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396 THIS CHAPTER CONSIDERS the tasks Family Court staff undertake currently, how these are managed, and how management might be improved.
397 We have drawn on submissions from the Department for Courts and other Family Court professionals because this is not an aspect many court users can comment on in detail. We have also visited courts of varying sizes serving different communities. We have spoken to Court staff, including Court managers, caseflow managers, team leaders, Family Court co-ordinators, case progressors, Court takers and counter staff. We have also met with staff in the Department for Courts national office.
398 The Family Court is regarded as a “Court with a difference” by the Department for Courts and Court managers, whose responsibilities extend across the District Court (that is, management of the Family Court and its staff is only part of their job).
399 The rationale for establishing a Family Court was to allow for a different way of dealing with family disputes, and to resource conciliation services, thereby making judicial decisions more of a last resort. The Family Court Bench, and professionals such as lawyers, counsellors, and psychologists, have encouraged that sense of difference by endorsing the Court’s specialist nature and its focus on conciliation.
400 But the Department for Courts has failed, in some respects, to recognise the implications of this approach. Departmental objectives for the overall Court system often conflict with the aims of the judges and professionals working in the Family Court; a clear example of this is the way the Family Court co-ordinator role has been changed since the 1980s.[145]
The present situation
401 The Department for Courts distinguishes between caseflow management and case management. Caseflow management is a system for managing disposal of cases; case management is what is done to progress an individual case.
402 The Department is completing the Courts Modernisation Project, which will facilitate active case management. A model of how the Courts will operate has been developed, emphasising improved processes and job designs within Court registries. This operational model will be supported by computer-based information technology in the form of the new Court Management System (CMS) expected to be introduced in all Family Courts by June 2003.
403 The new operational model is designed to complement and support the caseflow management practice note issued by the Principal Family Court Judge in September 1998. This deals with essential principles, management guidelines, operation of registrars’ lists, judicial directions and timelines for progressing cases through the Family Court.
404 The operational model improves caseflow management to minimise delay and promote early settlement by:
• increasing individual responsibility for completing business processes;
• encouraging “ownership” by specific personnel;
• encouraging proactive case management by early review of documentation completeness and preparation, and scheduling events at defined stages of proceedings;
• having the Court take responsibility for facilitating co-operation between all stakeholders in a case;
• reducing the average number of hearings per case.
405 The CMS will alert staff to critical dates, enabling them to monitor closely the progress of a case and liaise with parties where necessary. Most Family Courts have made substantial moves towards implementing operational model business processes, but the new system cannot be fully introduced until the CMS goes live.
406 As new staff have been employed, Court management has been encouraged to move them at the outset into roles aligned to the operational model.
407 The introduction of the operational model and the CMS will require major change management. At the time of writing, each Family Court was aware of the intended changes and the systems that would apply to their Court. It is not fully known, however, how the system and new staff designations will work in practice, so we are not in a position to comment on their effectiveness.
408 The following comments must be interpreted against this background of change.
409 Apart from a concentration in the Auckland region, New Zealand’s population is widely spread. It benefits most people, therefore, that the Family Court operates registries and conducts hearings in small centres throughout the country.
410 Family Court judges are attached to courts in larger centres, where a Family Court co-ordinator is also based. Smaller centres have fewer staff, and the judge usually attends once a fortnight or once a month. Some of these centres, such as Papakura (attached to the Manukau Family Court), are big enough to support a Family Court co-ordinator. Others, such as Whakatane (attached to the Tauranga Court), do not have a Family Court co-ordinator, and the co-ordinator’s functions are performed partly by local staff and partly by the co-ordinator from the main centre.
411 A large District Court in a main centre such as Christchurch is headed by a Court manager who is cluster manager for surrounding District Courts, and District Court registrar. This manager would not normally be directly involved with the Family Court. The Christchurch Court has a Family Court manager as well as criminal, civil and support services managers.
412 At a smaller centre, such as the Tauranga Court, the local Court manager is responsible for criminal, civil and family cases. A caseflow manager, who is deputy registrar, reports to the Court manager. At Tauranga, the caseflow manager is responsible for both family and civil work. In a bigger Court like Christchurch, four managers report to the Family Court caseflow manager, and they may be designated team leaders. Team leaders are responsible for staff but, under the new system, will undertake case progressing along with those who are not team leaders. Court taker and customer services officer positions are more junior, but the case progressor position will subsume aspects of these roles in smaller courts.
413 In very small registries, Family Court case progressors are also likely to be involved in civil work.
414 The range and number of staff at each registry has implications for the way work is organised and how specialised individual staff functions can be.
415 Family Court co-ordinators do not fit easily into the Court management hierarchy. They report to the caseflow manager, and their salaries fall between caseflow manager and case officer/case progressor level.
416 Family Court staff vary considerably in experience and education. Some Courts are fortunate enough to have stable, long-serving staff; in others, especially in the Auckland area, staff turnover is high. Staff in the same positions have educational qualifications ranging from school certificate to bachelor’s degrees.
417 Below are Family Court staff salary scales:
Minimum Fully competent Maximum
Band salary $ salary $ salary $
A 19 491 22 930 25 223
B 25 500 30 000 33 000
B+ 28 050 33 000 36 300
C 31 025 36 500 40 150
D 36 125 42 500 46 750
E 44 492 52 343 57 577
F 53 755 63 241 69 565
418 Case officers or progressors fall into the $31 025 to $40 150 salary range, Family Court co-ordinators into the $36 125 to $46 750 range, and caseflow managers into the $44 492 to $57 577 range.
419 Family Court case management differs in several ways from that of other District Court divisions.
420 The Family Court administers a range of statutes all with different statutory procedures and caseflow management tracks; for example, Mental Health (Compulsory Assessment and Treatment) Act 1992; Domestic Violence Act 1995; Protection of Personal and Property Rights Act 1988 (PPPR Act); Children, Young Persons, and Their Families Act 1989(CYPF Act).
421 Not all stages of these proceedings are under the direct control of the Court or parties, because other people and agencies have a role in progressing cases; for example, under the PPPR Act, counsel is appointed for the subject person and must report to the Court; under section 29A of the Guardianship Act 1968, a judge can order a report from a psychologist; hearings under the Mental Health (Compulsory Assessment and Treatment) Act 1992, although heard by Family Court judges, are usually held at hospitals rather than in court; under the Domestic Violence Act 1995, applicants, respondents and children may be directed to programmes.
422 Court staff must implement these referrals and procedures, monitor timeliness, and reintegrate the case into the Court procedure track as each step is completed and reported on.
423 The Family Court processes many urgent, without-notice applications under the Domestic Violence Act 1995, as well as the usual without-notice applications for directions as to service, which are quite common across the civil jurisdiction. These applications must be urgently referred to the area’s duty judge, which might mean they are faxed into the central court where the duty judge is sitting. Programmes must be organised for the respondent as soon as an order is made. Special procedural tracks ensure that if respondents wish, they can be heard within the specified statutory timeframe.
424 The Guardianship Act 1968 and Family Proceedings Act 1980 provide, in certain circumstances, for referral to counselling, that must be actioned by the Family Court co-ordinator or the case progressor.
425 The Family Court co-ordinator or case progressor must also action directions for psychologist and social worker reports under the CYPF Act and the Guardianship Act 1968. Receipt of these reports must also be monitored and, once the report is available, the case reintegrated into the caseflow management system.
426 Court staff have to liaise with, and manage lists of, professionals such as psychologists, social workers, and counsel for the child willing to undertake Family Court work.
427 Because of the various interventions, there is more contact between Court staff and the parties or their lawyers in Family Court proceedings than in other civil proceedings in the District Court.
428 A further difference between the two courts is the increasing number of those representing themselves in the Family Court. Court staff are instructed appropriately: it is not their role to give legal advice. Nevertheless, self-representation results in many more enquiries about forms, procedures and next steps. Staff often find it difficult to draw a line between giving self-represented litigants appropriate help, and help that goes beyond their role and training. Dealing with self-litigants can be very time-consuming.
429 Issues dealt with in the Family Court can be emotionally draining for staff, whether it is reading disturbing affidavits to determine appropriate referrals for applicants and respondents under the Domestic Violence Act 1995, or dealing with distressed, angry or suicidal people. Such situations arise often in the Family Court.
430 Staff in smaller Courts will also be handling civil and possibly criminal matters, and must manage competing workloads.
431 The range of tasks undertaken by the Family Court co-ordinator varies around the country, and this affects the work required of other Court staff.[146]
432 The Family Court is a specialist court, so its case management requires tasks and skills that extend staff roles. Family Court staff need:
• to understand the whole system, not merely the tasks specified by their job description;
• knowledge of relevant statutes and practice notes;
• the ability to use their initiative;
• the ability to organise and administer their own tasks and files;
• the ability to empathise with Family Court clients;
• the emotional capacity to deal with the type of work;
• a high level of literacy;
• acceptable computer skills.
Family Court co-ordinator
433 We recommend expanding and strengthening the role of the Family Court co-ordinator (see chapter 3). This may mean employing more co-ordinators to provide the extra services.
434 Family Court co-ordinators must have administrative support. It is not sensible to employ co-ordinators for their conciliation and management skills, then let them spend time mailing computer-generated letters and doing other minor administrative tasks that could be done by a less-skilled employee.
435 The extended role would have implications for Family Court co-ordinator salary bands.
436 The position must be incorporated into the administrative structure with appropriate lines of responsibility and accountability so the position is valued and supported.
Recommendation
Expand the Family Court co-ordinator’s role (see chapter 3), and employ more Family Court co-ordinators.
Case progressors
437 A case progressor[147] requires a broad range of knowledge and skills. The preferred operational model – and what is, in any event, necessary in smaller registries – is for each progressor to be allocated cases across all statutory jurisdictions.
438 In bigger Courts, it is essential that work is allocated according to statutory jurisdiction, especially care and protection, and mental health matters. These require specialist skills and good liaison with relevant outside agencies. Having one case progressor as the Court contact for all a local hospital’s mental health enquiries allows relationships to be built up, with a consequent improvement in liaison and efficiency. The same dynamics operate between Child, Youth and Family Services (CYFS) and the Court. It would be wasteful to have four or five case progressors in one court, building relationships with local mental health workers and the local CYFS office.
439 There are plans to extend the decision-making role of case progressors by allowing them to exercise various registrar’s powers.[148]
440 It is unlikely, as the skills, experience and responsibility of case progressors are increased,[149] that Courts will be able to employ and retain them without paying them more. Their current salary band is $31 025 to $40 150. Some might also be team leaders, employed in the $36 125 to $46 750 band.
441 There may be an argument that the experience, skills, and responsibility required of Family Court case progressors requires paying them at a higher rate than equivalent Civil and Criminal Court positions.
Recommendation
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.
Training
442 Court workloads are usually such that it is difficult to train staff on site because they are fully occupied with their jobs.
443 The knowledge and skills base required of a case progressor is so extensive that, if one resigns without an immediate replacement, it compromises the Court’s ability to deal with day-to-day work.
Recommendation
More consideration should be given to the training needs of Family Court staff, and the delivery of such training. 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.
Staffing
444 There are clear, ongoing difficulties in filling vacancies, and Courts often operate without their full complement of staff. Unfilled vacancies put pressure on existing staff, and make it hard to retain them; for example, Manukau Family Court was minus a team leader from January to July 2002, and another position was vacant from March to September 2002; Porirua Family Court had a vacancy from May that was not filled until September 2002; at Taupo, Family Court work was run out of the Rotorua Court for about three months in 2002.
445 The current system has too little slack to cover for illness, holidays, resignations and new staff training. Many staff are working unpaid overtime and feel under pressure. We have been told of courts where Criminal Court staff can complete their work without a problem, but where the Family Court workload cannot be completed in normal working hours. Family Court staff do not feel valued.
446 We note that the Validation Report on the Wellington Development Court concluded that process changes alone would not generate the overall staff savings anticipated by the Strategic Business Plan. That report also said future salaries, and links between remuneration and performance management initiatives, would have to be determined.
Recommendation
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.
Management
447 Some Court managers do not now have detailed knowledge of statutory requirements for case processing. There is a feeling among some staff that managers do not understand what is involved in their tasks. Managers with technical knowledge are in a better position to direct work flow and resolve difficulties
448 Team leaders with minor staff supervision roles, such as staff evaluations and performance plans, feel they have time to do no more than complete staff evaluations when required.
449 Managers have limited scope for resolving or managing problems, because of a lack of resources. They can listen, but are often unable to resolve difficulties because the desired response is impossible within the available budget.
Recommendation
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.
Hearing time
450 Many Family Court staff report a lack of judicial hearing time for mediation conferences, short causes and long hearings. A six- to eight-week wait for mediation conferences, and a two- to three-week wait for short cause times (that is, 15- to 30-minute slots) is not uncommon. At the time of writing, Wellington area delays of two months are common, as a result of the death of a judge, and there may be many months’ delay (four to eight) for hearings longer than a day. Such delays cause duplication of work in corresponding with lawyers and parties.
451 There is not enough judicial time to cope with judges taking holidays, sick leave and sabbaticals. In November 2002, there were six acting warranted judges with family warrants. They sit as and when required, and not all their time is spent in the Family Court. If six acting judges cannot provide sufficient cover to avoid cancellation of hearing time when a judge dies suddenly, then current judge numbers are failing to meet system needs. Ideally, acting warranted judges should be available to fill unexpected gaps, rather than be included in the standard roster to cover basic hearing time.
Recommendation
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.
452 Family Court management does not operate in isolation. Changes to the Family Court co-ordinator role, the availability of alternative dispute resolution procedures for Family Court clients, and taking some tasks away from judges will all impact on Family Court management and staff tasks.
453 We welcome the Courts Modernisation Project, with its role reallocation and redefinition, and the Court Management System. These developments will enable courts to work more efficiently.
454 The new operational model and CMS must be supported by staff skilled and competent to operate them. Staff should be adequately trained and supported, attracted and retained; inadequate salaries will make this difficult. Well-trained, competent and appropriately paid staff are likely to be a cost-effective way of improving efficiency and workload capacity.
455 Incompetent staff and high turnover cause inefficiencies – mistakes, delays and duplication of work. Submissions we have received cite problems such as failure to inform lawyers and parties of registrar’s list dates; sending out a notice advising 21 days to file a defence when time had been abridged to three days;[150] no systems, for example, for automatically issuing final, undefended protection orders;[151] and, directions and orders not typed up and available within a reasonable time. The Family Law Section of the New Zealand Law Society and individual lawyers’ submissions said staff seemed stretched to complete work within reasonable timeframes, and that staff shortages stressed the system further.
456 Family Court matters can be prolonged because of the number of stages in a proceeding. A delay of a few days referring a case to counselling, or a week in providing a section 29A psychologist’s report brief, or three weeks wait for short cause hearing time, can compound, resulting in a long delay between application filing and eventual resolution. Each stage of the process has to be managed efficiently. The unavailability of section 29A psychologist’s report writers and others also causes delay, but this is beyond the Court’s control.
457 We received many reports about the Family Court’s heavier workload; for example, we were informed that CYFS work at the Tauranga Court has increased by 60 per cent over the past three years. There is a limit to the extent to which a heavier workload can be absorbed by existing staff.
Registrar powers
458 If registrars could undertake some tasks performed currently by judges it would make more time for judicial tasks that cannot be delegated.
459 Registrars are not currently exercising their jurisdiction to the full. Judges and the Department for Courts have been researching the extent to which registrars are not exercising all their powers, to identify what will allow them to do so.
460 Some tasks that judges undertake are largely administrative or quasi judicial, and might, with statutory changes, be handed over to registrars.
461 Caseflow managers and case progressors or case officers have been assigned registrar’s powers. It would free up judge time if registrar’s powers were enhanced, and/or registrars given wider jurisdiction. But this would increase the workloads of case progressors, necessitating the creation of more positions. If the responsibilities of case progressors were increased, the Department for Courts would also have to employ better qualified people and be willing to pay them more.
Recommendation
Judge time could be freed up by expanding the registrar role; although doing so would increase the workloads and responsibilities of registrars.
If demands on judicial time are to be reduced by expanding registrars’ powers and alternative dispute resolution, the heavier workload that this will place on other court staff must be recognised.
Judicial registrars
462 It has been suggested that the system could accommodate a role between that of current Court registrars (caseflow managers and case progressors) and that of judges. These officers would undertake minor decision-making tasks such as presiding over pre-trial directions conferences, making interlocutory orders, directions, interim orders and final orders by consent.
463 They would need legal qualifications but not those necessary for a District Court judge (that is, seven years post-admission experience).
464 We have reservations about the creation of such a role.
465 For such positions to save money, appointees would have to be paid much less than District Court judges. Consequently, they would have less experience and fewer skills; they would also probably be younger. They might see themselves as unlikely to advance in their own practice or be eligible for appointment to the bench. Such a position would not lead to appointment as District Court judge. We are concerned that such appointees might not be qualified to perform effectively, especially in the interventionist case track we envisage for the Family Court.
466 We would prefer the existing powers of registrars to be exercised by case progressors, paid appropriately for the extra responsibilities, and that our recommendations be trialled and implemented before the appointment of judicial registrars is considered.
467 We do see scope for a new position requiring more than a case progressor’s expertise. Whether it would require a legal qualification needs further assessment. We would not consider such a position a stepping stone to judicial appointment.
Recommendation
The establishment of a judicial registrar position should be deferred until the changes we recommend have been considered, and the effects of implementing them assessed.
Judges
468 Family Court judges have always been concerned with best practice, with achieving resolution in the best possible way, and with avoiding unnecessary delay. They are particularly concerned with children involved in Court processes.
469 Judges have made many calls for change and for case management initiatives. Initiatives from the Principal Family Court Judge include:
• 1993 – “A Review of the Family Court” report by committee chaired by Judge Peter Boshier (Boshier report);
• 1992 – Interim Report of Carruthers Committee for a Case Management Pilot in Three Courts; Final Report 1994;
• 1998 – Caseflow Management practice note;
• Practice notes 14 and 15 on Counsel for Child – November 2000 effective 1 February 2001;
• Practice note 16 on Specialist Report Writers – effective 1 July 2001;
• Practice note 17 on Family Court Counsellors – effective 1 September 2001;
• New Family Court Rules – in force from 21 October 2002.
470 Individual judges have, with the backing of the Principal Family Court Judge, trialled new processes, such as the docket system in Auckland, and streamlining of CYPF Act procedures in Wellington and Porirua.
471 Some of these trials and initiatives have been incorporated into practice notes. Others have been lost because, unless the Department for Courts implements them nationally, they are difficult to maintain in an environment of staff changes, limited budgets, and a nationwide drive for comparable standards.
472 Judges with ideas for improving practice in their own courts want to implement them immediately, to address the problems that gave rise to them. Some interventions are within the management role of judges.
Department for Courts
473 The Department for Courts, on the other hand, views the country as a whole and does not introduce new procedures without extensive study and policy assessment. The Department prefers to trial new interventions as pilots in a few courts, and monitor outcomes. Only then is it willing to implement a nationwide procedure. But such a process takes time and resources.
474 The Courts Modernisation Project applies to all courts, including the Family Court, and has been a huge undertaking for the Department for Courts over several years. The changes it has prompted, including the new computer management system, will improve procedures, efficiency, and data availability.
Trial and implementation
475 We hope that our suggestion for a Family Court executive manager would improve liaison between judges and the Department for Courts so that innovative ideas are not lost, and proposals for change can be prioritised.
476 This would not bar individual courts from making minor changes to practice. It would mean, though, that if a change has implications for national practice management and is to be implemented across the country, choices must be made from the ideas on offer so that changes can be trialled and monitored.
JUDGE/DEPARTMENT FOR COURTS LIAISON
477 The Department for Courts is responsible for administering the entire court system. All Family Court staff are departmental employees.
478 The Principal Family Court Judge and individual Family Court judges manage their own courtrooms and procedures.
479 Clearly, judiciary and department must support each other. The judge must work with available resources, and cannot ask staff to go beyond the terms of their employment contracts.
480 The head of the Department for Courts national office family team reports to the operations manager for all courts, who is in turn responsible to the general manager of courts.
481 The Principal Family Court Judge liaises monthly with this team, and also with the general manager of courts.
482 The Family Court senior management team includes the northern regional manager, a Department for Courts national office representative, and several Family Court managers from a number of Courts, including Whangarei, Auckland, Wellington, and Christchurch.
483 We consider that although these groups are useful, a designated Family Court executive manager at national office, with a dedicated team, would be more effective.
484 The Principal Family Court Judge and this Family Court executive manager could liaise directly and regularly. This would allow other judges (including administrative judges) to be more readily involved with the dedicated team on relevant issues. There would also be a direct link between Family Court managers, the department’s national office, and the Principal Family Court Judge. This should result in effective liaison for innovation and solving problems, as well as more efficient day-to-day management and communication.
485 This group would be responsible for initiating research projects to monitor court processes.
486 It would also be helpful if there were a departmental position designed to be a consumer interface. That person could support committees set up from time to time to tackle specific issues. These committees could include representatives from relevant professional groups and client representatives.
Recommendation
Court management does not stand alone and must be integrated into case flow management and service co-ordination. A new chief executive role should be established, 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[152] is essential.
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URL: http://www.nzlii.org/nz/other/nzlc/report/R82/R82-9_.html