Review of the 2014 Family Justice Reforms
Why the need to fix the in Court part of the reforms should not mean wholesale change for the out of Court Family Dispute Resolution service
Written by Keri Morris
Recently, the Honourable Andrew Little announced the membership of Expert Reference Group to support the Independent Panel examining the 2014 family justice reforms. The focus seems to be on the difficulty for parents in accessing legal advice and support at the point of separation. The 2014 reform removed the ability of parents to have lawyers prepare their court application and represent them at the earliest stage of the proceedings. The result has been a significant increase in the number of without notice applications filed in Court, leading to long delays for participants. Because of this the Court now has a growing backlog of cases requiring the intervention of a judge.
It is unfortunate that the conversation about the difficulties parents experience in getting their cases to and heard by the Family Court is being extended to criticism of the Family Dispute Resolution (FDR) service which came in at the same time. We encourage the Panel to look at the history of efforts made to enable parents to access an out of Court mediation service, how the FDR system is currently providing benefits for children and parents and its capacity to provide service for more families thereby relieving pressure on the Family Court. It is also hoped that the Panel will remove some of the artificial barriers that were created by the complete separation of the in Court and out of Court parts of the Family Justice system.
But first some statistics. Since the government reforms in 2014, 11,575 mediations have been completed and the success rate for parents reaching agreement on some or all matters stands at 83%.Some parents seek exemption from attendance at FDR. Sometimes exemptions are issued because the case is not suitable for mediation due to the circumstances of the parties or the situation. Other exemptions are issued when the other parent declines to participate in FDR.
One of the major benefits of the out of Court system is that there are no delays for parties who want to attend Family Dispute Resolution. This is in stark comparison to the current nine-month long delay for non-urgent Court applications. In the government funded space, FairWay is a nationwide supplier of FDR on behalf of the Ministry of Justice. A parent who wants to attend mediation through FairWay can either complete an online application or ring an 0800 number. The online application or call is responded to by an experienced Resolution Coordinator who assists the parent through to navigate the process. Usually this means the Resolution Coordinator contacts the other parent and engages them in a conversation about attending FDR. They also do an excellent job of encouraging both parents to get information about FDR and attend a Parenting through Separation course.
Parents can access legal advice through their own lawyer or the Family Legal Advice Service (FLAS), and may also attend Preparation for Mediation (PFM). Both FLAS and PFM are available for delivery to parents in their own homes over the phone or through the use of video conferencing. This benefits many parents as it can be arranged to fit with work and child care commitments and does away with the inconveniences of attending a face to face appointment such as arranging time off work, childcare needs and transport costs. Since 1 July, PFM is available to all parties – not just those eligible for a government funded service.
Another major benefit is the opportunity for parents to develop the tools needed for future care of child discussions. Although the parents may separate, they will continue to be in each other’s lives and need to make decisions together for many years. After the care arrangements have been agreed, there will be many more decisions to made by over the years. Through the FDR and PFM process, parents can learn how to have constructive conversations and develop skills to work through decisions for the sake of their child or children. The value of this cannot be overstated. Not only is it best for the children and family to be able to communicate constructively, it saves the Court and caregivers the stress, time and costs of repeat Court orders.
As can be seen above, there is a lot of support for parents going through FDR. Lawyers may also attend FDR on the basis that the parties agree and are willing to pay for their time. If a case is referred back to FDR from the Family Court, a Judge may make a direction that legal aid pay the cost of the parties having lawyers present at FDR and may also direct the attendance of a lawyer to represent the children. Parties can also access a further 12 hours of FDR in a 12 month period if they are judge directed.
Parents have been encouraged to make decisions about their children, even after court proceedings were filed, since the inception of the Family Court. Under the Oranga Tamariki Act, since 1989 parents have attended Family Group Conferences which have the express purpose of giving parents and extended family/whānau the responsibility for addressing concerns about the care of children. It is most unusual for lawyers, other than the lawyer appointed to represent the child or children, to attend these conferences. The purpose is to minimise the intervention required by the State in the lives of families. An application cannot be made to the Court for orders under this Act (except in cases of extreme concern) unless there has been a Family Group Conference.
In 2003, the Law Commission prepared a comprehensive report in respect of Dispute Resolution in the Family Court. One of the recommendations was the establishment of conciliation services which were to be an integral part of the Family Court. A mediation pilot was established in a number of Courts with varying success. The most successful of these was found in the Christchurch Family Court which has consistently had mediation undertaken by professionally accredited mediators since that time. Hopes for a fully funded out of Court mediation service were dashed when the global financial crisis meant that the service proposed in 2008 did not eventuate.
Former Chief Family Court Judge Peter Boshier, who was concerned about delays in the Court, introduced two innovative measures. The first, parenting hearings where the parties were encouraged to talk to each other during a hearing at which the Judge used an inquisitorial approach and secondly lawyer led mediation. The latter became known as the EIP service and used lawyers who were accredited as lawyer for child and with mediation training. The problem with that service was that the two parents who needed to talk with each other about the care of their children did so in the presence of four lawyers, who often were all funded by the State. It was the cost of this, together with increased cost of lawyer for child (where in some instances a child might even have two lawyers appointed to represent them, one for their interests and the other as an advocate), the cost of specialist report writers and the increasing use of the Court by parents to manage separation and care arrangements for their children.
What we can see from these examples is that the use of mediation in family disputes is proven. In fact, there are further opportunities to use FDR and the use of mediation across the Family Justice system. The fact that parents have been prevented from having the assistance of lawyers at time they need good quality legal advice and support has caused delays and increased the workload of Court registry staff and Judges. This is an access to justice issue which needs attention. It would be unfortunate if the review suggested the dismantling of the Family Dispute Resolution service which is working well and has the capacity to work for many more people, thereby helping reduce the backlog issues currently facing the Family Court. Encouraging parents to move through the initial conflict and find an enduring way to manage decision making about their children is preferable to a long wait for a one-off decision.
 Statistics from the Ministry of Justice for the period of July 2014 – June 2018.