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Dispute resolution in the Family Court - Government Response to Law Commission report [2003] NZLCGovResp 82

Last Updated: 29 January 2019

Government Response to Law Commission Report on "Dispute Resolution in the Family Court"

INTRODUCTION

The Government has carefully considered the Law Commission’s report on Dispute Resolution in the Family Court NZLC 82.

The Government responds to the report in accordance with Cabinet Office circular CO (01) 13.

THE LAW COMMISSION REPORT

The Law Commission’s report is a result of a reference at the request of the Associate Minister of Justice in June 2001. The reference was prompted by an increasing level of criticism of the Family Court, including allegations of bias, delay, too ready granting of ex parte applications, and insufficient training and skill levels of some Family Court professionals and staff.

The Law Commission was asked to consider what changes, if any are necessary and desirable in Family Court administration, management, and procedure to resolve dispute early. It was asked to consider:

• The role of information-giving, counselling, legal advice, mediation, assessment, case management, and adjudication;
• Who might best fulfil these functions;
• How these services are provided;
• The timing of various interventions and the means of accessing them;
• How the views and interests of children should best be represented, and at what stage of the process;
• Culturally appropriate personnel and processes.

The Commission was also asked to consider resource allocation in the family jurisdiction and to consult widely. As the Commission noted, the terms of reference imply that the Family Court is a useful institution and the Commission’s brief was to look at how its processes might be improved.

RECOMMENDATIONS AND GOVERNMENT RESPONSE

The Law Commission made 135 specific recommendations in total. The issues identified in the report are grouped as follows:

• the need for comprehensive public information about Family Court services (11 recommendations);
• the need for expansion of conciliation services provided by the Family Court (53 recommendations);
• Training, remuneration and staffing levels in the Family Court (16 recommendations);
• Delays and other management issues in Family Court processes (12 recommendations);
• Lack of mechanisms for the views of children to be appropriately heard and represented (3 recommendations);
• Accessibility to services for migrants, refugees and people with disabilities (9 recommendations); and
• The need to increase Maori participation in Family Court processes and services (7 recommendations).

Response

The Government is heartened to note that the Commission starts its report with a reminder that the Family Court of New Zealand is a world leader in its field and that its recommendations are intended to strengthen this foundation. The Commission acknowledged there are some valid criticisms and while there will always be ways to improve the Court’s operations, it found the Family Court a valuable institution providing a useful service to families in distress.

Recent research into Family Court cases relating to guardianship carried out by the Department for Courts has reinforced this finding for the Government. A statistical analysis of the cases brought under the Guardianship Act 1968 over three months in 2000 and 2001, found that almost half of the cases do not go to any of the three main stages of dispute resolution in the Family Court (counselling, judicial mediation and defended hearing).

The study appears to show that only approximately 5% to 6% of the cases are not resolved prior to having a defended hearing set down before a judge. These are likely to be the "hard" cases where emotions are running high and the parties are entrenched in conflict. (see Appendix 1 Caseflow diagrams)

The Law Commission’s report and its recommendations are diverse and wide-ranging, concentrating in detail on practitioner and court user issues. The report focuses on a range of processes and operations to improve the running of the Court and public perceptions but makes no recommendations for major jurisdictional or operational change.

The Family Court aims to promote reconciliation and conciliation, and it encourages parties to resolve as many issues as possible themselves. In responding to the Law Commission’s recommendations, the government’s aim is to: ensure the Family Court can deliver dispute resolution processes for the users of the Court (including children); to do so fairly and appropriately for all; and to ensure that any investment made is effective in promoting these outcomes.

The Government has addressed the Law Commission’s recommendations by a combination of new initiatives, longer term work in relation to some of the recommendations and noting that work relating to a number of issues raised by the Commission is already currently under way.

Law Commission’s recommendations

Both the present report and the Law Commission’s discussion paper on the structure of the courts highlight the need for comprehensive information about the role of the Family Court and court processes for the general public, and for those involved in the court process. The Commission suggests the lack of comprehensive information about the Family Court is a factor in individuals and various interest groups misunderstanding the role of the Family Court, and the current state of the law. The Law Commission has made a number of recommendations relating to improving information provision in the Family Court.

Response

Proposed new initiative – to extend the public information strategy for the Family Court

In April 2002, Cabinet directed the Ministry of Justice and the Department for Courts, in partnership with the Principal Family Court Judge, to develop a public information strategy that will be culturally relevant to all users of the Family Court (CAB (02) 10/7). This strategy aims to heighten public awareness of the principles of the Family Court upon which decisions are made, with a view to bringing balance to the public perception of the Family Court. In addition, this strategy will inform the public about any changes in processes from the reviews of the Guardianship Act 1968 and dispute resolution processes in the Family Court.

Officials met with the Principal Family Court Judge to discuss the development of the strategy. However, work to finalise the strategy has been delayed to allow for the Care of Children Bill to progress, for the release of the Law Commission’s report, and other work priorities.

The Government recognises the need for the public information strategy to extend beyond the aim of heightening awareness of principles of the Family Court to include informing potential users about the processes and procedures of the Family Court, with particular consideration given to groups identified by the Law Commission as having special needs (e.g., Maori, Pacific peoples recent migrants, refugees and people with disabilities). Officials have been directed to report back with a detailed strategy and costs to implement such a strategy for the Family Court, with the intention of seeking funding in the 2004 Budget round.

Work is currently underway in conjunction with the Principal Family Court Judge, to review and extend the existing content of the Family Court website. The extent of this work is constrained by existing funding. Officials will consider the need for further development of the website when developing the public information strategy.

Law Commission’s recommendations

The Law Commission recommends that non-judge led mediation be introduced as a new conciliation service, and should be:

• provided by qualified mediators;
• flexible about who is able to attend mediation, including children;
• available to a wider range of proceedings (e.g., relationship property disputes, family protection, adoption, protection of personal and property rights); and
• in addition to the existing judge-led mediation (which should be renamed "settlement conferences").

Response

Proposed new initiative – to develop pilot of non-judge led mediation

The Government considers that this recommendation has merit and has directed officials to develop a pilot for non-judge led mediation by the end of FY 2003/4, with the pilot running for FY 2004/5 and 2006/7. The pilot will contain details of who may attend mediation, participation of children and young people in the process, legal aid and evaluation. Funding for the mediation pilot will be sought in the 2004 Budget round.

Law Commission’s recommendations

The Law Commission recommends the following changes that would allow the Family Court to function "without so many complaints about delays and incompetence":

• upskilling of Family Court staff;
• extending the Family Court staff salary band to reflect the level of skill, knowledge and responsibility these positions demand; and
• maintaining a sufficient staffing level to cope with workload or short-term vacancies.

Response

Proposed new initiative – integrated training package for Family Court staff

The Department for Courts currently provides a number of in-house and extramural training opportunities and resources for its staff. The government recognises that additional training for Family Court staff should improve efficiency and allow staff to cope with greater workloads. Officials have been directed to develop a comprehensive training proposal for Family Court staff, which will address the matters identified by the Law Commission. The training programme will include enhancing staff responsiveness to Family Court users from Maori, Pacific and other cultures. The programme will require additional funding, which will be sought in the 2004 Budget round.

The Government has already moved on the matter of remuneration and a review was carried out by the Department in 2001/02, which included Family Court staff. This led to increased remuneration and further salary progression for a number of Family Court staff. The last phase of this review was completed in March 2003.

LAW COMMISSION RECOMMENDATIONS ON OTHER MATTERS

Court proceedings

Law Commission’s recommendations

The Law Commission makes a number of specific procedural recommendations aimed at improving processes at various stages in proceedings under the following statutes:

• Guardianship Act 1968;
• Domestic Violence Act 1995;
• Mental Health (Compulsory Assessment and Treatment) Act 1992;
• Property (Relationships) Act 1976; and
• Family Proceedings Act 1980 (including transferring the dissolution of marriages to the office of the Registrar of Births Deaths and Marriages).

Longer term work

Officials will consider the Law Commission’s recommendations within work programmes relating to the individual Acts. Recommendations relating to organisation and structure of court registries are expected to be considered within the context of the merger of the Department and Ministry, and the Law Commission’s pending report on the structure of courts.

Review of Complaints Procedure for Specialist Report Writers

Law Commission’s recommendation

The Law Commission recommends that the Family Court should review the procedure for complaints about Family Court psychologists, in consultation with the Psychologists’ Board. The Law Commission also recommends that the Family Court should review the way critiques of specialist reports are managed.

Work currently under way – Health Practitioner Competence Assurance Act and a multidisciplinary working group

The Health Practitioner Competence Assurance Act has just been passed and comes into force in September 2004. This addresses complaint procedures for all health practitioners, which includes psychologists who provide services to the Family Court.

The Principal Family Court Judge has also recently established a multidisciplinary working group that will review an existing Practice Note that deals with issues relating to specialist report writers, including the complaints procedure. The Department has a representative on the working group.

Department of Child Youth and Family Services (CYF)
The Law Commission notes that a lack of resources has impacted on the services CYF provides to the Family Court. CYF and the Department for Courts regularly review their joint protocol on the delivery of services to the Family Court to ensure local and national issues are addressed in a timely manner, and that there is effective communication and liaison between the agencies. The Department for Courts and CYF will continue to look at ways in which CYF can improve its service provision, and explore some of the Law Commission’s proposals to improve services within existing resources. In addition, CYF is currently in the process of a base-line funding review.

The Role of Family Court Co-ordinators(FCCs)

Law Commission’s recommendations

The Law Commission found that that the role of the FCCs has diminished over time from a liaising or co-ordinating function, to more of an administrative role. This has been attributed to the Court’s higher workload and limited budget; and recommended that the role of the FCCs should be expanded if the Family Court is to extend its conciliation services.

Longer term work

The role and workload of FCCs will be reviewed. This work will inform the development of options to address this issue.

Communication between National Office, the courts and the Judiciary

Law Commission’s recommendation

The Law Commission recommends establishing a chief executive role in the Department for Courts’ National Office to administer operations and co-ordination in the Family Court. The chief executive would liaise directly with the Principal Family Court Judge and other Family Court judges (the Administrating Judges) to improve communication and co-ordination between National Office and the Court.

Longer term work

The need for change to the Department’s National Office structure will be considered after the Department merges with the Ministry of Justice, and the release of the Law Commission’s upcoming report on the structure of the courts.

Accessibility to services for Pacific peoples, migrants, refugees, and people with disabilities

Law Commission’s recommendations

The Law Commission’s recommendations aim to improve the Family Court’s responsiveness migrants, refugees, and people with disabilities. The Law Commission criticises the lack of culturally appropriate conciliation services available for some migrants or refugees, and recommends that information should be available in several languages and conciliation services should be further developed to meet different cultural needs. The Law Commission states that courts generally do not provide sufficient assistance for people with disabilities.

Work currently underway – Improving accessibility of information for Pacific peoples, migrants and refugees

At present, most pamphlets about the Family Court are available in English and Maori. The Department for Courts is undertaking work to provide information sheets about Family Court services in other languages. These information sheets will be posted on the Department’s intranet, where court staff will be able to access and print off the relevant sheet to accompany English language pamphlets.

Work currently underway – Development of policy on the use of interpreters in court

As part of its 2003/04 work programme, the Department has planned to review the current practices, and to implement national policies, on the hiring and use of interpreters (including sign language) in courts.

Work currently underway – Improving building accessibility for people with disabilities

The Government has spent over $100 million since 1995 in both new and upgraded court buildings. At present, all new and refurbished courthouses meet the requirements as set down for disabled persons under the Buildings Act 1991. The Government is planning to spend a further $110 million (subject to funding) over the next 5 years in an effort to bring all court buildings up to statutory compliance and Courthouse Design Standards.

Maori Participation

Law Commission’s recommendations

The Law Commission makes a number of recommendations to promote Maori participation in the Family Court. These include:

• contracting qualified Maori conciliation service providers;
• assessing the training needs for Maori psychologists and counsellors;
• introducing standardised introductory procedures that comply with tikanga Maori in the Family Court;
• providing training in Maori pronunciation and cultural awareness to everyone working in the Family Court; and
• amending legislation to allow whanau to attend Family Court hearings at the judge’s discretion.

Maori counsellors already provide counselling services for the Family Court, but results of a 2002 survey commissioned by the NZ Psychologists’ Board indicate that there are many barriers and few incentives for Maori to work as psychologists. Te Puni Kokiri emphasises that, over and above having Maori providers, it is important the Family Court and its service providers are able to interact and work confidently and effectively with Maori.

Work currently underway – regional implementation of Te Reo Maori Strategy

The Department for Courts has developed a Te Reo Policy to substantially improve the quality and extent of the use of Te Reo Maori within the Department by 2005. A specific focus is to raise staff confidence and ability in the pronunciation of Maori. Opportunities to broaden staff understanding of the social structure of Maori and the Maori view of the world are under development. In particular, training for staff on how these concepts can be applied in the Family Court will be included in the comprehensive training programme that will be developed for Family Court staff.

Training for the Judiciary is provided by the Institute of Judicial Studies. The Institute currently offers an optional course in Te Reo Maori, and arranges an annual Marae visit to promote awareness of Tikanga Maori. Officials will work with the Principal Family Court Judge and the Institute of Judicial Studies to develop further training to promote the awareness of Te Reo and understanding of Tikanga Maori and the ways in which these can be applied in the Family Court.

Work currently underway – Maori Health Strategy and Maori Health Action Plan 2002-2005

Initiatives are underway as part of the He Korowai Oranga, the Maori Health Strategy, and the Maori Health Action Plan 2002-2005 to encourage the increased participation of Maori in the health workplace, including Maori psychologists. These initiatives are aimed at improving both mainstream services and services for Maori by Maori. They include the establishment of a Maori Workforce Development Fund; scholarships for Maori and Pacific students undertaking health courses; and the establishment of Te Rau Matatini (the Maori Workforce Development Organisation).

Work currently underway – Care of Children Bill and adoption proposals

The Care of Children Bill has provisions aimed to improve the participation and support of whanau and families in decisions relating to care of children, for example, allowing family members who have attended earlier dispute resolution procedures to be present at the hearing.

As part of the proposed reform of adoption laws, officials are recommending that:

• Maori social workers cover adoptions of Maori children wherever possible; and
• social workers have a duty to report to the Court that he or she has encouraged the birth parents to consider family and whanau involvement in the planning of the child’s future.

Recommendations relating to legal aid provisions

The Law Commission makes a number of recommendations relating to eligibility for legal aid in the Family Court. In particular there are recommendations relating to legal aid for people with disabilities, legal aid for advice as part of conciliation service, and the 'unbundling of legal services' for self-represented litigants. These recommendations will be considered as part of the current review of eligibility for legal aid.

Recommendations relating to adoption

The Law Commission recommends a standard procedure for ascertaining the wishes of the non-guardian father when a mother consents to release a child for adoption. This issue has been considered as part of the Government's current review of adoption legislation, and officials are recommending a process where social workers are required to make reasonable efforts to identify and locate the father to obtain his consent to the adoption.

Several proposals in the Care of Children Bill dovetail with the Law Commission’s recommendations. For example:

• including a specific principle that children must have the opportunity to express views on matters affecting them, either directly or through a representative, and those views must be taken into account;
• extending the availability of counselling to same-sex couples;
• providing children with adequate age-appropriate information about how they may participate and how their views will be ascertained and taken into account; and
• providing better enforcement process for the Family Court to ensure compliance with orders made proceedings under the Bill.

CONCLUSION

The scope of the recommendations made by the Law Commission is comprehensive and detailed. The Commission also assigned priorities and, as the Commission noted, its emphasis on training and remuneration are not necessarily headline-making matters but they would help the Court function in the manner to which it aspires and with fewer complaints about delays and competency. The Government has taken steps to put those recommendations into place.

The two other main initiatives now underway also relate to recommendations that the Commission noted as high priority. Comprehensive information about the Court for the public, and the users of the Court and their special needs was noted as an important means of improving the perception of the Court and understanding how the Court can help the users of its services and what they can do to help themselves.

The Government has also decided that the Commission’s recommendation to pilot non-judge led mediation is an important addition to the ways in which the Family Court can address the needs of the small but significant group who seem to need the full array of the Court’s services. The pilot will enable an effective and focussed process to be trialed and evaluated.

The remaining recommendations that fall outside the scope of the proposed new initiatives and the work currently under way will inform longer-term work of the Ministry, the Court and other agencies concerned with families and their needs.