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• Introduction
• Family Court Procedures
• Areas Of The Substantive Law
• Recommendations
• Conclusion And Final Recommendation

12. Ideas for further change

Introduction

912 THIS STUDY OF WOMEN’S ACCESS to legal services represents part of a

far wider inquiry that could be made into the responsiveness of the law and justice system processes to the circumstances of women. Certainly, the women who were consulted were critical of a wider range of features of the justice system’s operation. The breadth and depth of Mäori women’s concerns, which spanned the criminal and civil justice systems, pose large questions about the direction of future reform efforts. (See Justice: The Experiences of Mäori Women, Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei (NZLC R53))

913 There have already been calls for a broad “first principles” review of the criminal justice system. For example, in the context of the various current research initiatives (including the Law Commission’s work on criminal prosecution and alternatives to prosecution, criminal evidence, trial by jury, and “battered women’s syndrome”), Judith Ablett-Kerr QC has commented:

I do not necessarily quarrel with all of these changes but draw them to your attention because I suggest that they demonstrate that we practise law at a time when not only are there questions of significance to be asked about our fundamental system of justice but at a time when there is taking place significant but piecemeal changes to the legal system itself. I suggest that now is the appropriate time to stop and look, not merely at each individual change but at the wider picture of what it is society wants from its criminal justice system, to decide if it is getting what it wants and, if not, then what should be done about it. A company strategy is not planned by looking only at the small picture and an effective system of justice that retains the confidence of society cannot be maintained without from time to time stopping and reviewing the broader picture. (Ablett-Kerr, 1998 14)

914 Attention to the broader picture has led to the substantial package of reforms that is now being introduced to the justice system of England and Wales. Directed primarily at the civil justice system, the reforms of court procedures that are being implemented are the product of more than six years’ research and consultation. The complete overhaul of the civil and criminal legal aid schemes is the result of the expansion of the reform agenda in 1997, when the Labour government came to power. The impetus for the reforms has been the unwavering view of successive governments that only radical change to the civil justice system will provide the conditions in which all citizens can obtain access to it, at a cost that is sustainable for both the state and individual users. Among the changes most relevant to family dispute resolution are those which emphasise mediation outside the courts as an alternative, sometimes compulsory, to litigation. For example, the Lord Chancellor has explained that in most family cases (except care and protection, adoption and domestic violence cases), applicants for state-funded financial assistance “will not be granted representation by a lawyer, unless they can show that their case is unsuitable for mediation”. (Modernising Justice 1998, 37)

915 The condition of the mediation services that will be available to meet the large demands which are to be transferred to them from the English and Welsh courts has been the subject of attention by the Legal Aid Board over the last two years, as the likely direction of the reforms has become evident. Writing in 1997, the director of the Legal Action Group praised the board’s “‘can do’ style” in overhauling legal aid administration in the last decade but added, with reference to the “well-worn dangers of too much haste”, that it:

is now carrying an enormous weight of expectation. Single-handedly, the Board is being expected to come up with the answer to quality control of legal aid and mediation services; service delivery by lawyers and lay advisers; and the development from scratch of a nationally operating series of matrimonial mediation services. Each one of these raises major methodological questions which are in danger of being left unanswered in the intemperate rush for immediate results. (Smith 1997, 35)

916 In June 1997, the Legal Aid Board reported that it had signed contracts with groups offering mediation for matrimonial disputes to enable pilot studies of their services to be conducted, and that several more were to be signed over the next few months. It explained:

The pilot allows for a number of different models for mediation to be tested. The current mediation profession is thinly spread and a number of different approaches have been developed reflecting the background and qualifications of those offering the mediation service. For example, the Family Mediators Association offers twin mediators, one legally qualified and one not, providing all issues mediation while the National Family Mediation provides a single mediator, non legally qualified, dealing with children only issues. There has been a significant growth in the number of solicitors qualifying as mediators but one of the major difficulties we face is the very small number of cases proceeding through mediation. (International Legal Aid Conference, Session 4: Living with a Capped Budget, “Contracting – The English Proposals”, Legal Aid Board, 1)

917 A related initiative, reported in The Times of 28 January 1999, is the introduction by the English Law Society of a scheme to help people find specialist family lawyers. The society is publishing a list of 4000 law firms which have been vetted by the society and found to “have a track record in family law and [to be] committed to encouraging couples to resolve matrimonial disputes peacefully”. The list of firms will be publicised in telephone directories and Yellow Pages, as well as by agencies such as citizens advice bureaux. Law firms on the list will display a Family Lawyers logo. The Times also noted that most of the 164 000 people who filed for divorce in England in 1997 had had no previous contact with a solicitor.

918 During the course of this study, suggestions have been made by women, lawyers and judges that the procedures for family dispute resolution in New Zealand should be reviewed to determine whether the just treatment of women would be promoted by more radical changes than have already been implemented in recent years, or which are imminent or likely to be introduced in future. New Zealand’s specialist Family Court was created in response to the recommendations made by the 1978 Royal Commission on the Courts, which recognised the need for a unique approach to the resolution of family disputes which are, by their nature, generally distressing to all involved, sometimes highly complex and always of central importance to the future security (material, physical and emotional) of the men, women and children involved. Among its unique features, the Family Court provides counselling services and utilises judge-led mediation. It also depends on the services of counsel for the child and of specialists (primarily social workers and psychologists) who provide reports on the circumstances of those involved in proceedings. Much of the cost of those professionals is borne by the state. As has been seen, the lion’s share of civil legal aid expenditure is also dedicated to family proceedings.

919 A number of the submissions to this study have highlighted the fact that it is nearly 20 years since the Family Court was established, and have suggested that the time is ripe for close examination of the benefits and disadvantages of greater reliance on non-litigious family dispute resolution processes conducted by suitably trained and skilled professionals. Some believe that greater reliance on such processes would achieve substantial savings in the costs of family dispute resolution, not only to the parties involved but also to the state. From the information gathered in the study, this chapter offers comment on this and a number of other matters of particular relevance to women, and which are considered to be appropriate subjects for further attention.

Family Court procedures

920 The concerns women voiced about their access to the civil justice system had a heavy emphasis on their need to resolve family disputes. A frequent complaint was that current family dispute resolution procedures are particularly damaging to the welfare of women and their children when undue time and cost, and increased acrimony within the family, result from the procedures being dragged out. Those concerns were summarised in the consultation paper Lawyers’ Costs in Family Law Disputes (NZLC MP 10). Consistent with the study’s focus on legal services, that paper emphasised the importance of family lawyers acting in accordance with their professional duties, both to the court and to clients, and in full awareness of the social context which surrounds family law work. Attention was also drawn to the Family Court’s limited ability to control or censure abusive tactics employed by parties, and its practice in awarding costs. These had been the subject of frequent criticism by women clients and by lawyers.

921 A selection of quotations from the consultation paper indicates the matters raised for comment:

“If particular lawyers are on the other side, I push on very quickly with little or no negotiation because they’ve burned me and my clients before. There are lawyers who breach their duty to the Family Court by not promoting conciliation – small town, you know who they are.” – Submission 319 (lawyer)

“My fees were nearly $30 000 because of the stonewalling of the other side.” – Submission 422

“As a Family Court lawyer of in excess of 20 years experience, I can tell you that one of the greatest injustices is that of the inability of women to obtain realistic costs against men who fail to give information or who argue and fight for no reason up to the courthouse door.” – Submission 467 (lawyer)

“My then husband proved to be very difficult in respect of access for approximately 18 months, and it took me 15 months, three affidavits and a visit to court, and thousands of dollars, to obtain my share of the matrimonial property.” – Submission 261

“[M]y ex-husband’s first solicitor refused to continue acting on his behalf . . . [He] found another solicitor who was willing to play games and proceeded to do so. My solicitor took no action to manage the situation and I ended up with huge legal bills.” – Submission 43

“Lower standards are a product of the economic structure of the profession. Firms have downsized and young untrained practitioners losing their jobs are setting up in sole practices. Family law is an area where it is difficult to be effective without a lot of experience . . . Women, because they tend to be less well off than men, may end up with the inexperienced lawyer.” – Submission 68 (lawyer)

“It has taken me 2 years to reach an agreement settlement [at a cost of] $14 000 on legal aid for me. I gave in to many things over those 2 years, some that the children now do without, some that I need to replace for the general running of the house. Every time I did there was a new list drawn up of further items my husband wanted that I would have to go through. It took a year for him to accept the valuation of both the house and his superannuation. Last December I took this issue to court to attempt to have the judge rule and dictate an end to the process but we were simply told to go back to the drawing board! Eventually in March an agreement was signed. I released what I had to but my husband refused to release the house, my life insurance, my vehicle or the substantial money he owed me. Costs escalated again. Once again we returned to court and this time it was dealt with properly. The issues raised here are this. It was evident by the constant new lists and refusal to accept or release what had been agreed to that the hold-up was with my husband. And yet I have this horrendous bill hanging over my head. If I had stopped proceedings I would have forfeited my home and what was security for my children. I would never have been free to get on with my new life.” – Submission 390

“The plain facts are that in most circumstances attempts by husbands to try to obtain custody of children or to have access to children on unreasonable terms are usually an attempt either to inconvenience the wife, keep control of her, or for the man to go on the benefit . . .  If we could go to court and point out to the judge that the husband had been arguing unreasonably for many months, incurring substantial costs; and had then forced the parties into court again by virtue of his refusal to pay those costs; and the judge was not only then to award the costs up to the hearing but also for the hearing itself, we would have a lot more matrimonial property cases settling early.” – Submission 467 (lawyer)

“It seems very unfair that those who choose to prolong these issues do not have an obligation to pay any percentage of the subsequent bill of the other party. Why couldn’t an agreement be enforced without redress to the court? Why should a judge send us away when it was painfully obvious a decision could not be made between us?” – Submission 390

922 The consultation paper caused a high degree of concern among the family lawyers and Family Court judges who responded to it. At several meetings with groups of senior family lawyers and judges, a variety of views was expressed on the causes and incidence of the problems identified, and on how they might be remedied. Many considered that the recent and planned reforms to the Family Court’s procedures will deliver greatly improved services for those involved in family disputes. Among the reforms referred to were:

• the introduction of case management, with its promise of firmer judicial control of parties’ conduct in future;

• the current development (based on recent research conducted for the purpose) of best practice guidelines for, and systems for appointing and accrediting, counsel for the child and professional report writers; and

• the imminent piloting of parental education services to assist separating couples and families to focus on the interests of the children in Guardianship Act matters.

Also relevant are the new instructions to district subcommittees from the Legal Services Board concerning the recovery of all or part of the costs of legally aided litigation.

923 At the meetings, there was frequent mention, particularly by lawyers, of the court being under-resourced to do what it is otherwise well geared to do. Many referred to the Family Court’s difficult and uniquely forward-looking purpose: to achieve positive outcomes for families, and especially for children, from situations of human crisis. The message was that the “cost drivers” in these situations, and the appropriate responses to them, cannot be compared with those in other kinds of disputes.

924 Overall, there was a strong defence made of the Family Court’s structure and procedures, but this was coupled with an acknowledgement that there is a range of factors which contribute to the difficulties women had identified. Most commonly mentioned contributing causes included:

• backlogs in the courts, especially to obtain early interventions in disputes in which the parties are unlikely to reach their own settlements;

• inexperienced lawyers being delegated family work without adequate supervision;

• overly adversarial tactics by lawyers more accustomed to other jurisdictions;

• inadequate regard by some lawyers of the value of counselling as a means to narrow the issues in dispute between their clients and opposing parties;

• the inappropriateness in some situations of the style of (judge-led) mediation that is used by the court;

• the greater volume these days (compared to 20 years ago) of difficult cases involving seriously dysfunctional families and allegations of abuse and violence;

• the court’s lack of control before proceedings are commenced, meaning that the style and duration of lawyers’ attempts to obtain settlements beforehand cannot be monitored;

• the court’s lack of power to stay repeat applications (especially for custody) which the court considers to be groundless;

• the court’s lack of power to punish for contempt outside the courtroom; and

• the difficulties for judges in determining the cause of unreasonable delays in order to make costs awards which penalise that behaviour.

925 While views differed on the extent of the problems caused by each of these factors, all those at the meetings were concerned to make the point that the task of family dispute resolution is particularly complex (if not always legally, then invariably in human terms) and vitally important, not merely for the members of each family whose interests are directly involved but for the welfare of society more generally. Further, all agreed that the weight of those interests, coupled with the social and economic imbalance in women’s and men’s circumstances, demands that particular care be taken in the development of reforms that are intended to promote the just treatment of women. In particular, it was emphasised that informal (non-judicial) processes of family dispute resolution can leave women insufficiently equipped to discover and assert their rights against domineering ex-partners. And, it was observed, informal processes are generally inappropriate in proceedings which involve domestic violence and child abuse.

926 Lawyers and judges also emphasised that the great majority of family disputes are resolved without recourse to the court’s judicial powers.[30] The conclusion drawn from this was that only a small proportion of family cases involve substantial costs to the state or parties, and that the great majority of cases are being handled effectively and efficiently. As has been noted, many believed that the problems posed by the very nature of the most difficult cases, and by any shortcomings in the service received by parties in more straightforward cases, will be remedied by firmer judicial control, coupled with the benefits of other measures now being developed or already recognised as being needed.

927 Despite the range of views among the family lawyers and judges consulted on the causes and incidence of unsatisfactory service to clients and, therefore, of the strategies that might improve the system of family dispute resolution, there was reasonably widespread support for further investigation by means of a process which pays full attention to women’s circumstances and needs. In this regard, two studies were referred to as providing useful insights into matters which could benefit from further investigation: A Review of the Family Court (Boshier et al, 1993), and the Department of Justice’s 1994 Discussion Paper Family Court Custody and Research Report 8 (Hall and Lee, 1994).

928 The Boshier report was commissioned by the Principal Family Court Judge in December 1992. Among the tasks set for the committee (“the Boshier committee”) which conducted the review were that it consider:

• whether the conciliation process could and should be reinforced, restored or extended; and

• whether the inquisitorial role of the Court could and should be strengthened. (Boshier et al 1993, 28)

929 The report went further than recommending changes within the existing Family Court structure. A number of its recommendations have been influential in subsequent reforms: for example, to domestic violence proceedings and legal aid administration. But its recommendations for structural change to the Family Court have not been pursued. The Department for Courts has advised that all of the Boshier report’s recommendations, including their costs, were considered by the (then) Department of Justice. Further, in the foreword to the 1994 Hall and Lee Discussion paper, the Minister of Justice recorded his request that the department examine the Boshier report, the Hall and Lee paper, and the seven earlier papers arising from the department’s programme of research on custody and access cases, and advise him of possible improvements that could be made to the Family Court.

930 The Boshier committee’s principal recommendations for change in the Family Court’s structure would involve the establishment of a Family Conciliation Service as a service of the court, but separate and distinct from its judicial function. This aspect of its recommendations was described as being in many respects a return to the “wisdom of the original proposal” of the 1978 Royal Commission on the Courts which had led to the establishment of the Family Court. (Boshier et al 1993, 51) The Boshier committee envisaged the Family Conciliation Service being equipped to receive and resolve most applications under the Guardianship Act relating to custody and access. It would offer short-term therapeutic counselling to parties who requested it, and mandatory mediation provided by trained and accredited mediators. Mediation was described as involving:

the intervention into a dispute or negotiation of an acceptable, impartial and neutral third party, who has no authoritative decision power, to assist contending parties to voluntarily reach their own mutually acceptable settlement of issues in dispute. (Boshier et al 1993, 52)

Counselling co-ordinators were envisaged to have a key role in the service by being responsible for early classification and referral of cases, and public education. (Boshier et al 1993, 51–62)

931 The Boshier committee envisaged the judicial function of the Family Court being invoked only when cases presented “urgent serious welfare issues requiring the immediate intervention of the Court” (such as cases involving domestic violence or child abuse), or when “there is failure to reach agreement” through mediation. (Boshier et al 1993, 52) It acknowledged, however, that for many cultural groups, “the concept of conciliation of a dispute in private, between two parties with equal rights, will not be appropriate”. The efforts made, by 1993, to recruit counsellors from a variety of cultures and to encourage culturally appropriate approaches to family problems were described as being “only minor adjustments to a structure which remains overwhelmingly monocultural and is based on pakeha ethics and values”. Accordingly, the committee called for further information to be gathered about alternative family dispute resolution services required by Mäori and other ethnic communities in New Zealand. (Boshier et al 1993, 49–50) The Department for Courts has advised that it has not done work in this area.

932 Among the reasons for the committee’s recommendation to establish a Family Conciliation Service were that:

• the counselling function of the Court is regarded by many clients and lawyers as being preliminary to Court proceedings rather than a genuine alternative dispute resolution method;

• there is no real incentive for parties to settle by conciliation: there are no barriers to prevent them from continuing the dispute through the Court system as far as their financial resources (or the State’s by means of legal aid) will allow; and

• large amounts of State funding are currently resourcing the litigation branch of the Family Court whereas resources spent on strengthening the conciliation branch would result in more cases being resolved earlier and at less cost. (Boshier et al 1993, 50)

933 As has been indicated earlier, costs to the state from family dispute resolution processes are incurred in a number of areas apart from legal aid. These include the salaries of judges and court staff, the costs of counselling services, and the proportion of the costs of expert witnesses and counsel for the child which is not recovered from parties. Obviously, it is not only the state which bears the costs of family proceedings: privately paying clients of lawyers and legally aided clients from whom recoveries are made also bear the costs. Obviously, too, the interests at stake in family proceedings extend far beyond the economic interests of all involved.

934 The 1994 Hall and Lee discussion paper represents the culmination of seven years of research on custody and access cases by the Department of Justice. The views of more than 800 people (including parents, counselling co-ordinators, specialist report writers, lawyers and judges) were canvassed in that process. While many of the paper’s observations and suggestions have been influential in Family Court reform and research efforts in the last few years, again its furthest-reaching suggestions relating to the use of non-judicial dispute resolution processes have not been implemented (see Hall and Lee, 1994, especially chapters 6 and 7). The nature of the concerns which led to Hall and Lee’s proposal of a family dispute resolution system with a greater emphasis on non-judicial processes may be gleaned from these summary statements made in chapter 6 of the discussion paper:

Consideration needs to be given to clarifying what is the main purpose of Family Court counselling: is it supposed to be therapeutic or is it supposed to assist parents to resolve issues which are in dispute? If it is accepted that this last purpose is the main purpose then counselling may not be the best or only technique that could be used. Other techniques could include mediation, negotiation and conciliation. A name change for this part of the process to something such as Dispute Resolution Services would be required.
It would seem that custody disputes are not actually resolved at mediation conferences particularly often. It should therefore be asked whether mediation conferences can be made more effective . . .
It would appear that many judges frequently use their influence and authority in mediation conferences to persuade parents to agree to certain custody and access arrangements. As this practice is at variance with the orthodox definition of “mediation”, it is suggested that the role of the judge in mediation conferences be re-examined and clarified. If it is concluded that it is appropriate for judges to take a “positive directional approach”, then consideration should be given to renaming the conferences Family Dispute Settlement Conferences or something similar . . .
The majority of all surveyed groups believed that the whanau or extended family is more involved in child-raising and making decisions about custody and access among Mäori than Pakeha. Most research participants took the middle ground when questioned about the extent to which the Family Court should reflect Mäori values . . .  Perhaps judges could be encouraged to allow whanau to participate more often in Family Court conciliation procedures, and consideration could be given to examining ways in which whanau involvement could be formalised . . .
It is suggested that potentially difficult cases be identified early where possible and fast-tracked, ie given priority for Family Court services and procedures such as counselling, mediation conferences, counsel for the child, specialist or DSW reports and defended fixtures. (Hall and Lee 1994, 112–121)

935 The model proposed differs from that of the Boshier report largely because the Hall and Lee paper envisages “dispute resolution sessions” in custody and access cases to involve a range of techniques (negotiation or mediation or conciliation) which would be utilised only where both parents agree to participate. As a result, the Hall and Lee paper favours the Family Court retaining a larger and more flexible role in the dispute resolution process. Further, it envisages the Court being assisted by a key person (a Specialist Services Co-ordinator/Case Manager) who would make initial assessments of cases and refer them to the appropriate next step (including a fast track), and who would also take part in the second assessments conducted by a Case Management Team (headed by a Family Court judge and also involving the Court Registrar). The present judge-led mediation conference is seen to have a continuing role, but renamed as a Family Dispute Settlement Conference to better reflect its style and purpose. (Hall and Lee 1994, chapter 7)

Further attention to non-judicial methods of family dispute resolution

936 There have in recent years been considerable changes in the institutional context within which the Family Court operates: in the law which the Family Court upholds; in the administrative systems of the court; in the legal profession (for example, with the emergence of the Family Law Section and the current move to restructure law societies); and in the administration of legal aid. The full effects of all of those changes, let alone those which are still in development, have yet to be felt.

937 In these circumstances, it would appear that the major questions raised by the Boshier report and Hall and Lee discussion paper, and which are yet to be more widely considered, are:

• Should New Zealand’s family dispute resolution processes incorporate an increased emphasis on resolution by means other than those presently employed by the Family Court?

• If so, what kind or kinds of alternative means are most suited to the variety of family disputes and the diversity of those who may be involved in them?

• Who are suitably trained and skilled people to conduct those processes; to what extent are they available to handle the volume of cases that may be expected each year; and, if they are not already available, what is needed to develop a pool of people with the necessary skills?

• How is an increased emphasis on the alternative means of resolving family disputes to be achieved?

• How are particular disputes to be identified as being suitable for particular forms of resolution?

938 Those are all large questions and, as this study has shown, answers to them cannot be reached without close attention to the differences between women’s and men’s lives, and among the lives of different groups of women and men. The Boshier committee acknowledged that it did not conduct the type of review which could provide those answers. Its consultation programme, although as extensive as could be managed in the time available, was conducted within a period of some four months. (See Boshier et al 1993, 30) Further, the committee clearly felt impeded in its task by the paucity of data on a number of matters about which it wanted to obtain information, namely: the total number of applications filed in the Family Court in a given period; the subject category of applications; the repeat nature of such applications; and the cost of disposition particularly relating to the provision of legal aid. (Boshier et al 1993, 29) Had the committee sought data on the sex and ethnicity of Court users, the stage of family dispute resolution proceedings at which parties reach settlement, and why they do so, or whether, and if so why, some groups of New Zealanders are under-represented among Court users, it would have been equally disappointed. A contemporary study of the Court would have readier access to some of the information sought by the Boshier committee, as well as other relevant data, but further efforts would be needed to establish sources of information relevant to all the matters mentioned above. Inevitably, this affects the weight which can be placed on the observations and suggestions made in the Hall and Lee discussion paper.

939 It is beyond the scope of the present study, with its focus on women’s access to legal services, to attempt an appraisal of whether and if so how family dispute resolution processes might be changed to better promote the just treatment of women. However, the information it has collected provides a basis for the view that further consideration should be given to the questions listed above and, in particular, that it should involve (among other analytical tools) the process of gender analysis that has been identified as being essential to all efforts to promote the just treatment of women by the justice system. Further, it may be that the policy of the Legal Services Board, as revealed in its new charging instructions to district subcommittees (which are effective from 1 May 1999), has hastened the need, and provided part of the opportunity, for that kind of consideration of those questions.

940 The board’s new charging instructions provide legally aided parties with financial incentives to use mediation, and disincentives for unreasonably refusing opposing parties’ offers to mediate. They apply only when aid recipients are involved in proceedings in which mediation costs are already permitted as a disbursement covered by legal aid. By earlier instructions, issued in 1996, the Legal Services Board permitted mediation costs as disbursements except in “proceedings or parts of proceedings where mediation or a mediation conference was or might have been available in either the Family Court or any employment or other tribunal”. (Civil Legal Aid Remuneration Instructions 1996, Amendment No.1 cl 13(1))

941 The commentary to that clause explains that a mediation conference is available in the Family Court (and so mediation costs will not be covered by legal aid) for matters involving separation, custody, maintenance and related domestic issues. It continues:

a statutory mediation conference is not, however, available for matrimonial property, family protection, testamentary promises and protection of personal property rights matters. All of these types of cases may well benefit from the use of mediation as a disbursement under these instructions so it is available accordingly.

Recent communication with the board suggests that it may yet be prepared to extend the situations in which mediation costs can be covered by legal aid, so that other family proceedings (in which there is a statutory mediation conference available in the Family Court, which would include custody and access cases) are also included.

942 The financial incentives for mediation that are provided by the new instructions arise from the statement that the board would generally expect district subcommittees to impose a discretionary charge (at least in part) in a number of circumstances, including where:

The aided person refused unreasonably to allow the matter to be mediated with the assistance of legal aid as a disbursement when the other party (whether a legally aided person or not) had been willing to mediate.

Conversely, the instructions provide that the board would not generally expect a discretionary charge to be imposed where:

The aided person made a written offer to mediate but the other party unreasonably refused that offer. (Civil Legal Aid Charges Instructions, 1999, 5–6)

943 The effect of those instructions will be to require district subcommittees to provide their own answers to some of the questions identified in para 937 as requiring in-depth consideration by means of a process which includes gender analysis. For example, a subcommittee will need to determine, after 1 May 1999, when it is “reasonable” for a legally aided party in a matrimonial property dispute to refuse to offer to mediate, or to refuse an offer to mediate that has been made by the other party. One of the matters relevant to that determination will be whether there are “suitably trained and skilled mediators” available for particular cases. On this matter, the board has explained, in the 1996 instructions which introduced mediation costs as a disbursement covered by legal aid, that:

there is no requirement that the mediator be a law practitioner provided that the district subcommittee is satisfied that the person is qualified to assist in bringing about an effectual outcome. (The Board well recognises though that many law practitioners are now well suited both through their special training and experience to carry out mediations.)

Further, the 1996 instructions require a district subcommittee, before approving any amounts for mediation, to have before it a certificate from the aided person’s lawyer which states that the lawyer believes the mediator is competent to assist in resolving the issues to be referred to mediation, and the grounds for that belief. (Civil Legal Aid Remuneration Instructions 1996 – Amendment 1, cl 13(3)(a))

944 It is plain that the board is seeking to encourage the use of quality mediation in suitable cases in which at least one party is legally aided, in order to reduce the issues in dispute and therefore the amount of legal aid that is required to resolve those cases. However, in a context in which it may be contestable whether particular cases are suitable for mediation, and whether particular mediators are suitable, the effects of the board’s policy will require close monitoring. That monitoring of the effects of the policy on the limited range of cases in which legally aided parties are now being encouraged to consider mediation will, of course, inform the answers to be given to the questions identified in para 937 as being candidates for further study.

945 While objections can be raised to the Legal Services Board’s initiative, there are also arguments in support of it. Those arguments would be strengthened if further efforts were made to inject consistency into the various subcommittees’ determinations about the suitability of particular cases for mediation and the skills required by mediators in different types of cases. But that is a difficult task, because mediation in those types of cases has been little used since 1996. (See, for example, Justice and Law Reform Committee, 1997) The board has plainly chosen to take the risk of learning how to assist subcommittees by monitoring their performance in a relatively uncharted territory, rather than continuing to watch legally aided clients and their lawyers exercise complete freedom to choose or reject mediation as a suitable dispute resolution process. In those circumstances, if the effects of its policy are closely monitored (with particular attention to the differences between New Zealanders, and between litigation of different types), the board’s initiative could be regarded as establishing a pilot project in an area which may well hold promise for promoting the just treatment of women by the justice system.

The availability and use of sanctions in the Family Court

“The woman is unaware that her partner has taken this action. All of a sudden her status as a mother is put into question and she has to defend the accusations. But she doesn’t know this is happening until she gets the notice from the court or whoever. It’s totally unfair.” – Transcript of hui with Mäori women, Rohe 7

“That’s where the courts should have stood there and said ‘You know he’s obviously being a pig about it. It’s obvious that he is saying no to everything. We will make rulings and you have to abide by them mister’.” – Submission 65

946 On the basis of the information gathered in this study, there are two reforms to Family Court procedures which could be implemented by statutory amendment after a far less intensive process of consultation and research than would be involved in examining the questions outlined in the preceding section.

947 The first concerns the inability of Family Court judges to stay, for specified periods of time, repeat applications for orders under the Guardianship Act (relating to custody or access) which the court considers to be groundless. This matter was the subject of attention by the Boshier committee (see Boshier et al 1993, chapter 6, especially 65–66 and 74–78), but its recommendations in this regard have not been adopted. In brief, the committee recommended that:

• the law should be clarified to restrict the ability of an applicant to apply on successive occasions for orders pursuant to sections 11, 15 and 17 of the Guardianship Act 1968 and to provide that such applications may only be brought upon leave being obtained from a Family Court judge; and

• if, after assessing a repeat application, the Court considers no reasonable grounds are disclosed for the bringing of it, leave should be refused, with a right of appeal to the High Court.

948 Extending the Family Court’s powers as the report recommended would appear to be an effective response to the concerns women raised about the expense and upset caused by abuse of the right to apply for orders relating to custody and access “from time to time”.

949 The second matter concerns the Family Court’s limited powers to impose sanctions on parties who fail to comply with its orders; and, in particular, its inability to punish for contempt of its procedures conduct which occurs outside the courtroom. This limitation arises from the fact that the court, being a division of the District Court, lacks inherent jurisdiction to compel compliance with its procedures. Again on the basis of the information provided by those consulted in this study, it would appear to be particularly necessary for the Family Court, of all courts, to be empowered to punish for contempt parties whose conduct plainly flouts its orders.

950 There are, however, larger questions about the Family Court’s use of sanctions which do not appear to be amenable to such rapidly achievable “cures”. In particular, two sets of circumstances impede the court’s ability to prevent unnecessary costs from being incurred and to make orders to redress the inequitable effects suffered by some parties. They arise from:

• the difficulties which the court can face in establishing the cause of breaches of its procedures with sufficient certainty to support the imposition of sanctions; and

• its lack of control over the conduct of attempted negotiations before proceedings are filed.

951 The consultation paper Lawyers’ Costs in Family Law Disputes highlighted criticisms of the court’s practice in awarding costs in circumstances where, in the clear view of opposing lawyers and clients, the other parties and/or their lawyers had caused unreasonable delays and added costs. Since the publication of that paper, the Principal Family Court Judge has advised that the range of issues to be considered by judges in connection with the award of costs is being addressed by means of a judicial education programme. It is considered that this is an appropriate response, at least in the shorter term, especially if the changes which may be expected in the court’s practices are well publicised to the profession and to clients. The effects of that response should, however, be closely monitored.

952 Granted that the Family Court can have difficulty establishing the causes of delays in proceedings, one element of the Legal Services Board’s instructions to district subcommittees can be expected to pose considerable difficulties in that regard too. The instructions state that the board would generally expect a discretionary charge to be imposed (at least in part) where:

The attitude and conduct of the aided person was such that the length of the litigation was prolonged both significantly and unnecessarily. (Civil Legal Aid Charges Instructions, 1999, 5)

As with a number of other elements of the new instructions, it may be argued that the board’s need to ensure as much consistency and equity as is possible among different subcommittees’ decisions is effectively compelling subcommittees to assume a role that they are not well equipped to perform. The availability of appeals from their decisions guarantees that subcommittees will be cautious in exercising their discretions in these areas. However, it leaves open the question of whether there is a more reliable way of assessing whether legally aided parties’ conduct is the cause of undue litigation.

953 Greater attention by the Family Court to costs practices will not assist in addressing the causes of undue expense incurred to parties through futile attempts to settle disputes before proceedings are commenced. This study has gathered evidence of such situations, the most dramatic example of which was quoted in Lawyers’ Costs in Family Law Disputes. It is repeated here to illustrate the point. The two quotations set out below are taken from letters written one year apart by a client to her lawyer. The result of the litigation was that the client was awarded by the court the amount she had originally proposed by way of settlement.

“I suggested that a final ‘take it or leave it’ offer . . . be made and that failure to accept it ought to close the door to further negotiations and precipitate litigation. My chief concern was a very real fear of winning a Pyrrhic victory. Since then . . . I believe that you have – no doubt in good faith – been pursuing the settlement avenue with [the opposing lawyer] and his client long past the point when such a course, given the clear lack of good faith on their part, ought to have been abandoned. As a client I have of course to rely on the good judgment of my legal representatives. In this case I believe you erred, with all due respect.  . . .”

[One year later] “This letter is to advise you that I have no further need of your services. With the court case finally over I am taking stock of the costs to me in financial terms. At this point I can show legal fees and court costs of $73 760.89 which, I hope you will agree, is astounding, given the straightforwardness of the issues involved and the final award of $84 947.30. I have to say that I am devastated by the whole experience and my attitude toward the justice system is extremely negative, to say the least.” – Submission 507

954 That client was not legally aided. However, related to this issue is the fact that the new instructions issued by the Legal Services Board, effective from 1 May 1999, contain financial incentives for legally aided parties to settle disputes, and disincentives for refusing unreasonably to settle. Like the new instructions about legally aided parties’ approach to mediation (see para 942), it is stated that the board would generally expect a discretionary charge to be imposed by a district subcommittee (at least in part) where:

The aided person refused a reasonable settlement offer and the case proceeded to an adjudication, the outcome of which was not significantly better than that of the proposed outcome.

Conversely, the board would not expect a discretionary charge to be imposed where:

The other party refused a reasonable settlement offered by the aided party and did not achieve, in an adjudication, an outcome that was significantly better than that offered in settlement. (Civil Legal Aid Charges Instructions, 1999, 5–6)

955 It would appear desirable for research to be designed to investigate the extent to which, and why, lengthy delays occur after lawyers are engaged but before proceedings are commenced, especially (but not only) when those proceedings then prove to require considerable attention from the Family Court. If it is known to be problematic that delays are occurring and legal costs are mounting at that stage, when the Court cannot exert influence over the situation, an argument can be made for more effective and efficient early “diagnoses” of the suitability of individual cases for judicial or other dispute resolution processes. Such research would, therefore, be relevant to the inquiry into whether greater use should be made of non-litigious methods of family dispute resolution.

areas of the substantive law

956 It is plain from this study that two areas of substantive law, one specific and one more general, are of particular concern to many women, and will continue to blight their opinions of and experiences with the justice system for as long as their criticisms remain unmet.

Property division on marriage or de facto relationship breakdown

957 The more specific area is the law regulating property division on marriage or de facto relationship breakdown. Correspondence during the latter stages of this study from various women’s groups and individual women strongly suggests that the reforms that have now been introduced in Parliament do not meet the widespread criticism that the law does not produce equitable outcomes between women and men who suffer failed marriages or other domestic relationships. This study did not focus on that area of law for the reason that reform was already anticipated, under the leadership of the Ministry of Justice, at the time its boundaries were defined. The criticisms made in the consultation programme were, however, passed on to that Ministry.

958 Very often, the criticisms made of the inequity between women and men of the social and economic outcomes of the law’s approach to property division between ex-partners were bound up with criticisms of the kind outlined earlier in this chapter: of the compounding effects of protracted processes of family dispute resolution. This confirms the vital importance of processes in any consideration of how to promote the just treatment of women by the justice system. It seems plain that continuing public concern about the inequity of the substantive law governing property division on relationship breakdown would be ameliorated by action, of the kinds suggested earlier, directed at improving the processes of family dispute resolution.

Law reform to implement anti-discrimination commitments

959 In the meetings with groups of New Zealand women identified by their minority ethnicity, lesbianism or disability, there was considerable concern about the fitness of particular substantive laws for giving practical effect to their human rights. The following examples are from the Report on the Consultation with Lesbians.

“. . . when straight people get married they accumulate . . . distinct additional rights as part of getting married, you know property and next of kin stuff and some are really small but they build up. The thing that bugs me is that I have to choose each one of those and go and get a lawyer to draw up the legal documents each time.” (7)

“It’s like there’s no rules for us – we always have to fit ourselves into the het world. Hets can have this fantasy of the happy ever after because if it all falls over there’s something there for them. There’s nothing for us.” (19)

“It’s erratic . . . like in some hospitals you can go in and say I am the next of kin and they’ll accept it, but you can’t rely on it. People are relying on the hospital to be lesbian friendly, but it’s not as good as having the right to nominate who the next of kin should be.” (20)

“The definitions of family in the law are really insufficient. They are insufficient for whanau and for lesbians and gay families.” (22)

“Me and my partner’s issue is that I’m trying to get residency here and we’re going into partnership and there’s discrimination there because we have to be fours years in a relationship where a heterosexual couple if they are married can apply to get it right away and [for] de factos it’s two years. It’s been very hard on us because we have to travel back and forth and we’re in debt and it’s been very hard on us as a family.”(25)

“I went to a lawyer regarding a will and property and stuff and I had to go through the process with her trying to establish was I in a ‘real’ relationship, you know “how long have you been together?” and that was awful, you know like she was saying “is this really a relationship?” and I was having to pay for this time to educate my lawyer.” (43)

“My separation was three years of legal wrangling, you know, people saying because I was a lesbian I couldn’t see my kids. I was told on the one hand it’s not relevant but on the other hand I couldn’t have my partner to stay if the kids were there and I couldn’t hug her or be affectionate and if I didn’t consent I didn’t get to see the kids. Nobody asked him what sort of sex he was having . . .” (32)

“I want to know how to sue a school. Legally I reckon we could take a school to the cleaners for harassing young lesbians. We’ve got a situation at the moment where legally, under the Human Rights Act, you know, and the Ministry of Education guidelines, I reckon we could do this school, but it’s trying to find the money and someone who would be prepared to take it on.” (27)

960 More generally, women considered that the mechanisms on which the justice system relies for monitoring and reviewing the effects of substantive law on women are insufficiently proactive. It was noted in chapter 6 that one function that community law centres are uniquely well placed to perform is to identify systemic bias, in the laws and procedures of the justice system, against people who make up communities of interest. That is a public-interest function which many other jurisdictions promote by means of public-interest litigation schemes that are more developed than is the case in New Zealand.

Facilitating public-interest litigation

961 During this study, information was gathered about the public-interest litigation processes employed in New Zealand, Australia, Canada and the United States. Public-interest litigation is well established in those other jurisdictions, in part because the courts there have power to strike down legislation that is inconsistent with the constitutions of those nations. Specialised funding schemes have developed, as well as schemes which rely on the discounted or free representation services of lawyers, so that groups whose constitutional rights may be threatened by statute can afford to be heard in cases in which the validity or the interpretation of legislation is in issue.

962 New Zealand courts do not have the power to strike down legislation, but there is still a need for them to receive arguments focused on the wider public interest in the issues raised by particular cases (see Richardson, 1995, 11). The most obvious example is where the interpretation of legislation is in question and arguments which detail the effects of possible interpretations on groups protected by the Bill of Rights and Human Rights Acts may not otherwise be made.

963 In that regard, it is notable that the civil justice reform package being introduced in England and Wales prioritises three categories of cases for state-funded legal representation. For information, all three are set out here, but it is the third category of case which is relevant:

• social welfare cases, which help people to avoid, or climb out of, social exclusion; for example, cases about people’s basic entitlements, like a roof over their heads and the correct social security benefits.

• other cases of fundamental importance to the people affected. This covers cases involving major issues in children’s lives (like care and adoption proceedings); and cases concerned with protecting people from violence.

• cases involving a wider public interest. This category includes two types of case: those likely to produce real benefits for a significant number of other people, or which raise an important new legal issue; and those challenging the actions, or failure to act, of public bodies (including cases under the Human Rights Act) or alleging that public servants have abused their position or power. (Modernising Justice, 28)

964 The information gathered in this study reveals that there is considerable uncertainty in New Zealand about both the grounds for appointment and the funding of counsel (amici curiae or friends of court) to present arguments focused on the public interest in particular cases. In light of the strong call by women generally, and by particular groups of women, for the promotion of means by which their human rights can be better protected by law, it is considered that part of the required response is the development of clear and well-publicised guidelines for the use and funding of counsel to assist New Zealand courts in cases which raise public-interest issues.

Recommendations

965 From the discussion so far in the chapter, it is recommended that the Ministers of Justice, Courts and Women’s Affairs consider:

• commissioning research which employs gender analysis to determine whether, and if so how, the justice system can promote the just treatment of women by an increased emphasis in family dispute resolution processes on non-judicial methods of dispute resolution conducted by suitably trained and skilled professionals;

• amending the Guardianship Act to empower the Family Court to stay repeat applications for custody and access which the court considers to be groundless;

• increasing, by statutory change, the Family Court’s power to punish for contempt of its procedures; and

• authorising the development of clear and well-publicised guidelines for the use and funding of counsel to assist New Zealand courts in cases which raise public-interest issues.

Conclusion and final recommendation

966 The focus of this study has been on New Zealand women’s access to the legal information, advice and representation services which are needed to invoke the protection of the law. The results demonstrate that women experience substantial barriers in their efforts to obtain legal services responsive to their needs. Some of the barriers arise because, as women in a society in which gender counts (and as is reflected in such matters as employment levels, employment status, caregiving responsibilities, income levels and subjection to violence), they are unable to find services which take due account of those facts. Other barriers arise because women are diverse in their circumstances and needs (in such matters as their ethnic backgrounds and cultural values, languages, geographic location, disabilities and sexuality), yet the legal services on offer to the public do not take due account of those facts. Accordingly, the study provides insights to the nature of the barriers to legal services which may be experienced by New Zealanders from the full range of groups that make up our society.

967 From all the work undertaken in this study, a set of six principles has been distilled to guide policy makers and lawmakers in their efforts to promote the just treatment of women by the justice system. They are the principles of:

• Diversity – diverse responses must be made to meet the diversity of needs;

• User focus – services must be responsive to users’ needs;

• Informed participation – users of the justice system must be kept informed about the application of the system to their circumstances;

• Community participation – the laws, procedures and services of the justice system must be developed with community involvement;

• Co-ordination – the range of justice system services must be co-ordinated; and

• Accountability – justice system procedures and services must be regularly monitored, evaluated and reviewed.

968 A statement of principles is of limited value unless the means and the manner by which those principles can be given practical effect are transparent. Therefore, the process for their application is of critical importance in achieving the desired outcome. The process of gender analysis identified by this study flows directly from the principle of accountability. Each of its four component parts is essential if the principles are to be brought to bear in such a way as to achieve the outcome of women’s just treatment by the justice system. The process involves:

• the use of an analysis which recognises, in the identification and definition of problems, the differences between the lives of women and men, and among the lives of different groups of women and men;

• appropriate consultation throughout the process of policy development with women, community groups and other relevant organisations;

• the development of proposals designed to meet the problems identified and the diverse needs of women, the outcomes of which are measurable; and

• the creation of systems to monitor, evaluate and review the effectiveness of policies and laws in meeting the diverse needs of women.

969 Throughout this study, the six principles and the process of gender analysis have been brought to bear in the examination of women’s access to legal services and in the recommendations that have been made. The terms of reference for the study make plain that the principles and the process should be employed in all future examinations of the justice system. Accordingly, it is recommended that:

• to ensure the just treatment of women is promoted by the justice system, all future studies of its operations be conducted in the light of the six principles and by means of the four-part process identified by this study.