Act, in relation to a child or young person in need of care or protection.
56. Clause 69.

57. Which is available in the case of undue hardship: refer paragraph 7.
58. On the basis that these parties may find it more difficult to participate in legal proceedings without legal assistance.
59. Refer in particular paragraphs 7-10, 14-15, 19-20.
    

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