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• Priorities
• Recommendations

18. Implementation and summary of recommendations

PRIORITIES

1026 OUR RECOMMENDATIONS fall into two main categories:

• those requiring efficiencies in, and extra resources for, the existing system; and

• those requiring new services.

1027 We believe priority should be given to the first category, which necessitates upskilling staff and improving their pay. Doing so might, of itself, improve efficiency and allow staff to cope with greater workloads. But it is likely that extra staff will also be required. We do not consider the Courts Modernisation Project and the new computer system will, on their own, increase efficiency enough.

1028 This category also includes providing sufficient resources, and possibly more Family Court judges, so that orders made on without-notice applications can be brought back before a judge within seven days and defended hearings held within the statutory limits.

1029 This priority category of recommendations includes creation of a Family Court chief executive or general manager, as discussed in chapter 9.

1030 It also includes the training and upskilling of judges, Court staff, lawyers, counsel for the child, psychologists and counsellors to cope with systemic issues such as gender bias, Mäori pronunciation and knowledge of child development. The cost of educating contracted professionals would be borne partly by the contractors themselves, although the Department for Courts may be involved in planning the curriculum.

1031 Improving complaint procedures for psychologists also comes into this priority category.

1032 These changes would not make headlines, but they would allow the Court to function in the manner to which it aspires, and without so many complaints about delays and incompetence.

1033 The first category of recommendations covers all issues raised about Court process and management.

1034 Changes we suggest for the Family Court co-ordinator straddle the two categories. If that role were “re-professionalised” and its scope extended to more court intake interviews and an increased public education role, it would make a major difference to the Court operation. Current Family Court co-ordinators would be able to take on these extra responsibilities if their clerical and administrative tasks were reassigned.

1035 It is probably unnecessary to increase co-ordinator numbers until the new services are implemented. It will be necessary to employ another co-ordinator in any Family Court piloting the development of the new services.

1036 The second category of recommendations can be split into two sub-categories for the purposes of implementation. Recommendations on information, including development of pamphlets and websites, will require planning but could probably be implemented nationwide once information packages have been prepared, put out for comment, and revised. Feedback from litigants may be important in testing the effectiveness of this material. The whole exercise could be contracted out, with input sought from specialist advisors.

1037 We propose that new services, including programmes for parents and children, conciliation services for Mäori, and mediator contracting, be planned then piloted in two or three Family Courts, and evaluated. This is likely to take two years, but planning and evaluation will ensure a more effective service.

1038 Some proposals for helping self-represented litigants come under the information and conciliation services umbrella. If self-help centres were planned, one or two of these should also be piloted and evaluated.

RECOMMENDATIONS

Conciliation services – chapter 2

A new, expanded conciliation service should operate out of the Family Court. Legislation will have to be amended so services such as counselling and mediation are available for a wider range of matters than they are now.

The conciliation service should include information sessions for guardianship disputes, and referrals for counselling, mediation and specialist counselling.

The conciliation service should be managed by the Family Court Co-ordinator or conciliation service co-ordinator.

Information sessions, and counselling, mediation, and specialist counselling referrals will be contracted to groups and individuals but managed by the Family Court, which, along with the Department for Courts, will oversee quality control.

Conciliation services should be available to all parties who apply, or by Court direction.

Intake interviews should be available through the conciliation service co-ordinator, who will facilitate the most appropriate referral for the parties concerned.

Anything disclosed during a conciliation service referral is privileged by statute, provided that agreements can be reported to the Court and recorded as consent orders, and that the service provider can recommend a next step.

All Family Court conciliation professionals, and those working in the Court itself, should be trained to recognise situations requiring Court control and management, to avoid inappropriate use of alternative dispute resolution processes.

Parties could be required to access Family Court conciliation services through the conciliation service co-ordinator before they are allowed to get legal aid to start proceedings.

Legal aid should be available to those eligible from the start, so they can get legal advice while accessing Family Court conciliation services.

Family Court co-ordinator – chapter 3

There should be an extended Family Court co-ordinator role, renamed conciliation service co-ordinator.

A conciliation service co-ordinator would require higher qualifications and more skills than a current Family Court co-ordinator.

More conciliation service co-ordinators should be employed.

The salary for the position should be increased.

Tasks should include intake procedures; assistance with case management; co-ordinating and managing counselling, mediation referrals and specialist services; community education and liaison; and, appropriate professional supervision, updating and education.

Current Family Court co-ordinators should keep their positions, with recommended criteria applying to new appointees.

Information – chapter 5

More comprehensive information about family law and the Family Court should be publicly available.

The existing Family Court website should be further developed, and modelled on the Family Court of Australia website.

Videos targeted at separating parents should be produced and made available from various sources, such as courts, public libraries, Plunket and Citizens Advice Bureaux.

There should be a substantial media campaign, once the Law Commission’s Family Court recommendations have been implemented, to inform the public how the Court can help them, and what they can do to help themselves and their families.

Programmes – chapter 6

General information sessions should be designed and made available to all separating couples with children.

The Department for Courts should, in consultation with professionals, organisations, and community groups that support families, develop education programmes for separating parents.

Programme provision should recognise cultural diversity.

Two one- to one-and-a-half-hour information sessions should be held over two weeks.

Information sessions should be mandatory for separating couples with children who are seeking Court assistance with custody and access.

Nobody should have to attend the same information session as their ex-partner.

Children – who are the unintentional casualties of parental separation – should have specially designed materials and programmes that provide information on the process of parental separation and family transition.

We suggest the Department for Courts liaise with child psychologists and childhood educators to develop programmes for children.

Parent and children programmes should be offered in a variety of community settings.

Counselling – chapter 7

Counselling should be available to all couples regardless of sexual orientation.

There should be discretion to offer counselling to people who are parents of the same child, but who have never lived together.

Counselling should, in appropriate circumstances, be made available to one party only.

People other than the separating parents should be able to attend counselling, if, in the view of the Family Court co-ordinator (or on the recommendation of the counsellor and parties) it is thought this might help resolve the dispute.

Counselling services should be developed for specific ethnic groups.

Children should have access to counselling services.

Material should be specially designed for the use of children.

Counsellors should not conduct mediations during counselling; a mediator should conduct mediations.

Automatic provision of six initial counselling sessions should be abolished, making the number of sessions discretionary but capped at six, unless there are exceptional circumstances.

Mediation – chapter 8

Conciliation services offered currently by the Family Court should be expanded.

The Department for Courts should contract trained mediators to offer mediation services to Family Court clients.

Mediating parties should get legal advice before mediation, and before ratifying any agreement reached during mediation.

There must be flexibility about who may attend mediation.

Children or young people with enough maturity to have a point of view and to be able to express it, should have their views sought and taken into account in the mediation process.

The mediator, together with the counsellor, should consider whether children or young people want to be involved in mediation, and whether it is desirable that they should.

Child participation could be encouraged in several ways. Mediation should be flexible enough to ensure the child’s voice is heard whenever possible, on matters affecting the child. But a child who expressly does not want to be involved must not be compelled. Some of the ways children’s views could be represented are:

• children are present during part of the mediation;

• children ask someone they trust to state their wishes at the mediation;

• a counsellor meets with the child and passes on the child’s views and wishes to the mediator, either verbally or through any statement or pictures the child may want to execute;

• the mediator meets with the child to determine the child’s views and relay them to the parents.

We recommend trialling mediation services and monitoring their total cost, so as to compare them with similar disputes being adjudicated, in order to assess quantitative and qualitative aspects of mediation. The study could compare cases in a Family Court running a mediation pilot with similar cases under the current Family Court process.

Only fully trained and accredited mediators should conduct family mediation.

Family mediators should have additional Family Court training in the areas outlined below:

• family systems theories and child development;

• gender awareness;

• domestic violence and power imbalances, and how to deal with unequal bargaining positions;

• how to deal with highly emotional clients;

• the challenges of dealing with unrepresented clients;

• disability awareness;

• knowledge of tikanga Mäori

• knowledge of other cultures and cultural practices;

• knowledge of community-based organisations and support groups offering families help;

• basic knowledge of law applying to Family Court disputes;

• case management and Family Court processes.

Family Court mediators should have frontline mediation experience, or be supervised initially by an experienced family mediator.

Mediators should undertake ongoing education.

The Family Court should contract mediation services from approved mediators.

Judge-led mediation conferences should continue, but be renamed settlement conferences to emphasise their differing role and dynamics.

Settlement conferences should be available but not mandatory in all family law proceedings.

Court management – chapter 9

Expand the Family Court co-ordinator’s role (see chapter 3), and employ more Family Court co-ordinators.

Consider extending Family Court staff salary bands (especially those of team leaders and case progressors), and raising their upper limits to reflect the level of experience, skill, knowledge and responsibility these positions demand.

More consideration should be given to training needs and delivery. On-site training must be factored into staff workloads.

All Family Court staff, and especially case progressors, need training on, for instance, the likely case track for each type of proceeding, relevant legal principles, and reasons for the requirements to file particular documents. Such training would help lawyers and Court staff liaise effectively over the progress of a case through the system.

Each Family Court should maintain staffing sufficient for its workload.

More consideration should be given to covering short-term vacancies resulting from resignations, illnesses, and holidays, so as to continue efficient case management.

Managers should have technical knowledge as well as management expertise. They should be a staff information resource, and be able to strategise with case progressors.

Waiting times for mediation and settlement conferences, short causes, and full defended hearings must be shortened so that inefficiencies are not compounded by delay.

There must be enough judge time to cover the normal workload, so that acting warranted judges cover only temporary shortfalls.

Judge time could be freed up by expanding the registrar role; although doing so would increase registrars’ workloads and responsibilities.

If demands on judicial time are to be reduced by expanding registrars’ powers and alternative dispute resolution, the heavier workload this will place on other Court staff must be recognised.

The establishment of a judicial registrar position should be deferred until changes we recommend have been considered, and the effects of implementing them assessed.

Court management does not stand alone and must be integrated into caseflow management and service co-ordination. A new chief executive role should be established in order to keep an overview of administrative operations and co-ordination.

Overall Family Court governance must improve, taking account of Department for Courts and judicial concerns. A new departmental national office position (chief executive for the Family Court) with appropriate accountable staff would be likely to improve liaison, development and implementation.

If changes occur as a result of our recommendations, an adequate administrative base to implement and monitor changes is essential.

Court process – chapter 10

Caseflow management practice notes should remain a guide to the expected track for most cases.

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.

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.

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.

There should be differentiated case management so that cases are progressed in the most efficient, appropriate manner for each case.

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 the Family 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.

The Court should impose sanctions for failure to comply with Court directions.

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.

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.

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.

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.

Child, Youth and Family Services should have the resources to carry out its responsibilities under the Children, Young Persons, and Their Families Act 1989 (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.

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.

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.

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.

Conciliation services mediation should be an available option where appropriate, for applications under the Child Support Act 1991.

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 to this Act.

The possibility of transferring responsibility for dissolution of marriage to the office of the Registrar of Births Deaths and Marriages should be considered.

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.

Representing children – chapter 11

Counsel for the child should be required to meet with children he or she represents.

Counsel for the child should be offered more comprehensive training in child development, family dynamics and techniques for interviewing children.

Regular refresher courses should keep counsel for the child and judges up-to-date on social research about children and families.

Report writers – chapter 12

It should be made clear that counsel for the child can confer with a report writer and give him or her background information without compromising the report writer’s independence.

Family Courts should review the way they manage critiques of written reports.

Procedures for complaints about Family Court psychologists should be reviewed in consultation with the Psychologists Board, with a view to the Family Court dealing with any complaints about work done for the Court.

The Family Court should use psychologists as facilitators and counsellors, but clearly differentiate these roles from report writing.

The Family Court must have access to social worker reports when required.

Methods of funding these reports must be investigated, including the possibility of the Family Court paying CYFS for the work.

If CYFS is unable to provide the Family Court with social worker assistance, the legislation should be changed so the Court can obtain reports from privately contracted social workers.

Mäori participation in the Family Court – chapter 13

Mäori should be consulted about further changes to conciliation services and Family Court procedure that would better recognise Mäori values and protocols.

Conciliation services should, as far as possible, be contracted to qualified Mäori providers so that Mäori clients can choose these services.

Training needs for Mäori psychologist and report writer providers should be assessed.

Ways to meet these training needs should be investigated, possibly in conjunction with organisations already providing conciliation services, such as Relationship Services, and Mäori domestic violence programme providers.

Standardised introductory procedures complying with tikanga Mäori should be introduced into the Family Court. Judges and other staff should be trained in these procedures.

Legislation should be amended so judges can, at their discretion, permit whänau to attend Family Court settlement conferences and hearings.

Everyone working in the Family Court should be trained in Mäori pronunciation and Mäori cultural imperatives, to enable them to serve Mäori clients better.

Immigrant groups – chapter 14

Pamphlets and websites should be available in several languages.

Conciliation services should be developed for any immigrant group with sufficient local numbers.

Consideration should be given to training counsellors from smaller immigrant groups within existing organisations such as Relationship Services.

Family Court co-ordinators should liaise with immigrant groups in each Court catchment to find ways of giving them access to conciliation services, possibly by having a representative work alongside existing accredited providers.

Disability awareness – chapter 15

Judges, Court staff, and all professionals providing Family Court services should have disability awareness training.

Report writers should, where possible, be expert in the disability of the person they are assessing.

Information must be provided in a variety of forms suitable for people with disabilities.

Specific hearing times should be scheduled, wherever possible, for people with disabilities.

The legal aid ceiling should be raised to allow those with disabilities more time with their lawyers.

Self-represented litigants – chapter 16

The Department for Courts should develop self-help kits for self-represented litigants, with step-by-step instructions, diagrams and flow-charts, documents and forms. These should cover as many aspects of proceedings as possible – a separate kit for each.

Self-help kits should be available on the Family Court website.

Videos to help self-represented litigants should be produced.

Consideration should be given to an 0800 telephone number for information, advice, and referrals to community services and lawyers.

The New Zealand Law Society and the Legal Services Agency should investigate the unbundling of legal services.

The Department for Courts should consider setting up self-help centres at Family Courts.

Gender bias – chapter 17

Efforts should be made to encourage equal numbers of qualified men and women among those employed in, or contracted to, the Family Court.

Specialist services should be provided to address men’s and women’s gender-specific needs. We particularly recommend post-separation parenting programmes for fathers.

Family Court publications should be revised to ensure they represent men’s and women’s experiences.

Education and training programmes should be established to address gender issues affecting both men and women. Such programmes should be incorporated in the training of all those working in the Family Court: Court staff, counsellors, psychologists, lawyers and judges.

Judges should give detailed, factual information in support of their decisions, particularly when exercising discretion in custody and access matters.