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141 PEOPLE USUALLY COME TO THE FAMILY COURT via four routes:
• State intervention (Child, Youth and Family Services (CYFS) investigating a child’s need for care and protection);
• requesting counselling under section 9 of the Family Proceedings Act 1980;
• filing an application requiring another party to engage in legal proceedings;
• obtaining a without notice protection or custody order that immediately changes the status quo and generates further proceedings.
142 Many people approaching the Family Court are confused, and need guidance and information on their options; some have already decided on a course of action but are unclear how to pursue it; others are looking for more information on specific issues. The common factor is litigants’ desperation.
143 The more people know about a system, the better equipped they are to make informed choices and wise use of scarce resources. Family Court experiences are largely determined by what people understand of the options open to them and of court processes, how well they communicate with their former partner, the influences and attitudes of those operating the Court system, and its cost and accessibility.[28]
144 Needs differ, hence information and services should range from the general to the specific, with enough flexibility to allow people to get advice tailored to their situation.
145 New Zealanders are fortunate that, as Family Court clients, they can access State-funded counselling to help them explore their feelings, consider issues and weigh options. Counselling is, in fact, the front line of personally tailored information. This report suggests enhancing the system by providing improved general and individually tailored information, to be delivered by:
• an intake process, ensuring parties are referred to appropriate services;[29]
• more extensive published information;
• parenting and children’s programmes.
146 The chapter discusses provision of general information about Family Court services and processes, emphasising what would be useful for couples with children who are contemplating separation, and information that would help children thrive in this transitional environment.
147 We give particular attention to separation, custody and access disputes because public submissions indicate this area of Family Court work is causing most concern. Only two submissions dealt specifically with the Protection of Personal and Property Rights Act 1988 (PPPR Act), and a couple more with matrimonial property and child support issues, usually in conjunction with complaints about the outcome of custody and access cases.
148 The Family Court provides basic information about the services and processes families are likely to encounter, in a series of Department for Courts pamphlets. These deal with counselling, mediation conferences, dissolution of marriage (divorce), domestic violence, paternity, guardianship, custody and access, and matrimonial property.
149 Pamphlets are available from courts, Citizens Advice Bureaux (CABs), and other community agencies, as well as online at the Department for Courts website (www.courts.govt.nz/family/index.html).
150 This website has been significantly expanded over the past two years, and now contains the same information as the printed pamphlets. It also has a general information section, with papers, reports, feature articles and a “current awareness” column.
151 Practice notes are available online so people can find out what is expected of them in court interactions. The website makes available several forms that can be filled out onscreen and printed, or downloaded, printed, and filled out by hand. Not all forms are available this way, however. Those on the Family Court website cover disputes about dissolution of marriage, international child abduction, PPPR Act matters (including enduring powers of attorney) and relationship property.
152 Other kinds of application forms, for example, custody and access, and protection orders, are unavailable online, and the Department for Courts has no immediate plans to make them available in this way.
153 The Family Court provides little information on, for example, the effect of parental separation on children, particularly where there is intense conflict. Nor is the information enough to help those considering representing themselves in court.
154 Other than Family Court pamphlets, its website and counselling services, sources of information for prospective Family Court users are:
• CABs;
• community law centres;
• lawyers;
• domestic violence programme providers and Women’s Refuge;[30]
• other interested community groups.
155 Lack of comprehensive information about the Family Court leaves the field clear for interest groups to promulgate their own ideas of how it operates and what the current state of the law is. Some of these views are less than objective. We were told of groups removing Family Court pamphlets deliberately and replacing them with their own material.
156 While we agree that consumer advocacy groups have an important part to play in providing information, we believe it should supplement, not supplant, information from official sources.
Public access to information about the law
157 District law society libraries, law school libraries, and lawyers’ offices hold copies of New Zealand statutes (often in both printed and electronic forms), as well as official law reports and specialist texts, but people have no access to these as of right.
158 Government is, however, taking steps to improve public access: on 9 September 2002 it launched a temporary website <http://www.legislation.govt.nz> containing statutes, regulations and bills. It will run until the Parliamentary Counsel Office website goes live in 2003, with similar free public access. This welcome development enhances significantly public access to the law.
159 Most libraries do not hold law reports or a comprehensive range of legal texts, making it difficult for people to discover their legal rights and obligations, especially if they want to represent themselves in court. While we appreciate it can be expensive for libraries to subscribe to all official reports,[31] there ought to be some way for the public to access these, as well as judgments, more easily.
160 Some might consider this lack of access to information about the laws that govern us fundamentally undemocratic. It certainly fails to encourage informed participation in the judicial system, and may contribute to a perception that the legal system is incomprehensible and unfair.
161 We believe it would be useful if every public library and CAB held several core family law texts. These might include the Butterworths Family Law Service, which comes loose-leaf or in an edited two-volume textbook format, or Trapski’s Family Law (although this is in seven loose-leaf volumes). While there are several other New Zealand family law texts, these two are regarded as seminal, and give a comprehensive overview of family law and practice.
162 People increasingly use the Internet to access information on various subjects. The 2001 census revealed that of a total 1 289 127 households, 482 361 had access to the Internet at home.[32] Statistics New Zealand estimates that, on current trends, more than 50 per cent of households will have Internet access by 2002.
163 In 1998, more than 80 per cent of primary and 90 per cent of secondary schools reported access to the Internet. Many businesses also have access.
164 These trends highlight the significance of the Internet as a conduit for information. We would like to see the Department for Courts provide more comprehensive information about Family Court services online. We discuss below the Australian Family Court website – a good example of how to make information available in this way.
Australia
165 The Family Court of Australia website has far more detailed information than our own on court processes and services, on other helpful community agencies, and on relevant law. It has a wealth of information covering family law and how to find out what the law is in a given area: the Court, its services and contact details; a guide for litigants planning to manage their own case; advice on making an application to the Court, and do-it-yourself kits; and information for children whose parents are separating.
Managing your own case, and do-it-yourself kits
166 The website emphasises the three limbs of Family Court process – prevention, resolution, and determination – and the fact that not all cases will go, or need to go, to trial, thus encouraging co-operation and self-determination. The case management section explains what happens once proceedings are on track for a court hearing before a judge.
Client information and services
167 The section of the website dealing with client information and services has comprehensive and easy to understand information about:
• children and consent orders;
• child abuse;
• child support;
• child abduction;
• divorce, separation, marriage and families;
• legal advice and money matters;
• mediation services;
• enforcement of orders, and fees and costs.
168 Following is a brief example of what litigants can find out under these headings: children and mediation; how children react to separation; how children can maintain strong relationships with both parents after parents separate. This last topic includes pages headed Every Family is Different; No Longer Partners – But Continuing as Parents; Grandparents; Making Your Arrangements Work; Parental Responsibility and Parenting Orders; and Parenting Plans. These focus as much on the emotional and practical aspects of separation as the legal.
169 Case management information in Managing Your Case sets out procedural steps and explains what legal terms mean. It explains what happens at each stage; what, for example, a case conference is, who will attend and what its outcome might be; what happens at trial; and what must be done before a trial (such as a pre-trial conference, family reports and the filing of affidavits).
Finding out about family law
170 The information section tells litigants how to research the law, and locate primary sources (legislation, judgments, Hansard, treaties and conventions) and secondary sources (text books, loose-leaf publications and journals).
171 It would be useful if information like this were on a New Zealand website and in printed form for distribution to libraries, CABs, and community law centres, for clients who wish either to represent themselves or better understand the law applying to their dispute.
Children and young people
172 The Australian website has material designed for children and young people. It is easy to understand, and laid out in a “reader friendly” format. It tells children about mediation, and has a general questions and answers section, as well as an article explaining what happens when parents split up, and the importance of children having their say about what is happening to them.
173 The material is aimed at various age and ability levels. The website contains links to other sites of interest to children and teenagers.
174 Such information would be valuable to young New Zealanders. It could be posted on a website as well as printed, and incorporate games and exercises, particularly for younger children.
Canada
175 Manitoba, and Ontario especially, make extensive use of the Internet to inform people about family law, access to services and, where necessary, where to get legal assistance.
176 Ontario provides excellent materials for parents and children, describing relevant law and legal processes in understandable terms. The document What You Should Know About Family Law in Ontario[33] deals comprehensively with several family law issues relating to children, relationship formation and dissolution, relationship property, child and spousal financial support, and domestic violence. It describes key Family Court players and their role in the Court process.
177 A Guide to Procedures in the Ontario Court of Justice takes litigants step-by-step through the Court process.[34] It covers mediation, how to start proceedings, how to respond once proceedings have been issued, first court dates and case conferences and motions. One section contains general information sheets about serving and filing documents, and going to court.
178 Where Do I Stand: A Child’s Legal Guide to Separation and Divorce explains clearly and simply what happens when parents separate, and what the practical effects are on children.[35]
179 The children’s materials also contain a dictionary of terms, with clear explanations and a list of suitable reading material. There is space at the end where children are encouraged to make notes or a diary of how they feel about the changes in their lives.
180 The Department for Courts should make available more information about the Family Court and its processes. The Department’s revised information pamphlets and website are a step in the right direction, but we believe that people using the Family Court need more comprehensive information.
181 Those seeking Family Court help should be able get information on:
• the various proceedings over which the Court has jurisdiction;
• the stages of these proceedings;
• what documents need to be filed, and when;
• the practicalities of separation and divorce;
• the psychological, emotional, and social aspects of separation and who to contact for help;
• how children might react to their parents separating, what parents can do to help and contact details for helping services;
• matters involving children, to help them understand guardianship, custody and access, parental separation, child support, and children’s rights to have their views considered in the final decision. (The Ontario materials, the Family Court of Australia website, and materials piloted in the United Kingdom are a good starting point for a New Zealand guide for children whose parents are separating);
• the social and financial assistance available to families; this would be provided by government agencies such as CYFS, Work and Income, and the Department of Inland Revenue, but should be available at all Family Courts, CABs, community law centres, legal offices, and from social workers, counsellors and mediators.
182 We recommend that the written materials and videos discussed below are made publicly available via a range of sources, such as courts, public libraries, CABs, community law centres, and community groups, and through CYFS offices around the country.
Recommendation
More comprehensive information about family law and the Family Court should be publicly available.
New ways of delivering information
Online
183 Information for Family Court users could be delivered in ways that go beyond the traditional paper-based format. The existing Family Court website could be expanded. We commend the Family Court of Australia website as a resource for Australians trying to resolve family disputes, and would like to see similar information available on the New Zealand Family Court website.
Recommendation
The existing Family Court website should be further developed, and modelled on the Family Court of Australia website.
Videos
184 Videos are a good way of reaching a wide audience. One Family Court co-ordinator in Hastings uses the video You’re Still Mum and Dad as a basis for discussions about post-separation parenting. Anecdotal reports are that this video, although dated, is well received by parents.
185 A Wellington-based company, Educational Resources, has produced two videos about the Family Court process. One, in the company’s Understanding the Law series, is about a separated family and the difficulties parents and children have adapting to their new circumstances. Another, entitled Custody and Access, is narrated by television presenter Joanna Paul. It takes snippets from the previous video and intersperses it with commentaries from professionals and those who have experienced separation and negotiated parenting arrangements with ex-spouses. The video is well presented, comprehensive, balanced and easy to understand.
186 We understand that Educational Resources is currently producing a video featuring children talking about how they feel about their parents’ separation. If the Custody and Access video is any guide, this will be a useful resource, and we hope such material would be shown to separating parents.
187 We recommend this type of video be available to everyone using the Family Court. It demystifies the Court process, encourages people to take control of their situation, and, wherever possible, to co-operate for the benefit of their children.
Recommendation
Videos targeted at separating parents should be produced and made available from various sources, such as courts, public libraries, Plunket and CABs.
Public information campaign
188 We think a Family Court media campaign would give the public a better understanding of what the Court does.
189 The Mental Health Commission recently commissioned a series of television advertisements featuring well-known New Zealanders who suffer from mental illness. These dispel some of the myths, stigma, and discrimination associated with mental illness. The campaign was accompanied by radio discussions aimed at Mäori and Pacific peoples, and a magazine campaign aimed at young Mäori (a section of the population disproportionately represented in mental illness statistics). The campaign was followed up by an hour-long television documentary in which the same celebrities, and their families, told their stories.
190 By all accounts, the campaign was a success: more than 80 per cent of people over the age of 15 remember the advertisements, and 62 per cent report having discussed them with others.
191 We suggest that, if our Family Court recommendations are implemented, there be a significant public information initiative to ensure all New Zealanders understand what the Family Court does. Ignorance is fertile ground for myths; these are hard to counteract and can discourage people from getting help at a time they need it most.
Recommenation
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.
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