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30 THE 1978 ROYAL COMMISSION on the Courts recognised the conflict between the functions of a court and those of a social agency. It nevertheless considered that the Family Court should undertake conciliation, and aim, where possible, to resolve disputes before embarking on an adversarial process.[6]
31 When the Family Court was set up, it dealt with proceedings under the Family Proceedings Act 1980, the Guardianship Act 1968 and the Matrimonial Property Act 1976 (that is, mainly disputes between separating couples about marriage dissolution, spousal and child maintenance, guardianship, custody and access). Although its jurisdiction included custody and access disputes between unmarried parents, at that time most disputing parents were married.
32 The legislation emphasised reconciliation as a primary objective. Counselling sessions could be accessed through the Court, and were expected to result in spouses either reconciling or resolving their dispute. Once proceedings were filed, judges would hold a mediation conference in an effort to reach a settlement before a defended hearing and an imposed decision.
33 A 1993 committee headed by Judge Boshier advocated establishing a separate family conciliation service.[7] It envisaged a key role for the counselling co-ordinator, with the Court contracting services from appropriately qualified people in the community.
34 Since then, there has been continuing debate on the extent to which conciliation services should be tied into the Court system. The same debate has informed submissions and consultation for this report.
35 The role of the Family Court is said to be adjudication. The Court is an arena of contest where each side is entitled to put its case and have the matter resolved by the ruling of a judge. The process is governed by rules ensuring even-handedness between parties. But this may lead unavoidably to competition between two “stories”, a sense of victory and vindication for the party whose aims are endorsed by the judge, and a sense of defeat and loss for the other party.
36 This approach contrasts with conciliation services, which focus on healing rather than determination. Conciliation encourages each party to understand the other’s point of view, and to co-operate in finding a resolution that accommodates both.
37 Although conciliation is likely to have more “user friendly” outcomes than adjudication, the fact is this is not always achievable. Some situations are so complicated by pain, violence, mental health problems, and plain bloody-mindedness that conciliation cannot, within a reasonable timeframe, resolve matters in a manner acceptable to both parties.
38 Some cases, such as when a child is in danger of being taken out of the country, or there has been a violent assault, require an urgent ruling from a judge before conciliation can be attempted. Sometimes, parties have tried conciliation but have been unable to agree, and the Court must decide for them.
39 The need for an urgent order does not rule out conciliation at a later stage. Where, for example, Family Court proceedings have been initiated and an order must be made to disclose property information, conciliation may still be useful once that information is available. The emotional seesawing and catch-up that often accompany relationship breakdown may make conciliation an option after a settling down period, even though it was impossible while emotions were running high.
40 We see the Family Court as a centre for resolving only those disputes over which it has statutory jurisdiction. The Court’s conciliation processes should not be available for family disputes falling outside its jurisdiction; these are the province of other social and health agencies.
41 We believe conciliation must be clearly delineated from processes leading to adjudication. One process must not bleed into the other. Any concessions parties might have made during privileged negotiations must not be disclosed to the adjudicator during the contested court process.
42 The 1978 Royal Commission on the Courts[8] and the 1993 Boshier report,[9] as well as submissions to the Commission, agree that the Family Court should provide conciliation services. Debate focuses on how these services should be delivered.
43 Conciliation aims to resolve disputes in a “user friendly” way. It allows parties to generate their own solutions rather than having them imposed, to provide healing as well as finality, and for less cost than a defended court hearing.
The current system
44 The Family Court contracts out conciliation services to organisations and individual private practitioners. The reference in the legislation is to counselling, and to promoting reconciliation and conciliation.[10]
45 The Family Courts Act 1980 provides, under the State Sector Act 1988, for the appointment of an officer of the Department for Courts. This position is currently that of Family Court co-ordinator, whose main role is to oversee provision of Family Court counselling services, co-ordinate provision of section 29A psychologist’s reports, and the appointment of counsel for the child.
46 The only alternative dispute resolution process is the mediation conference chaired by a Family Court judge, under section 13 of the Family Proceedings Act 1980. The current situation is that Family Court conciliation services are shared between the mediation conference, the Family Court co-ordinator’s administrative role and contract counselling services provided by people in the community.
The stand-alone model
47 Another option is for a completely separate body to provide all conciliation services for potential parties to Family Court litigation. It would be administratively separate from the Family Court, and could be modelled on the mediation service set up under the Employment Relations Act 2000. One submission outlined a view of such a body:
The institution could provide the intake and education services suggested in the paper, psychological expertise, counselling and mediation. Even a bit of social work as well. It would comprise a variety of the professionals that currently assist the Court but it would do so in a co-ordinated, professional, properly trained way. The institution would be able to respond to crises more quickly and would be of major assistance in the identification and management of high-conflict parties.[11]
48 This service would engage people to ascertain the view of children as an adjunct to counselling and mediation processes. Parties unready for mediation could be referred for preparatory counselling.
49 The Commission has several concerns about this model. Counselling services provided currently through the Family Court and by judges at mediation conferences are available in every centre where a Family Court sits. We doubt a stand-alone entity with permanent employees would be able to provide such good quality national coverage with the full range of professional services. The Employment Mediation Service operates out of only seven locations around the country[12] but helps complainants by holding mediations in other centres.
50 Our other concern relates to the necessary range of professional services. The background and expertise of mediators able to deal with disputes involving children may differ from those able to mediate relationship property disputes. High-conflict litigants need expert intervention. We believe that contract professionals, such as counsellors and psychologists, benefit the service by bringing in a range of community-based expertise that goes beyond Family Court work. This also helps prevent burnout. Sourcing community expertise means drawing on a range of training and cultural backgrounds, and avoids capture by a small group of exclusively Family Court personnel. Contracting allows services to be made available in smaller centres, while administration and service quality control remain in the larger centres where the Family Court is based.
51 Contracting allows the Family Court to offer more culturally appropriate conciliation services to groups within the community, including Mäori, Pacific Islands peoples, and immigrant groups, who may be concentrated in specific localities.
52 We believe that necessary professional expertise is better accessed by contract than by attempting to employ fulltime mediators. We foresee a grave risk that the qualifications and training of fulltime mediators would be of a lower standard than that of professionals contracted from the wider community.
The Boshier report model
53 Although the Boshier report proposed a distinctly separate family conciliation service, it still envisaged a key role for counselling co-ordinators (now renamed Family Court co-ordinators). They would be responsible for public education, and early case classification and referral. It envisaged community-based mediators engaged on contract rather than as permanent employees. Brief specialist reports from contracted psychologists and social workers would be provided to inform parties to custody mediations about the children’s needs and wishes. The Boshier report envisaged counselling being applicable to fewer cases than at present, but counsellors were to continue to be contracted to the service rather than employed.
54 The report saw it as the counselling co-ordinator’s responsibility to obtain section 29 social work and section 29A psychologist reports, and to administer the appointment of counsel for the child.
55 So although the Boshier report suggested a separate family conciliation service, what it actually proposed was administration by the counselling co-ordinator of a range of services provided by community contractors, not employees.
56 The recommendations in the Boshier report closely resemble our preferred model for providing Family Court conciliation services.
The Law Commission proposal
57 We do not support complete separation of the conciliation service and the Family Court. In our view, making similar social services available through a separate agency would result in administrative duplication and risk more delay. We are also concerned that adequate resources and expertise would be unavailable in smaller centres.[13]
58 We envisage several clearly delineated services, all accessed through the Family Court. These might be provided by community groups or individuals operating separately from the Family Court. Quality control, referral choice, and availability would be administered by the Family Court, with support from the Department for Courts.
59 This is essentially how counselling referrals are currently managed under sections 9 and 10 of the Family Proceedings Act 1980. We believe our recommended information sessions, mediation services, and high-conflict case interventions can be similarly managed. The Family Court co-ordinator plays a key role in maintaining these referrals; the co-ordinator will have overall responsibility for establishing and maintaining service links.
60 No ongoing record will be kept if parties referred to counselling services or information sessions through the Family Court resolve their disputes and have no further need of the Court. If, however, earlier services fail to resolve matters, it will be useful to have a record of what interventions were accessed, what the parties valued or found effective, and what they considered a waste of time. It can then be decided what process is needed later and whether parties are now ready to make use of what was inappropriate before.
61 Where the Court directs provision of a service, as under sections 10 and 19 of Family Proceedings Act 1980, the Family Court co-ordinator will arrange it.
62 Where service use is optional (such as current counselling under section 9 of the Family Proceedings Act 1980), parties will choose referrals, in consultation with the Family Court co-ordinator. This may involve discussion between the co-ordinator, the client, and the client’s lawyer.
63 The Family Court would not, however, be the only channel for accessing these services. If agencies contracted to the Family Court provide similar services direct to the community, people would be free to contact them as they wish, just as now, for instance, they can access Relationship Services counselling through the Family Court or by direct contact.
Recommendations
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.
64 Preliminary Paper 47 floated the idea of an intake procedure to ensure presenting parties are referred to the most appropriate service.
65 This suggestion has prompted several concerns. One is the perceived degree of compulsion in such a process: would a party lose the right to choose the service he or she wanted; would it give the Family Court co-ordinator too much power?
66 Lawyers are concerned that people referred to conciliation processes without legal advice might compromise their positions before they understand their legal rights, and thus be disempowered.
67 Counsellors, on the other hand, are concerned that parties who go to lawyers first will be encouraged to take up a position and adopt oppositional behaviour.
68 Under the present system, parties filing applications for custody are directed to counselling under section 10 of the Family Proceedings Act 1980 before the Court progresses their application (unless there are genuine reasons to by-pass counselling, such as urgency, or because parties have already had counselling).
69 The legislation may still impose preparatory steps on parties to Family Court proceedings; see, for example, the later discussion on information sessions.
70 However, clients will, in general, be able to choose a process, or agree to use one proposed by the other party or the Family Court co-ordinator. Once an application is filed, the choice of process will be subject to the direction of the Court.
71 An intake interview is a useful step: an opportunity to discuss and explore options. Given the service range – information sessions, therapeutic counselling, conciliation counselling, and mediation – parties might appreciate help in understanding what is available.
72 The intake interview is not meant to be a barrier: it would not be lengthy or diagnostic, but is intended to ensure parties have access to the service they need.
73 The interview might take place later if one avenue has become a dead end, or new issues have surfaced. Specialist advice might be needed where issues demand sophisticated distinction between available referrals.
Recommendations
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.
74 Anything disclosed in therapeutic and conciliation counselling, or in mediation, must remain privileged and be withheld from the Court by both parties should matters remain unresolved and go on to adjudication. Settlement negotiations are unlikely to yield concessions, compromises or bargains if these can later be presented as evidence to a judge. This prohibition on disclosure applies not only to the parties, but to those facilitating counselling, mediation or negotiations.
75 There is, however, potential for abuse if someone is party to privileged or “secret” processes prior to adjudication. As one submission put it:
As it is now, every stage is hidden from the stage before. This gives the biggest virtual bike shed in the country and plenty of bullying goes on behind it. Hidden processes tend to favour the manipulative and insincere and those who think the rules are for everyone but them.[14]
76 We are concerned that while the current system allows counsellors to assess parties during interviews and get a clear picture of the best way to resolve disputes, counsellors have no opportunity to express their views.
77 A counsellor submits either a record of what parties agreed, including any partial agreement, or a statement that they were unable to agree.
78 We believe it is inappropriate and undesirable for counsellors or others to comment later on what is said during counselling or on why a dispute has not been resolved. However, we consider that, where matters are not fully resolved, a counsellor’s or mediator’s report could helpfully suggest a next step.
79 Counselling service providers we have consulted tell of their concern that matters sometimes drift, when they consider there is an urgent need for judicial intervention or management.
80 They understand the need for privilege, but consider a “next step” recommendation would not be contrary to best practice.
81 This recommendation would inform the parties and the Court; it would not be binding. Parties could choose how to proceed, subject to the direction of the Court where parties could not agree or where they chose a Court-funded service (such as the appointment of counsel for the child, or provision of a section 29A psychologist’s report).
Recommendation
Anything disclosed during a conciliation service referral is privileged by statute, provided that agreements can be reported to the Family Court and recorded as consent orders, and that the service provider can recommend a next step.
82 Many submissions objected to identification of high-conflict litigants or difficult cases by psychological diagnosis. These objections may be based on a misunderstanding of our position: although our discussion paper referred to diagnostic psychological tests, we did not intend they be used this way in the Family Court.
83 We do believe, however, that some circumstances earmark cases for judge-managed and controlled interventions – those that will not benefit from, or may even be exacerbated by, normal conciliation. Such cases must be identified, and managed accordingly. Some identify themselves by the nature of the dispute, (for instance, cases involving protection orders under the Domestic Violence Act 1995, or where there are allegations of sexual abuse). In others, the behaviour of parties during the case will quickly reveal it as one needing close management – extreme courtroom behaviour; more than one change of counsel; sacking of counsel; refusal to comply with Court directions; failure to attend hearings; and, rigidity. Any of these issues alone, on one occasion, is not significant; where they occur more than once, or several are in evidence, such a case clearly needs special attention.
84 We cannot rely on any particular procedure at any particular stage to identify cases needing close control and management; rather, everyone working in Family Court conciliation and in the Court itself must be alert for them. The nature of some cases, such as sexual abuse allegations, will mark them out. Others may be identified during counselling or mediation, and Court intervention recommended as a next step.[15] In still other cases, a party or the party’s lawyer heading towards a hearing may apply for close monitoring. Judges might identify further cases and direct them appropriately.
85 It is important that all Family Court professionals, including judges, acknowledge there are situations that will not benefit from conciliation or time out. Here, firm management, backed by court orders and post-order assistance, will avoid expense and delay, which are damaging to parties and their children.
86 If the Court were to have psychologists’ reports on adults, especially those party to guardianship disputes, as well as on children, these could include an assessment of the best means of progressing and resolving disputes.[16]
Recommendation
All Family Court conciliation professionals, and those working in the Family Court itself, should be trained to recognise situations requiring Court control and management, to avoid inappropriate use of alternative dispute resolution processes.
87 To be eligible for legal aid in some jurisdictions, parties must use conferencing/mediation services without legal help before accessing the Court. We do not support this practice; there should be no difference between the services offered to legal aid clients and to those paying their own fees.
88 All parties should be entitled to basic legal advice on their situation, and clients eligible for legal aid should be able to access this advice before being compelled to use conciliation. Others may want legal advice part way through conciliation; that is, after initial counselling but before mediation. In any case, those entitled to legal aid should able to get advice at any stage during conciliation and mediation; doing so might well avoid court proceedings altogether.
89 Accessing Family Court conciliation before issuing proceedings could become a prerequisite for a grant of legal aid so long as legal advice is available to assist and inform the conciliation process.
Recommendations
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.
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URL: http://www.nzlii.org/nz/other/nzlc/report/R82/R82-2_.html