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1. Introduction

1 THIS GOVERNMENT REFERENCE was prompted by wide-spread criticism of the Family Court of New Zealand. Allegations include that: the system is biased against men; without notice applications are granted too readily; where orders are made without notice it takes too long for the other party to be heard; matters generally take too long to resolve; children suffer because of these delays; and, not all Family Court professionals are properly trained and skilled.

2 These criticisms are not surprising, because the Family Court is a unique jurisdiction. It deals with families in crisis, and emotions run high. Its judges are faced with extremely difficult decisions, which affect litigants in a profoundly personal way. The welfare of children is often at stake. Personal rights compete with protection and security. Fairness competes with the welfare of children. Such principles cannot always be balanced or compromised – one must prevail over the other. People are hurt by these decisions, however “right” they may be.

3 This report recommends new conciliation processes and court procedures that we believe would help resolve family disputes. Our strongest recommendation, however, is that the present system be resourced to perform at its most efficient, without the delays caused by lack of court time, shortage of report writers and lack of assistance from the Department of Child, Youth and Family Services.

4 The Family Court should be the place where family legal disputes are resolved as quickly possible, in a way that meets the needs of families – especially children.

5 To achieve this, the Family Court must:

• help families reach agreements;

• give families information and professional advice to inform their decision making;

• provide opportunity for children’s views to be heard;

• give children representation;

• deal in the same place with matters relating to the same family;

• recognise differing cultural values;

• provide information and professional expertise to inform court decisions, where these are required;

• provide help from empathetic, well-qualified, and properly trained staff and professionals;

• liaise effectively with individuals and community groups that help families;

• keep pace with social change;

• provide a fair and just process;

• resolve disputes as speedily as possible;

• make urgent interim orders where necessary.

6 These have been the aims of the Family Court since it was set up in 1980. Over the last 22 years its jurisdiction has burgeoned, putting increasing pressure on resources. There has also been profound social change.

7 Our Family Court model acknowledges these changes, and takes a more focused and targeted response to dispute resolution. We believe it will achieve more enduring outcomes that are better for children.

8 The Family Court is, however, only a venue for dispute resolution. Overall, outcomes for New Zealand families depend on many other factors, such as health, poverty, education, and employment, all of which impact on the families who may seek assistance from the Family Court.

TERMS OF REFERENCE

9 The Government terms of reference were that the Law Commission consider what changes, if any, are necessary and desirable in Family Court administration, management, and procedure to resolve disputes early. It was asked to consider:

• the role of information-giving, counselling, legal advice, mediation, assessment, case management, and adjudication;

• who might best fulfil each of 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 be best represented, and at what stage in the process;

• culturally appropriate personnel and processes.

10 The Commission was also asked to look at resource allocation in the family jurisdiction and to consult widely.

11 The terms of reference imply that the Family Court is a useful institution; we were asked how its processes might be improved.

LAW COMMISSION PROCESS

12 Our preliminary paper, Family Court Dispute Resolution, published in January 2002, described the Family Court’s background and history, its social context, how it operates and who is involved.[1] The paper also set out what we saw as the main problems in service delivery.

13 Since this paper was published, we have received 126 submissions from individual Family Court clients, and from representatives of most professionals who work there. We have also consulted further with community client groups and professionals who work in the Court.

RECOMMENDATIONS

14 The following is a summary of our recommendations:

1 Avoiding delay through improved systems and resourcing, and better targeting of assistance.

2 Addressing competence and gender bias issues by upskilling Family Court staff and contracted professionals.

3 Improving dispute resolution procedures as an alternative to judge-imposed decisions, by contracting Family Court mediators.

4 Providing more dispute resolution processes designed by Mäori, and delivered to Mäori by Mäori.

5 Extending the Family Court co-ordinator role to oversee improved and more extensive conciliation services.

6 Making available in the community more information about the Family Court and its processes.

7 Ascertaining and incorporating children’s views in conciliation processes.

8 Improving complaint procedures related to contracted Family Court professionals, including psychologists and counsel for the child.

9 Appointing a chief executive or general manager of the Family Court to the Department for Courts’ national office.

10 Making available appropriate conciliation services that include information, counselling, and mediation, in respect of all proceedings that may be brought in the Family Court.

ORGANISATION OF THIS REPORT

15 Chapters are ordered to reflect the steps a matter takes as it progresses through conciliation services and the Court process.

16 Discussion of Mäori participation, immigrant groups, people with disabilities, self-represented litigants, and gender bias comes later in the report, not because we think these issues unimportant but because they cannot be fully discussed, or the relevant recommendations understood, without referring to processes described in preceding chapters.

BRIEF COMPARISON WITH SIMILAR JURISDICTIONS

17 We should not forget the key factors that make the Family Court of New Zealand a world leader in its field. Our recommendations are intended to strengthen this foundation. While criticisms of its operation are valid and there will always be ways to improve the court and its processes, the Family Court is a valuable institution providing a useful service to families in distress.

18 The Family Court of New Zealand is a specialist court with specialist judges. It has comprehensive jurisdiction over family matters. The legislation provides for the appointment of legal representatives for children involved in most cases that go to defended hearings. Contrast this with the prevailing situation in several comparable, democratic western nations.

19 Many countries do not have a dedicated Family Court. All family-related matters are dealt with in civil courts with non-specialist judges, alongside civil and commercial matters. In the United Kingdom, the County Court or the High Court deal with family matters, depending on the nature of the proceeding. In the United States, 12 of 51 States have no Family Court at all.[2]

20 Neither do dedicated Family Courts always have jurisdiction over all family matters. In New Zealand, the jurisdiction is comprehensive. Separating husbands and wives do not have to attend one court to deal with issues relating to the children and another to settle their property dispute. Where there are care and protection issues under the Children, Young Persons, and Their Families Act 1989, another court does not deal with issues relating to the same child under the Guardianship Act 1968. A child of a de facto relationship has custody and access orders made by judges of similar status to those who determine custody and access for a child of a married relationship. Where a widow disputes her husband’s estate, her relationship property issues are dealt with alongside competing claims to the estate by her husband’s children.

21 Contrast this with the Australian situation, where the Family Court is a federal court with jurisdiction only over matters of marriage and divorce, and issues arising for the children of divorce. State courts generally deal with de facto relationships, issues for children with non-married parents, adoption, and care and protection issues. Only Western Australia has set up a comprehensive Family Court combining Federal and State jurisdictions.

22 In most proceedings over which the Family Court of New Zealand has jurisdiction, it is possible to appoint a lawyer to represent the child and give that child a voice in proceedings. This complies with the United Nations Convention on the Rights of the Child, to which New Zealand is a signatory.

23 In many other jurisdictions, appointing a representative for the child is at the Court’s discretion, and the child may not necessarily be represented by a lawyer. The Australian Family Court may order the child be separately represented in any proceeding where its welfare or interests are a paramount or relevant consideration.[3]

24 In the United Kingdom, a Family Court welfare officer,[4] combining the roles of child representative and report writer, represents children in the equivalent of our custody and access cases. These officers are not necessarily qualified in social work and never have legal qualifications.

25 We consider that the representation of, and provision of information about, children in the Family Court of New Zealand is carried out with a greater degree of professionalism.

PROGRESS OF A TYPICAL DISPUTE

26 To illustrate how our recommendations might work in practice, we describe some typical processes for separated parents disputing over arrangements for their children.[5]

27 Nicole and Tom are thinking of separating. Nicole contacts her lawyer. Tom talks to some mates, gets some pamphlets, and has a look at the Family Court website. He then contacts the Family Court co-ordinator. Tom and Nicole are referred to a parents’ information session, and their two children invited to a children’s programme. This helps Nicole and Tom talk with the children about the separation.

Nicole and Tom try to discuss all the issues, but don’t seem to be getting anywhere. Nicole suggests contacting the Family Court co-ordinator again, and they are referred to counselling. They agree on arrangements for the children and withdraw from the system.

OR

After two counselling sessions, Nicole is convinced Tom is not facing up to the situation, and goes back to her lawyer. Tom is concerned that Nicole wants to take the children from Wellington to Christchurch where her parents live, so he applies for a court order to keep the children in Wellington. Nicole is given three days to respond to his application. The Court makes the order and refers the couple to mediation.

The mediation is highly successful. Nicole and Tom each feel they have been heard, and each understands the other’s point of view a little better. They draw up an agreement. It covers arrangements for the children, and property issues. Nicole and Tom each see lawyers to have the property agreement approved. Everything is settled.

OR

There were various sticking points in the mediation. Nicole is now determined to go back to Christchurch. She sees her lawyer. She makes an application for custody and to be able to take the children to Christchurch. The Court appoints counsel for the child.

Counsel meets the children, then discusses their views and needs with their parents. The counsel is able to broker an arrangement. Nicole agrees to stay in Wellington once she realises how important this is for the children.

OR

Counsel for the child cannot break the deadlock and recommends a psychologist’s report. This states the importance to the children of maintaining weekly contact with their father. Nicole’s lawyer advises her that the Court is unlikely to give her permission to take the children to Christchurch. She reluctantly agrees to stay in Wellington and a consent order is drawn up.

OR

Nicole agrees to stay in Wellington, but Tom is unhappy that the children will be with him only every second weekend and half the holidays. Further negotiations helped by counsel for the child do not advance the matter. It is set down for a settlement conference with the judge. Nicole and Tom each tell the judge what they want and there is discussion about how far apart they really are. Compromises are made and the judge makes orders by consent.

OR

Nicole remains staunch. The matter is set down for a hearing. The judge hears all the evidence and decides the children will live five days a fortnight with Nicole and nine with Tom. Nicole and Tom comply with the court orders and the children are relieved to have the problem resolved.

OR

Nicole does not like the court order. She accepts her lawyer’s advice not to appeal but keeps sabotaging arrangements for the return of the children to Tom. Tom has another talk to the Family Court co-ordinator, and specialist counselling is arranged. Nicole comes to accept the situation and complies with the orders.

28 The process would be modified according to the type of proceeding. In relationship property matters, family protection cases, and the like, the pattern would still be to provide information and opportunities for legal advice, followed by counselling and mediation options, before pursuing the court track. In such cases, an application may need to be filed to elicit disclosure of documents or prevent sale of an asset, but the matter can then revert to the conciliation services.

29 The intention is for the process to be flexible enough to respond to specific needs while at the same time always seeking to have the parties themselves resolve their dispute.