27 Mar 2017

Families not turning up to dispute resolution

7:19 am on 27 March 2017

Radical changes to the Family Court to get warring couples into mediation appear to be faltering, with large numbers granted exemptions simply because they don't want to go.

Wellington Family Court and mediation room.

80 percent of cases deemed unsuitable for the family dispute resolution service were because one party did not want to participate. Photo: RNZ / Alexander Robertson

The Family Dispute Resolution Service (FDR) was supposed to help estranged parents avoid the courtroom and reach agreement, with the help of a mediator, on things like custody arrangements and extra curricula activities.

But the Ministry of Justice has conceded fewer people than it expected are turning up, and lawyers, mediators and law lecturers agree large numbers are avoiding the service.

Launched in 2014, the changes to the family court put the onus on parents, rather than the state, to resolve disputes over their children.

But some parents complained of feeling pressured to reach agreements and said there was not enough time to resolve disputes.

In December, the number of mediation hours was extended from eight to 12 over a year.

The head of the Arbitrators' and Mediators' Institute, Deborah Hart, said the changes did help, but problems remained.

The extra hours were also supposed to include the child's views - something required under the United Nations Convention on the Rights of the Child.

Article 12 of the Convention, which New Zealand ratified in 1993, said the point of view of a child who was capable of forming his or her own views must be given due weight, and the child should be given the opportunity to be heard in any judicial and administrative proceedings that affect them.

Ms Hart said many mediators were grappling to do this in the 12 hours.

"Sometimes in these cases, mediators are using the funding and they're able to do it within the pot of money that's there. But sometimes it's very, very difficult and we're getting a lot of feedback from mediators that they find it very difficult."

The chair of the Law Society's family law section, Michelle Duggan, said the number of hours was never the main issue.

"More hours is great and it means that parents can have, say, two meetings with the mediator - great. But, it doesn't address the fundamental with FDR that lots of people can't go or don't want to go, or can't afford to go," she said.

Couples were expected to complete mediation before they could file papers with the Family Court, except in cases involving violence.

Figures released by the Ministry showed in the two years since the reforms were introduced, 5200 cases were assessed for mediation, almost 3000 were assessed as suitable and of those 2560 proceeded to the resolution service.

But 2238 cases - 48 percent of the total - were exempted as unsuitable for the resolution service. For 80 percent of those the reason was because one party didn't want to participate.

Cost a barrier

For families on low incomes the service is free, but otherwise parents have to pay about $450 each. The Ministry of Justice planned to pilot a scheme in which it paid for for the unfunded party, but has put that on hold because it needed to do more work on why people were not attending.

University of Otago Dean of Law Professor Mark Henaghan said cost was obviously a barrier.

"When relationships break the cost, not only emotionally, but financially, is massive.

"You've suddenly got two households to look after, you've got kids travelling back and forwards between households. It's a massive cost. Any added costs can be the last straw."

Last financial year the ministry it budgeted $5.8 million on the service but spent $4.7 million - an underspend of 20 percent.

Ms Hart said the ministry should be trying to work out why people were not engaging with the system.

"Everyone knows, the ministry included, that there's a lot of cases which have literally disappeared. They're not in the court system, they're not in FDR. Unless there's been an outbreak of world peace, you'd have to wonder what's happened to all of those cases," she said.

The ministry is reviewing the impact of the reforms and is scheduled to complete this work by the end of the year.

In the meantime, mediators have been asked to record why people are refusing to participate and report their findings to the ministry by the end of May.