1 May 2018

Report shows Family Court systems are failing

11:45 am on 1 May 2018

Family Court staff are stressed and struggling to deal with a growing workload, family lawyers are quitting and parents can't get decent legal advice.

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Photo: RNZ

A new report commissioned by the Ministry of Justice backs up the critics have been saying for years that the system doesn't work.

The reforms, which were introduced in 2014, were designed to produce a more efficient and effective system that was responsive to children and vulnerable people.

Parents in dispute over things like access to children and shared care were encouraged to resolve the problems themselves without having to go to court which can be adversarial and costly.

But new documents released on the Ministry of Justice website show the reforms have largely failed.

Family Dispute Resolution Service

Warring couples were encouraged to seek mediation through what is known as the Family Dispute Resolution (FDR) service, which allowed parents to work with an independent mediator to reach agreement on care arrangements for their children. FDR was free for those who are eligible for legal aid, but for those who aren't eligible there's a fee of $448.50 for two sessions of mediation of up to five hours each.

In the 12 months from July 2016 there were 1561 disputes which reached a mediation. But during the same timeframe almost as many couples (1,542) were exempted from going to FDR.

The Ministry of Justice asked the 3 FDR services why people didn't want to participate. They found;

  • 40% of people refused to engage because they simply didn't want to be part of the process.
  • Almost a quarter (23%) of people couldn't be reached to take part in FDR.
  • Cost was the third most common reason for non-participation (14%).

Without Notice Applications

Under the changes, lawyers were removed from the process in all but urgent cases.

These are known as a 'without notice' or 'urgent' application and usually involve allegations of violence or abuse. They are heard by a judge who needs to see only one side of the case.

The research found that before the reforms 70 percent of cases were non-urgent with the remaining 30 percent urgent but that had now reversed.

It identified 3 key reasons for filing without notice applications:

  • A desire for legal representation
  • Urgent and time-sensitive issues
  • To initiate action towards a decision

It found people wanted a lawyer because they didn't have the necessary skills and knowledge to complete the court documents to a high standard.

"The law, the Courts, lawyers, judges and how it all fits together, how it all works, and then you have the legal terminology - orders, directions, conferences. You hear it, or you read it, and you understand it (at) one level, but you don't really comprehend it, and you don't really know what it means. It's complex and a little overwhelming to be truthful," one applicant told researchers.

Those whose cases weren't deemed urgent had to represent themselves, which meant cases took longer and required the judges to "hand hold" parties through the court proceedings.

Court staff also complained of having to walk a fine line between providing information and giving legal advice, which is against the law.

Increased workload

The research also found the increase in urgent applications had also had an impact on family court staff, their workload, stress levels and job satisfaction.

Court staff in Christchurch and Wellington currently manage between 110 and 130 case files each, with files representing a family and may involve care of children, domestic violence, adoption and/or property matters.

When a without notice application is filed, staff responded immediately, often at the expense of non urgent cases. Court staff told researchers urgent applications took up to 2 hours to process and there are 4-5 applications per day. As a result staff said they were struggling to meet their caseloads and were having to work outside their regular hours to try and keep up.

Fewer Family Court Lawyers

Parents, lawyers and judges told researchers of the trouble finding family court lawyers who were available and willing to represent them. It was suggested that the reforms, coupled with changes to the legal aid criteria had made it less attractive to lawyers and law firms.

"Based on what has been said by participants, there now appears to be fewer lawyers practising family law and now more difficulty for applicants to get legal advice. This apparent loss of experienced family law practitioners means that the quality of legal advice and representation that some applicants are receiving is now below par," the report found.

Change is on the way

Last month the Justice Minister Andrew Little announced the establishment of an expert panel and advisory group to review the reforms introduced under the previous government.

Mr Little is expected to announce the terms of reference in the coming weeks and the appointed advisors are excepted to report back early next year.

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