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• Overview
• Those Attending Counselling
• Specialist Counselling Services
• Duration Of Counselling

7. Counselling

OVERVIEW

261 THE FAMILY PROCEEDINGS ACT 1980 has changed the way family disputes are resolved. Parties are encouraged to seek counselling to help reconcile their differences, rather than litigating; lawyers have to explore with clients the possibility of reconciliation or conciliation.[86]

262 Couples may approach the Court for counselling while they are still together or in the process of separating, or after they have separated.[87] Counselling can take place before proceedings have been filed or at any stage after proceedings have begun. The Court can also direct a couple to attend counselling if a custody or maintenance order has been applied for.

263 Counselling can be useful in several ways. It can give couples who are unsure about separating an opportunity to explore options, including staying together, and addressing relationship difficulties. For most of the couples that come to the Family Court, at least one party will have decided on separation. One partner may need counselling to come to terms with the separation, while the other may be ready to discuss post-separation arrangements for children, and division of property.

264 Either party can ask for counselling, but where there has been domestic violence the couple cannot be made to attend counselling together.[88] Relationship Services, the organisation providing most New Zealand counselling services, informally offers clients an individual session followed by a joint session. The initial session gives parties an opportunity to express concerns about violence or safety.

265 Relationship Services is the biggest single Family Court counselling provider, although individual counsellors are contracted separately. Most Relationship Services counsellors have a tertiary qualification and two years practical experience before coming to Family Court work. Once they join Relationship Services, they take a course that familiarises them with Family Court work. We support this commitment to qualifications, experience and training.

266 Overall, most of those responding to the preliminary paper were fairly satisfied with their counselling. Some, however, were unclear about the goals of counselling. Men commented on the low number of male counsellors and cited it as an example of systemic gender bias in the Family Court.

THOSE ATTENDING COUNSELLING

267 Both married and de facto couples are eligible for counselling under the Family Proceedings Act 1980. But Relationship Services believes the legislation should allow a wider circle of people to attend if, in the view of parties, counsellor or judge, it might help resolve the problem.[89]

268 Some counsellors we spoke to were concerned that the Act’s references to “marriage”, “husband”, and “wife” prevent lesbian and gay couples from accessing Family Court counselling.[90] We agree this is not a sensible or fair distinction, and recommend counselling services be made available to all couples, regardless of sexual orientation.

269 We also believe it would be useful to offer counselling to people who are parents of the same child, but who have never been in a de facto relationship, particularly if they both want to be involved in parenting. Such parents may have distinct needs, especially where they have little relationship history, and must develop trust, confidence and communication.

270 Some Family Court co-ordinators are unwilling to refer only one partner to counselling, on the basis that agreement cannot be reached without both parties being present. We consider there are circumstances where it would be useful for one party to ask for and get counselling even if the other party does not wish to. It may remove a hurdle to resolution, or help a party accept circumstances that cannot be changed. The Family Court co-ordinator should assess this at the intake interview.

271 Children of the relationship, step-parents, and extended family members may currently only attend counselling if the judge so directs.[91] The Family Proceedings Act 1980 does not expressly allow this, but judges have, in their discretion, so directed.[92]

272 Extended family involvement might be useful, for example, in the case of reconstituted families. Where parents have separated and re-partnered, and custody and access issues arise, it might be useful to involve children, parents, and step-parents (and step-parents’ children) in a group counselling session. Reconstituted families have special needs that can only be met with the co-operation of all involved.

273 Relationship Services and many other respondents agreed that extended family support for, and input into, resolving problems via counselling would be useful.

274 Some Mäori, particularly, felt whänau support would be helpful for Mäori families, and would acknowledge the important role of whanaungatanga in Mäori families.[93]

Recommendations

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, 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.

SPECIALIST COUNSELLING SERVICES

275 Ascertaining the counselling needs of parties, either initially or later in the Court process, and referring them to the most appropriate provider will be an important part of the extended Family Court co-ordinator role.[94]

Culturally appropriate counselling

276 Relationship Services and other organisations offer Family Court counselling services by and for specific ethnic groups; for example, Mäori and Pacific Islands peoples. Chapters 13 and 14 discuss these services.[95]

Recommendation

Counselling services should be developed for specific ethnic groups.

Children

277 Chapter 5 on providing information and chapter 8 on mediation suggest children would benefit from counselling. Parental separation, particularly where there is extreme conflict or non-co-operation, can damage children, and we recommend developing programmes and materials to help them through the transition.

278 We believe counsellors can be useful in discovering whether children want a say in what is happening in their family, and how they might want to do so. Children who want to tell their parents, the mediator or the judge how they feel, might need encouragement to find their voice.

279 We do not envisage it as the counsellor’s responsibility to report what the child says or wants, but rather to help a child work out:

• whether he or she wants input into the process;

• how he or she would like to have input.

280 A child should be able to ask the counsellor to tell parents something, if he or she feels uncomfortable about raising the issue with parents directly.

281 We suggest counsellors use materials like those developed by the UK Lord Chancellor’s Department (LCD). The LCD designed workbooks that gave children an opportunity to talk, write, and draw about what is important to them in their family life, and day-to-day arrangements.

282 Existing counsellors might need additional training to work with children. Some family therapists experienced at working with children could be accredited as Family Court child counsellors/ therapists.

283 We believe such counselling should be available at the request of a child, parents, Family Court co-ordinator, counsel for the child, specialist report writer or judge.

Recommendation

Children should have access to counselling services.

Material should be specially designed for the use of children.

Special needs

284 Certain cases come before the Family Court that might benefit from targeted counselling, facilitated by a specially trained counsellor. These might include cases where:

• One or both litigants adopt a highly conflictual stance with one another and others involved in the conciliation/court services.

• There is a history of violence or abuse against the other parent and/or children by one or both parents.

• One parent has made allegations of sexual or physical abuse against the other parent.

• One parent with a history of little or no contact re-enters the child’s life to seek or claim custody or contact.

• Both parties are immature and inadequate.

• One party is “mentally normal” but has suffered a severe shock, outrage and ongoing deep distress because of a sudden loss of partner and/or betrayal and who is creating barriers to the children’s contact with the other parent.

• One parent is “mentally normal” but has developed a fixed, intransigent position because of a political position about gender issues, or with the support of extended family is claiming sole custody.

• One parent seeks to change location (especially challenging if they wish to move to another country).

• A child has become alienated from one parent and after investigation there appears to be no rational basis for the refusal to have contact.

• One or both parties has a mental disorder – either a psychosis (especially dangerous if accompanied by substance abuse) or severe depression or personality disorder, for example, obsessive/borderline/narcissistic.

• One or both parties abuse drugs or alcohol.[96]

285 Specialised counselling in situations like these would most likely take place after parties have filed proceedings, when they might behave in a way that alerts a counsellor, Family Court co-ordinator, specialist report writer, or judge to the need for specialised services.

286 Similarly, a Family Court counsellor who believes specialist counselling would be desirable, should be able to make a next-step direction for the Family Court co-ordinator to consider when making a referral.

287 The Family Court co-ordinator and specialist report writer should be able to recommend that any party to a Family Court dispute attend specialist counselling.

288 We believe it desirable that judges be able to refer any party to a Family Court dispute to specialist counselling services.

DURATION OF COUNSELLING

289 Parties now approaching the Family Court are offered six free counselling sessions. As mentioned above, the first session is individual, followed by up to five joint counselling sessions.

290 Because provision of information about the law and Family Court services is not as comprehensive as it might be, counsellors also currently inform clients about the Family Court.

291 Some Relationship Services counsellors we spoke to said they also conduct what they described as mediation during counselling sessions.[97]

292 We consider information giving, parenting programmes, mediation and specialist counselling to be separate processes. These should be kept distinct, and provided by professionals with appropriate expertise.

293 This report makes several recommendations about information, extending counselling services to a wider range of people than is currently offered, and specialist counselling services. Chapter 6 recommends providing information about the Family Court and its processes through printed material, an expanded website, videos, media campaigns, and information sessions for parents and children. Improved access to information is likely to reduce the counsellor’s role in explaining the law and the Court process to couples.

294 We also recommend that mediation be available to those seeking help to resolve their disputes. Qualified mediators with specialist Family Court training would conduct these mediations. This means it would no longer be necessary for counsellors to undertake mediation while counselling clients.

295 In view of the increased emphasis we propose on providing information and mediation, we do not believe all clients will necessarily need six counselling sessions. Some might resolve their disputes in less, others might not be amenable to general counselling, or might require urgent direction for court orders.

Recommendation

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.