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487 THIS CHAPTER looks at improving Family Court efficiency and effectiveness. Court process inevitably overlaps from time to time with court management. Although this chapter concentrates on case processing, it also examines points in the system at which cases are referred to, or sent back from, conciliation services.
488 The background chapter to Preliminary Paper 47, “Stages in the Court Dispute Resolution Process”, set out case tracks from the caseflow management practice note that apply to each type of proceeding. It highlighted points in the process where delay is likely. These were a reference point for discussing problems and suggesting changes, and that material is not repeated here.
489 Submissions on comments in the preliminary paper on the progress of cases through the Family Court are incorporated in this chapter.
490 Caseflow management practice notes lay out for Court staff, practitioners, and litigants, anticipated processes for resolving matters in court. Standard timeframes are also a guide to reasonable expectations and a means of measuring delays. There will be occasional departures from these standards in order to intervene in a matter in the most effective way.
Recommendation
Caseflow management practice notes should remain a guide to the expected track for most cases.
491 Parties will normally ask for conciliation services through the Family Court co-ordinator. They may discuss with the Family Court co-ordinator the most appropriate referral, or make a specific request, in which case the court track may not be activated, and the matter may be resolved without Court intervention.
492 In the case of violence, for example, or where children may be taken out of the country, there will be an application for urgent court orders. The matter may or may not return to the Family Court co-ordinator for counselling, mediation, or some other conciliation referral.
493 Other parties may have been referred to information sessions, counselling, or mediation that has not resulted in settlement, and a court application has been filed. There will still be a court track option for the matter to be referred back later to mediation or counselling.
494 We hope specialist mediation and counselling will be used where appropriate. We envisage parties being able to apply for a specialist referral, or the Court directing it. Where it is an option, the judge might require input from counsel, the parties, and the Family Court co-ordinator (on conciliation intervention already provided, and on what might be available).
495 Interim or final court orders will sometimes be required, and judge time made available. The system should have the capacity to deal speedily with urgent applications.
496 Specialist counselling may also be offered after interim or final determination, to help implement orders, rather than being just an initial alternative to adjudication.
Recommendation
The Court should have power to refer a matter back to Family Court conciliation services at any stage in the Court process where conciliation is likely to help resolve it.
497 Chapter 8 recommends mediation be offered by qualified mediators, as part of conciliation services.
498 Counsellors currently undertake some mediation. Judges chair mediation conferences for matters under the Family Proceedings Act 1980, the Guardianship Act 1968, and the Children, Young Persons, and Their Families Act 1989.[153]
499 The one- to one-and-a-half-hour, judge-led mediation conference is an opportunity to discuss settlement, and often results in a consent order.
500 Settlement conferences are held regularly for other Family Court proceedings, especially relationship property matters, before a hearing is set.
501 A settlement conference is an important stage on the court track – the first chance for parties to put their case to a judge, and to settle before a full defended hearing. Judges are likely to be directive, and may indicate likely outcomes.
502 There should be an opportunity for a judge-led conference in all Family Court proceedings.
503 It should, ideally, operate on mediation principles so that options are explored. We would prefer it be renamed so as to distinguish it from the mediation that we recommend be part of the conciliation service.
504 Judicial authority will encourage some parties to resolve matters, even where the judge operates on an interest-based rather than an evaluative model. It remains to be seen whether judge-led mediation success rates will drop if parties have been offered mediation earlier, and only the more entrenched disputes enter the court track.
Recommendation
Legislation should be amended to provide settlement conferences in all Family Court proceedings; the judge-led mediation conference provided by section 13 Family Proceedings Act 1980 should no longer be available.
505 Until now, the Family Court, unlike the District and High Courts, has not had its own comprehensive set of rules. Instead, separate rules have covered different statutory jurisdictions: Family Proceedings Rules 1981 (covering proceedings under the Family Proceedings Act 1980 and the Guardianship Act 1968); Property (Relationships) Rules 2001; Child Support Rules 1992 and so on. Most of these are less than comprehensive and where no procedure is specified, refer to the District Courts Rules 1992, adding unnecessarily to the mystique and complexity of Court proceedings.
506 New stand-alone Family Court Rules governing practice and procedure came into force on 21 October 2002. They do not substantively change existing rules under various family law statutes, merely consolidate them, and incorporate applicable parts of the District Courts Rules in Family Court proceedings.
507 We believe the new rules are more user-friendly and accessible, and will obviate the need to draw up separate rules for each new Act involving Family Court proceedings.
508 We hope more work will be done to simplify and standardise court forms, which seem unnecessarily complicated.
Recommendation
New standardised Family Court Rules, which came into operation on 21 October 2002, should be monitored to ensure they are easy to understand and use. Standard forms provided for in the rules should be easy to follow and complete.
509 Differentiated case management allows different time tracks for cases, depending on complexity, the need for discovery, services and protection, and unusual emotional factors. It is particularly useful in providing firm deadlines and timeframes for high-conflict custody cases.
510 Proactive judicial interventions that depart from standard tracks have successfully speeded up resolution. For example, under the docket system trialled by Judges Doogue and Boshier in the Auckland Court, earlier appointment of counsel for the child or earlier authorisation of section 29A psychologist’s reports reduced considerably average case completion times.[154] Such flexibility does not need to be tied to a docket system but is more achievable where only one or two judges handle a case.
Recommendation
There should be differentiated case management so that cases are progressed in the most efficient, appropriate manner for each case.
511 A docket system allows a case to remain with one judge, or a team of two, during its progress through the Court. This was trialled in the Auckland Family Court, and discussed in our preliminary paper.[155] The six Auckland Family Court judges have continued the system.
512 Having a file dealt with by one or two judges saves considerable time over the life of a case, compared with random allocation of cases from a list to whichever judge happens to be sitting on the day the matter is called. It also reduces the adjournments sought and granted, because when one person or a team controls a file, they can maintain expectations of actions occurring when they are scheduled to occur, and make it less likely that excuses for inaction will result in delay.
513 The Department for Courts believes that the new Family Court operational model ensuring one case officer/case progressor controls a file, will allow enough individual attention. We agree this will improve file administration, but do not believe it obviates the need for a judicial team approach. Registrars/case progressors have only limited extra powers. Judges will still deal with case conferences, disputed directions, non-standard interlocutory applications and hearings. Management by one or two judges will save judge time and lessen the chance of delay.
514 We appreciate the problems in developing a nationwide one-judge or judicial team approach. Illness or leave will mean allocated judges are unavailable on particular days for particular matters. But such occasions will be the exception, and must be managed in any system.
515 It should not be difficult to operate two-judge teams in larger Courts with several resident judges. The Auckland Family Court docket trial found that having a two-judge team working week on, week off, allowed each judge, in his or her week off, to do other Family Court work, such as mental health matters, or to be available for District Court matters.
516 It should not be a problem in small Courts served by the same resident or circuit judge, either. These are already operating on a one-judge, one-case approach.
517 It would be a problem where circuit courts are served irregularly by different judges, and where judges from outside the area are frequently used.
518 We would like to think that any problems arising from incorporating this approach into the rosters of judges would not be insurmountable. A one-judge or two-judge team approach should be possible in a system that has enough judicial resources to cover illness and leave with temporary warranted judges, and all other work by permanent rostered appointments.
519 We consider such an approach allows for more proactive control of cases, that it will reduce delays for litigants, and overall demands on judicial time.
520 It has been suggested that for successful team operation, case progressors be attached to judges – the model the Employment Mediation Service uses.[156] Then, administrative support for case management and judge/decision-maker work together to progress the file, and freely sharing information reinforces compliance.
521 Smaller Courts, with one or two case progressors, already effectively have a team approach if judges are rostered by docket.
522 This “matching” will be impossible in larger Courts where case progressors specialise in certain areas. We doubt, though, that this will be less efficient if a team approach is generally encouraged in each Court.
Recommendations
Administrative systems and rosters for judges should aim to refer files to the same judge, or to one of a two-judge team, on each call in court. This will save judges time familiarising themselves with files, and make for more efficient progress by letting one or two judges accumulate knowledge of a case.
Case progressors, judges, and Family Court co-ordinators should liaise to bring to bear on cases all available resources in the most efficient way possible.
523 Meaningful caseflow management requires litigants and lawyers to respect the Court’s directions. Sanctions should follow where parties fail to comply with directions and have not applied for variation of directions. When the delay is not the fault of parties themselves, these sanctions might have to be imposed on dilatory lawyers.
524 The Family Law Section expressed concern at the Court’s failure to require adequate performance from parties and their lawyers by means of appropriate sanctions. Orders can include prohibiting parties from filing further evidence or defending an application. The rules provide for such sanctions but they are seldom imposed.
Recommendation
The Family Court should impose sanctions for failure to comply with Court directions.
525 We received many submissions from those disillusioned with Family Court processes because, in spite of having obtained court orders, a party refused to comply, and the other felt there was no effective enforcement.
526 This can be an issue for property orders, although most submissions we received related to childcare arrangements.
527 A full solution is beyond our terms of reference because substantive law changes would be required; for example, new types of orders for enforcement, or new penalties. What the Court can do is limited unless its powers are extended by such statutory changes.
528 The following typical scenario illustrates the problem: Party A gets an access order that the child should be available to be picked up at 10.00am Saturday and returned at 5.00pm. But, when Party A arrives, the child is not there. On other occasions excuses are made that the child is sick or had another appointment and is not available for access. No alternative access is offered.
529 Someone who hinders or prevents access to a child by someone entitled to it under a court order is liable to summary conviction and a fine not exceeding $1000.[157] A conviction can only result from a summary prosecution in the District Court. Imposition of the penalty is not a Family Court procedure but a criminal matter and dealt with in the District Court.
530 Someone who hinders or prevents access is also subject to punishment for contempt of court.[158]
531 Compliance might possibly be more effectively enforced in the Family Court, with penalties imposed by Family Court judges. To action such a penalty, Party A would have to file a complaint.
532 Another option for Party A is to apply to the Family Court for a warrant to have the child uplifted by a police officer or social worker. This requires a separate application, and is the only way a party can get police help to enforce an access order. It may, of course, exacerbate the situation and upset the child if Party A arrives for access accompanied by police.
533 Applying for a warrant usually costs the applicant further legal fees, not to mention more time and trouble. Also, there is no guarantee it will be effective in securing long-term access.
534 It would be an unusual case where parties co-operated throughout the Court process and problems arose only later, in exercising access. Such situations would usually show signs of difficulty during the hearing and before an order was made. We hope the chances of orders being made but not complied with would be reduced by judges being proactive, possibly referring high-conflict cases for specialist help, and fast tracking them to decisions. We believe high-conflict cases must be identified, controlled and managed.
535 There will, however, inevitably be cases where access problems arise after orders have been made, and these require intervention if access is to occur. Sometimes, enforcing compliance will not be in the child’s best interest and might cause trauma. Such cases might indicate the need for changing custody arrangements. For others, this will not be possible or desirable. Punishing the unco-operative party might often be more effective than issuing a warrant, which inevitably involves the child.
536 Punishment is more likely to change behaviour if it is combined with referral to specialist counselling. This resembles the Domestic Violence Act 1995 model, whereby not only is a protection order obtained but the respondent referred to an anger management programme.
537 In some high-conflict cases it may be appropriate for the Court to authorise a warrant when the access order is made. This would simplify enforcement in the event of non-compliance.
Recommendation
Most options for enforcing court orders require changing the law, and are beyond the scope of this paper. Compliance might be improved by conciliation services that include specialist family assistance. Identification of high-conflict cases and intervention by judges might also help.
538 Granting orders without notice to the other side is one of the most contentious Family Court issues, and prompts the most complaints. The principle that a judge should not make a decision without hearing both sides of a case is a basic tenet of our legal system. Any departure from it must be seen as an exception that only special circumstances can justify.
539 The law has, however, always allowed applications to be heard without notice to the other side in an emergency, or when proceeding on notice would seriously harm the applying party. Such situations arise in the Family Court when applicants seek protection from violence, or where children are at risk of serious harm. Orders may be made under the Domestic Violence Act 1995, the Guardianship Act 1968, and the Children, Young Persons, and Their Families Act 1989.
540 Although the statutes are worded in gender-neutral terms, most applicants under the Domestic Violence Act 1995 (more than 95 per cent) are women, and most respondents, men. We believe that much recent, negative Family Court publicity is a result of the way without-notice applications are handled. Men complain that the Court grants these applications far too readily, and that by the time they are aware orders have been made, there is little they can do.
541 Two issues arise:
• Do the statutes recognise fairly – in substantive law and process – the interests of respondents as well as applicants?
• How can current or future processes be made to work better, and what are the resource implications?
Perspectives of applicants and respondents
542 Many applications are made without notice to the respondent because applicants fear they will be at increased risk if the respondent knows they are going to court and intending to end the relationship.[159]
543 At the same time as applying for protection, many applicants apply for orders to exclude the respondent from the family home (tenancy or occupation orders), and to get possession of household goods (a furniture order). An interim custody order may also be sought for any children of the household.
544 If the applicant proves her case, the respondent may find himself forbidden to contact her, ordered out of his home, and barred from contact with his children. If the orders are made without notice to the respondent, he will have had no chance to put to the Court his side of the story. He will also be ordered to attend individual counselling or a group programme for violent men.
545 The Domestic Violence Act 1995 provides for a defended hearing within 42 days,[160] but often courts cannot comply, and the respondent continues to be barred from his home. He might possibly arrange a couple of hours fortnightly supervised access at a Barnardos Centre, but it is likely to take months to make better arrangements for seeing his children.
546 Women and children must be able to get protection urgently. If procedures are made more difficult, they may be deterred from applying when it is crucial. Some women take a long time to summon up the courage to seek help and should not be discouraged. They can also be at increased risk of violence when they apply for orders, and such circumstances justify granting relief without notice. But because granting relief without notice runs counter to fundamental principles, it is crucial that courts act within strict parameters.
Interim protection threshold
547 There are two issues:
• Are the tests for obtaining an order without notice stringent enough?
• Are the respondent’s rights and interests acknowledged sufficiently?
548 To obtain a protection order without notice, the applicant must satisfy two tests:
1 that the respondent is or has been violent to the applicant or a child of the family, and that an order is necessary to protect the applicant or child;[161]
2 that delay caused by proceeding on notice would or might entail a risk of harm or undue hardship.[162]
549 The Court must take into account the perception and effect of the violence on the applicant or child. It does not have to take explicit account of the effect of making the order on the respondent, or take his interests into account.[163]
550 Without-notice occupation, tenancy, and furniture orders are more intrusive, and there is a higher threshold: the Court must be satisfied that the respondent has physically or sexually abused the applicant or the child and that delay caused by proceeding on notice “would or might expose (them) to physical or sexual abuse”.[164]
551 In all cases, the applicant and her lawyer must meet certain obligations. The “Caseflow Management Practice Note on the Domestic Violence Act” requires affidavit evidence to disclose fully and frankly all relevant circumstances, whether or not they benefit the applicant. The application should specifically include the material upon which the ex parte action is said to justified. The Domestic Violence Rules 1996[165] require counsel to certify that affidavits are based on all reasonable enquiries, that counsel is satisfied they comply with the rules, and the order ought to be made.
552 In some Australian States, judges have a specific duty[166] to take account of access arrangements and respondent hardship before making a without-notice protection order. This might have a place in our statute if it came second to safety, as in some Australian statutes.
553 We question how a respondent’s interests can be considered adequately without his input.
554 Judges will be most willing to grant orders without notice where there is evidence of physical violence or serious threats, putting an applicant or child at risk.
555 A judge granting an order without notice should issue a brief minute giving his or her reasons for doing so, if these orders are not to seem arbitrary. This is not currently done, and would take up more judge time.
556 Instead of applying without notice, an applicant can and sometimes does, in less urgent cases, apply with notice to the respondent but requesting an abridgement of time for filing a defence. The respondent must then respond sooner than the usual 21 days for a defence: three hours, 24 hours, or up to three days, depending on the circumstances.
557 Where an application is made without notice, the judge always has the discretion to put the matter on notice, whether a matter of hours or days.
558 Another potential option for a without-notice application, when the respondent’s whereabouts are known or he or she is represented, would be for the judge to consider whether the respondent should have an opportunity to attend the hearing (either personally or by telephone).
559 This is not current practice; the Principal Family Court Judge’s practice note rules it out, requiring counsel to proceed either with or without notice, and imposing a high duty of candour on counsel proceeding without notice.
560 This may partly be because such a procedure would make serious practical difficulties for the Family Court, because most without-notice protection orders are dealt with on the papers at a central court. Often the respondent will not have a lawyer and may be difficult to contact.
561 We doubt natural justice would be served by such a process. The respondent will probably be unrepresented, with no notice of what has been said. He is unlikely to be able properly to represent himself. The Court will be unable to reach a considered decision in the time available. The respondent is likely to be dissatisfied and his rights prejudiced.
562 We consider it better to hear short causes promptly after the respondent has had notice and been able to seek legal advice.
Immediate review and full contested hearing
563 The issues here are:
• Should legislation set a return date separate from the full defended hearing date?
• Should the Court set a return date within seven days, so it can be given relevant information and consider access issues?
• What will allow defended hearings to be held within the statutory 42 days?
564 Under a without-notice interim protection order, the respondent has five days to object to the direction to attend the programme,[167] and three months to file a defence to the temporary protection order.[168] If he files a defence, a hearing must be allocated within 42 days. If no defence is filed, the temporary protection order becomes final after three months.[169] Some Courts provide a review date within ten to 14 days (often longer for satellite courts).
565 We consider respondents should have the chance to put their side of the story within seven days of a without-notice order, and at a fixed date and time. Return date hearings for satellite courts may need to be by telephone. The importance of the return date is that it ensures there is an early opportunity for the person against whom the order operates to be heard in some way. If the respondent can prove on the return date that the without-notice order was made without justification, the Court could consider rescinding the order immediately.
566 A brief return date hearing may also set up temporary access arrangements.
567 Where urgent orders are made, it may help respondents to talk the matter through with the Family Court co-ordinator, who might advise him of his options. This is no substitute for a quick return hearing, but another channel.
568 It might be appropriate to refer some cases to counselling, but where there is high conflict or persistent violence (the situations typically demanding urgent intervention), it is inappropriate to require joint participation in any process. Separate counselling or other expert intervention may be helpful. Domestic violence programmes for perpetrators, victims, and children are designed to address these issues.
569 If the protection order is still contested after the short return hearing, there will have to be a full defended hearing.
570 The Department for Courts commissioned an evaluation of procedures under the Domestic Violence Act 1995 in 2000,[170] and further research in 2002,[171] into reasons why Family Courts are unable to timetable defended protection hearings within the 42 days required by the Act.[172] The research indicates not only wide national variation in practice but widely differing approaches to implementing the legislation.
571 Informants agreed that the most common reason for delay was lack of available court time, especially in satellite courts, which have hearing days every six to eight weeks.
572 Delays were compounded when domestic violence proceedings were combined with other proceedings, such as custody and access. The hearing time was longer and specialised evidence had to be obtained.
573 Sometimes parties sought adjournments to bargain about promises given or programmes completed in return for withdrawal of an application. This may be effective but can sometimes expose the applicant to risk.
574 Waiting to resolve criminal matters can delay the Family Court hearing. But we question whether a protection order hearing in the Family Court should be delayed by a hold-up in criminal proceedings arising out of the same incident. Where children are not involved, a delay may not matter, but if there are children, it is not in their best interests to defer the domestic violence issue.
575 Protection from violence, and custody and access, are two separate matters and the Court must determine whether violence has occurred before it can properly deal with risk to the children. The Court cannot be satisfied about this risk without knowing whether violence occurred, and what its nature and circumstances were. The Court cannot know what evidence it needs to determine custody and access risk issues without knowing the outcome of the protection order application.
576 Our proposals have serious resource implications for the Family Court. About 6000 applications are made every year. These cannot be predicted, and are often filed at satellite courts where no judge is sitting. Our proposals would necessitate much more judge time and administrative support, and could not be implemented on the basis of current resources.
Recommendations
Orders must only be made on without-notice applications when requiring notice would be likely to cause substantial harm. Specific evidence of the need should be provided.
Wherever possible, such applications should be put on notice with time abridged.
Judges should issue a minute giving reasons for any without-notice order.
The effect of requiring judges to take into account access arrangements, or any hardship to a respondent, should be considered.
The Family Court should be resourced so a definite return date within seven days can be set when the order is served.
The Family Court should be resourced so defended hearings take place within the 42 days stipulated by the Domestic Violence Act 1995.
Defended domestic violence hearings should not be delayed for parallel criminal proceedings or custody and access hearings.
Ex parte applications under the Guardianship Act 1968
577 Without-notice applications under the Guardianship Act 1968 that deal with custody and access arrangements are also a major concern. Here, we are dealing with orders not tied to protection orders. Applications may be filed on a without-notice basis where there is great urgency.
578 Where someone applies to prevent a child from being taken from New Zealand, the situation may be so urgent there is no alternative to dealing with it without notice. Once the order is made the matter can proceed through the Court with all parties having the opportunity to be heard.
579 When an applicant wants to change the status quo or a court order, and there is no serious risk to the child or of the respondent being about to abscond with the child, there is no reason to deal with it without notice to the respondent. A shortened response time and an urgent interim hearing can still be directed where appropriate.
580 If serious harm is alleged and an order made without notice, it is crucial that the Court has resources to investigate and respond to allegations as quickly as possible. As matters stand, if a child’s care arrangements are changed in response to a without-notice application, it may be months before the facts can be ascertained, and by then the child is resettled in the new environment and it is difficult to re-establish the status quo. Such delays encourage applicants to exaggerate claims while giving them a chance to move a child to a new situation that the Court may be unwilling to disturb.
581 Where children are taken to another town without the knowledge of the second parent, we suggest a general practice whereby the second parent applies to the Court, the children are returned immediately, and the matter brought before the Court for urgent determination. If the child is allowed to remain in the new location and the determination is delayed months during which the child is settled in a new school, a new circle of friends, and a new family environment, it becomes difficult to send the child back.[173]
582 If the Court could respond quickly and assertively in such situations, parents would be deterred from taking such unilateral action without notifying the other parent or applying to the Court for permission.
Recommendations
Without-notice applications for a change in custody should be put on notice with abridgement of time, unless there is a serious risk of harm to the child.
Where a child is taken somewhere else in New Zealand against the wishes of the other parent, there should normally be an order to return the child pending a hearing in the Court closest to the child’s old home.
Section 16B Guardianship Act 1968
583 Section 16B of the Guardianship Act 1968 bars a violent parent from custody of, or access to, a child until it has been shown that the parent poses no risk. Many submissions we received suggested that if the violence had not been directed at the child but to the other parent, this was no reason to restrict contact.
584 Section 16B is based on the premise that a child present during violent episodes, and living in a family where violence occurs, is already at risk; it is not necessary for the child to be a target before his or her safety is called into question. The nature and history of the violence should be assessed.
585 Endemic violence raises more serious issues than violence in a crisis. There will be situations where contact with the child is completely inappropriate. In others, supervised access may be an option if the perpetrator is willing to examine his or her violence, and attend anger management courses. In still other situations, contact between perpetrator and child might be reinstated without supervision, once there has been an investigation.
586 The problem for the Court lies in investigating and assessing risk factors quickly enough to avoid exacerbating any initial estrangement between child and parent.
587 The Family Law Section was in favour of an Invercargill Family Court practice whereby counsel for the child is asked to report urgently to the Court after a protection order is made and access suspended. In this situation, counsel is effectively providing a concise social work report. The Family Law Section notes that this procedure ensures the child’s wishes are discovered early in the proceedings, and the respondent’s access not delayed enough to impact on their relationship. We do not consider, however, that counsel for the child has the experience and training for such assessments. Counsel for the child may be able to report what the child says, but that does not take into account context and safety. Most children want contact with a parent regardless of abuse. Safety must also be assessed.
588 We are concerned at delays resulting from correct application of section 16B. We believe these issues should be assessed more quickly than has been the practice in most New Zealand Family Courts. But to allow people who are not qualified to make assessments or to give evidence to report to the Court is to evade section 16B and compromise the best interests of children.
589 The Court needs access to social workers, psychologists, or others with the necessary qualifications who can respond speedily to a request for a report. The fact that counsel for the child is readily available does not mean he or she should be given this task.
590 Where applicant, respondent, and child have attended separate programmes under the Domestic Violence Act 1995, there is probably a better chance of resolving access issues. They will each understand themselves and their family situation better, and this will facilitate a safe way forward. We advocate that Courts and lawyers for parties make every effort to encourage programme attendance, especially if section 16B issues have been raised.
Recommendation
The Family Court should have the resources to deal quickly with issues arising after an application for a protection order under section 16B of the Guardianship Act 1968. The timeframe cannot be specified and will depend on the allegations. Obtaining social work or psychological reports within, say, three weeks would help greatly in disposing of these matters faster.
Supervised access
591 Supervised access will sometimes be necessary for the foreseeable future; if, for example, a parent has continuing mental health problems and poses a risk. Where supervised access is ordered after an application for a domestic protection order and before all section 16B issues are investigated the order should normally be temporary. Either the violent parent completes certain programmes and/or attends counselling, so the Court can be satisfied the child is not in danger during unsupervised access, or the parent is an ongoing risk and may not be allowed access at all.
592 Access centre supervisors report that supervised access is sometimes ordered, and then neither party takes the matter back to court because of litigation fatigue, lack of funds, or the expectation of a worse outcome, and supervised access continues indefinitely. Supervised access centres do not see long-term supervised access as good practice.
593 Supervised access orders should, perhaps, include a review date when the matter will be brought back for a judge to reassess. On balance, we are reluctant to recommend imposing such a review and taking up valuable court time unless there is new information. Our conclusion would be different if it could be shown that children were being adversely affected. There would have to be more information on the circumstances in which this arises and how often it occurs. In future, Family Court conciliation services could be asked to help in such situations.
Children, Young Persons, and Their Families Act 1989
594 The CYPF Act requires hearings of applications for declarations to start within 60 days of filing, unless there are special circumstances.
595 The time limit is imposed because these are often situations where a child has been taken from his or her family, and there is the question of whether the child should be returned to the same household or an alternative long-term placement found. Determining the application is a necessary prerequisite for final decisions. If these decisions are delayed, a young child’s long-term placement can be deferred for several months, which is never in the child’s best interests.
596 Where a child is uplifted pursuant to an emergency warrant, the CYPF Act requires the child to be brought before the Family Court within five days.[174] Section 5 of the Children, Young Persons, and Their Families Act 1989 requires that parents be informed of any action or decision made under the Act. The parent can apply for access to the child or for the child to be released.[175] If the matter is not resolved an application for a declaration that the child is in need of care and protection continues under section 67 of the CYPF Act.
597 A family group conference will not have been held where a child has been removed on an emergency warrant. A conference must be held before the matter can proceed to a court hearing. A family group conference must, therefore, be convened and held within the 60-day period so the hearing can proceed if the matter is not resolved. The Family Court is not responsible for holding family group conferences and can only require adequate performance from Child, Youth and Family Services (CYFS), which is obliged to hold a conference within the statutory timeframe. It has its own performance standards but they are not always met.
598 Delay in filing evidence also results in lack of readiness for hearing. Sometimes respondents delay filing evidence, but often social workers are late in supplying the Court with relevant evidence.
599 In June 2002, the Department for Courts published a report commissioned to discover why the Family Court sometimes fails to comply with the 60-day rule.[176] Research informants agreed that an opposed application for a declaration under section 67 rarely began within this timeframe.
600 Researchers uncovered disagreement as to what constituted a hearing within the meaning of section 200 of the CYPF Act. Some informants considered a pre-hearing conference met the 60-day requirement. Others thought that determining the application for declaration was required, and still others, that the declaration, the plan, and orders made under the plan were required to satisfy the section.
601 The research found that CYFS process delays were the most common reason for hearings not starting within the time limit. These included delays convening the family group conference and reporting on its outcomes. In small satellite courts, lack of judicial resources and hearing time were, regardless of case complexity, the most frequently cited causes of delay. For complex defended cases, timetabling issues caused delays in all Courts, regardless of their size.
602 Small Courts, those with ethnically diverse populations, and those serving poorer areas faced additional challenges in meeting statutory deadlines.
603 Some Courts are unwilling to hold hearings for the declaration application until a plan is available, so disposition orders can be made.
604 If a declaration hearing were delayed for preparation of the plan, and a declaration eventually found to be unnecessary, resources would have been wasted. The legislation clearly intends the declaration to be made and then the plan prepared within a further period not exceeding 28 days.[177]
605 In many cases, the declaration is not the most contested aspect of the proceeding. Caregivers might be willing to concede that the child is in need of care and protection but unwilling to agree to care proposals from CYFS.
606 To allow a child certainty, the declaration and any orders required for implementing the plan should be decided as soon as possible. The plan determines whether or not the child’s placement is permanent, or what steps must be taken to provide temporary relief and later reintegrate the child into the family. The younger the child, the more urgent the need for certainty.
607 Wellington and Porirua Family Courts have issued new practice directions in an effort to have applications for declarations heard within statutory timeframes. They are requesting CYFS compliance with its own performance standards, which require a family group conference to be held within six weeks or 30 working days. They also require CYFS evidence to be complete when the application is filed. Reports from psychologists and others, under section 178 of the CYPF Act, will not be expected before the care and protection issue is resolved, and the plan is to be approved. Any evidence parents or custodians want to file in response to the application will normally be filed as soon as possible after the family group conference.
608 The Wellington and Porirua Family Courts have asked the legal profession and CYFS to co-operate in implementing these proposals. There are likely to be difficulties with judicial rostering and with compliance with performance standards by CYFS for a variety of reasons. This is an area where CYFS resources should be improved if it is to work effectively with the Court in children’s best interests.
609 Co-operation between CYFS and the Family Court allows for various ways of progressing matters. The Family Law Section suggested family group conferences be held within 14 days of an application being filed in the Court, and the registrar’s list hearing allocated 14 days after filing, so that a report on the conference outcome will then be available to the Court. The Family Law Section suggested that CYFS file any further evidence within ten days, and that parties opposing have 21 days to comply. This would ensure the hearing goes ahead within the 60-day limit.
610 These timeframes may be unrealistic for CYFS, but the essential aim is similar to that of the Wellington trial: to have the family group conference held and evidence filed so the matter can be set down for hearing within 60 days.
611 The Family Law Section suggests that these deadlines would allow a mediation conference to be held before a hearing within the 60 days. The Commission acknowledges that mediation settlement conferences are not used often enough in care and protection proceedings. After a family group conference has been held and evidence filed, a judge-led conference may be a way of resolving matters short of a hearing.
Recommendations
Child, Youth and Family Services should have the resources to carry out its responsibilities under the CYPF Act in care and protection hearings.
The Family Court should have the resources to provide hearing time for preliminary issues and the final hearing within the 60 days prescribed by the CYPF Act.
Relationship property
612 The Family Law Section queried whether mediation was appropriate for resolving relationship property disputes. It believes a mediator would need specialised legal knowledge and experience in relationship property disputes, and that full disclosure of the financial and other information of the parties would be necessary before mediation could take place. In such situations, they see a settlement conference with a judge as a better option.
613 We accept that mediation may not be the most appropriate dispute resolution process in cases involving complicated legal issues about the status of property, or accounting evidence. Many property disputes, however, involve few assets more than a home, family chattels, and modest retirement investments, and where the parties are quite capable of understanding the legal issues. Such disputes are amenable to mediation. Appropriate preliminary conferencing should identify cases unsuitable or unready for mediation.
614 The Family Law Section is also concerned with the progress of relationship property matters through the Court. There are often repeated calls in registrars’ lists, and the Court sometimes fails to use sanctions to enforce its directions. It suggests that after the first registrar’s list, relationship property matters should be timetabled for a judicial conference (possibly by telephone). A standard timetabling memorandum should be sent to both parties before this conference as a formal checklist of issues and directions to be covered.
615 On 1 September 2002, a new practice note, “New Family Court Rules”, was issued for relationship property proceedings, to come into force on 21 October 2002. It provides that:
• with the application, the applicant must file an affidavit giving basic information about the disputed property, the issues, and proposals for dividing it;
• the respondent must file a similar affidavit within four weeks;
• within a further seven days, counsel must file a joint (or individual) memorandum of issues, and state what alternative dispute resolution has been attempted;
• a judicial issues conference must be set down, whenever possible within six weeks; parties are to file affidavits of assets and liabilities before this conference, and to attend with counsel;
• a registrar’s list date is to be set at the time of filing so the above steps can be monitored;
• at the issues conference the judge may make other directions if required, or settle issues, or set the matter down for a settlement conference or a hearing;
• matters being monitored in the registrar’s list will be moved to the judge’s list in the case of delays or non-compliance;
• standard track cases to conclude within six months of filing, and complex cases within nine months;
• counsel are to be aware of the Court’s power to award costs for delay and non-compliance with directions;
The practice note addresses complaints we received about lack of sanction for non-compliance, and frequent unproductive calls in registrar’s lists.
Recommendation
The Family Court should enforce directions in relationship property matters more strictly. The new practice note, “New Family Court Rules”, in force from 21 October 2002 is designed to address these issues.
Spousal maintenance
616 Since amendments to the Property (Relationships) Amendment Act 2001 and the Family Proceedings Amendment Act 2001, applications for spousal maintenance need to be considered alongside applications for division of relationship property. Where applications are filed under both statutes, dispute resolution processes will have to deal with both applications simultaneously.
Recommendation
Where applications are filed for relationship property orders and spousal maintenance, the two matters will have to be progressed simultaneously through conciliation services and the Court process.
Adoption Act 1955
617 Where a father is not a child’s guardian, he does not, under the Adoption Act, have to consent to an adoption. Section 7(3)(b) states that where the father is not a guardian “the court may in any such case require the consent of the father if in the opinion of the court it is expedient to do so”. New adoption legislation is expected soon, and it is unclear what rights it may give the father. However, because the Court has a discretion to require paternal consent, it seems appropriate to standardise procedure for determining the identity of a proposed adoptee’s father, and make an effort to get his view before making an adoption order.
618 An affidavit could be required from the mother. The Court could also appoint a social worker or counsel to help make enquiries and report back.
Recommendation
There should be a standard procedure for ascertaining the wishes of the non-guardian father when the mother consents to release the child for adoption.
Child Support Act 1991
619 Our preliminary paper questioned whether conciliation ought to be available for applications for departure orders that have already been before a review officer. The Family Law Section welcomes the opportunity for early conciliation, as it considers the standard 13-week timeframe to hearing a departure order is a problem, especially in the case of a suspension order pending the final outcome.
620 The Family Law Section pointed out the limited opportunities for parental agreement, especially if one parent is receiving a State benefit. It also questioned whether the custodial parent should have to provide an affidavit of financial circumstances. Because the legislation requires that there be special circumstances, and equity between the custodial parent, the liable parent and the child, we consider this information from the custodial parent is necessary.
621 A mediation referral might not be appropriate in some cases, but this should be assessed at a preliminary stage so mediation can be made available where appropriate.
Recommendation
Conciliation services mediation should be an available option where appropriate, for applications under the Child Support Act 1991.
Mental health
622 Family Court jurisdiction over mental health matters is governed by the Mental Health (Compulsory Assessment and Treatment) Act 1992. Any procedural changes would require amendment of the legislation.
623 The Family Law Section has raised the possibility of assessments under section 16 of the Act being carried out by another specialist body, and the Court retaining an appellate function. This proposal is beyond our terms of reference, but if such an option were to eventuate, it would free up much Family Court judge time. Several days of judge time per month are likely to be spent on applications under the Mental Health (Compulsory Assessment and Treatment) Act 1992 in courts adjacent to mental health facilities. The Wellington Family Court allocates two mornings a week for such work from Porirua, Wellington and Lower Hutt hospitals. The time is always completely filled, and urgent mental health applications are dealt with outside it.
624 The proposal raises issues about the Court’s protective jurisdiction, and whether it is appropriate for other bodies to take it over.
Recommendation
There should be further investigation of the feasibility and advisability of setting up a specialist body to assess applications under section 16 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, while reserving an appellate function to the Family Court. Such a change would require amendment of the Act.
Dissolution of marriage
625 When parties apply for dissolution (divorce), they can request the matter be heard by the Family Court, or choose to have it dealt with on the filed papers. The registrar deals with almost all dissolutions, whether by a single or joint application, without the need for an appearance. The Court has to be satisfied adequate arrangements have been made for any dependent children. The only ground for defending an application is that the parties have not been living apart for the requisite two years.
626 The question arises as to whether dissolution need any longer be a matter for the Court. It could, perhaps, be dealt with by the office of the Registrar of Births Deaths and Marriages, with applicants referred to the Family Court only if the application was defended or if child-related issues arose.
627 Dissolution of marriage changes the legal status of parties, and the traditional view has been that a court should confer such a change of status. But marrying also involves a change of status, and the office of the Registrar of Births Deaths and Marriages manages these applications. Given present procedures for dissolution, should that office not be able to undo what it has done?
Recommendation
The possibility of transferring responsibility for simple dissolutions of marriage to the office of the Registrar of Births Deaths and Marriages should be considered.
Sexual abuse allegations
628 Allegations of the sexual abuse of young children are among the most difficult issues the Family Court deals with.
629 These can come to the Court’s attention via applications for declaration that a child is in need of care and protection under the CYPF Act or the Guardianship Act 1968, when the allegation is made by one parent against the other.
630 When an older child can give intelligible, testable evidence, there is usually no great difficulty. Neither is there difficulty when there is clear physical evidence, such as penetration injury, a sexually transmitted disease, or presence of semen. In such circumstances, a criminal prosecution is likely, and even if a conviction does not result, an order protecting the child can be granted on the evidential standard of balance of probabilities.
631 Difficulties arise with young children, particularly pre-schoolers or children who are developmentally delayed. There may be no physical or medical evidence. Concerns can arise from something the child has said, a drawing the child has done, or because of his or her sexualised behaviour. Evidential interviews often do not elicit more evidence.
632 In this situation, the child is given therapy, during which it is hoped he or she will make further disclosures. Unfortunately, in terms of evidence, any information yielded by such sessions is likely to be contaminated by suggestion, repetition, or leading questions.
633 The caregiver who originally alleged the abuse may then reinforce behaviour that suggests abuse has occurred. The child will pick up on the caregiver’s anxiety and concern, and the truth becomes increasingly hard to discern.
634 We know there is sexual abuse in the community. We know it from those convicted of such offences, and from facts such as young children presenting with sexually transmitted diseases. Community concern about sexual abuse has led to heightened sensitivity on the issue – concern, which in some circumstances may not be justified.
635 Submissions we have received suggest judges, counsel for the child, and lawyers for parties need more training about sexual abuse issues: about how children may still want a relationship with their abuser; about circumstances in which a child retracts allegations; and about the kinds of behaviour to expect from an abuser.
636 Some counsellors and therapists in the community are concerned about lack of action to protect children, and about the failure of the Family Court to make findings of sexual abuse.
637 The Family Court is sometimes unable to determine that sexual abuse has occurred when the full range of information comes to light at the final hearing. That information might raise questions about the behaviour of the parent who reported the abuse, and whether that parent’s behaviour or the child’s therapy has contaminated the evidence. There may well have been abuse, but the process might have tainted the evidence or prevented the full range of information from emerging until the hearing.
Process
638 Child, Youth and Family Services will normally remove a child living with an alleged abuser if there is sufficient evidence, and, if the matter cannot be resolved, an application for a declaration will be filed. Police may also be involved with a view to prosecution.
639 Where the alleged abuser is not a member of the child’s household, the Police are likely to deal with the matter, unless the child’s family are unwilling to keep the child away from the alleged abuser, in which case CYFS will step in.
640 Where the alleged abuser is a child’s parent but not a primary caregiver, CYFS may not intervene if the accusing parent prevents contact between the child and the alleged abuser, in which case the service considers the child no longer at risk or in need of care and protection. Again, this does not rule out the possibility of a prosecution.
641 In this case, there can be long delays before the Family Court deals with the sexual abuse allegation, because the allegation becomes one factor in a custody and access dispute. During the wait for a hearing there are ongoing opportunities for the evidence to be contaminated.
642 Those involved, including the child, could be spared agony if there were a clear protocol for dealing with such matters, and priority given to completing enquiries, gathering evidence, and allocating hearing time.
643 We believe specialist teams should be set up to deal with all Family Court sexual abuse cases. The team should include CYFS social workers (or Iwi Social Service social workers), the Police, CYFS lawyers, specialist report writers, and skilled counsel for the child.
644 We consider that any allegation of child sexual abuse should be referred immediately to CYFS, which should be obliged to make immediate application that the child is in need of care and protection. Any proceedings initiated under the Guardianship Act 1968 should be put in abeyance until the sexual abuse care and protection issue has been dealt with. Child, Youth and Family Services would need to be resourced specifically to give this work sufficient priority.
645 Lawyers, report writers, and counsel for the child involved in such cases should have specialist training. The Court should prioritise any case that includes such an allegation so that the hearing takes place as soon after the initial allegation as possible.
646 There are not many defended sexual abuse cases. They would take up less time and have more satisfactory outcomes for all concerned if there were one procedure to deal with such cases, and they were the priority of specialist teams involved from the outset.
Recommendations
Specialist teams should be set up to deal with all Family Court cases where sexual abuse is alleged.
Whenever sexual abuse is alleged, CYFS should be obliged to make application that the child is in need of care and protection. Where proceedings are initiated under the Guardianship Act 1968, they should be put in abeyance until the sexual abuse care and protection issue has been dealt with. Such cases should be heard as soon as possible.
Child, Youth and Family Services would need resources to give this work priority.
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URL: http://www.nzlii.org/nz/other/nzlc/report/R82/R82-10_.html