New Zealand Law Society

Navigation menu

Positive approach needed to fix Family Court problems

02 March 2016

A positive approach by all those involved is needed to fix major problems which have been identified with access to legal representation in the Family Court, New Zealand Law Society Family Law Section chair Allan Cooke says.

Commenting on reports that Principal Family Court Judge Laurence Ryan has noted an "astounding" increase in Family Court without notice applications, Dr Cooke says there are major problems with the system which have got to be fixed.

Judge Ryan told Radio New Zealand that since the Family Court reforms came into force two years ago there has been a dramatic change in without notice applications. Couples who are disputing custody of children may not have legal representation unless they file a without notice application.

Judge Ryan has said that as at the end of February 2016, 86% of Care of Children Act applications were commencing by way of a without notice application. Before the Family Court changes, the rate was slightly below 50%.

Dr Cooke says a recent report released by the Ministry of Justice, Evaluation of Family Dispute Resolution Service and Mandatory Self-representation, found that most of the parents who were interviewed did not want to represent themselves in the Family Court and found it difficult to do so.

"The Law Society spent much time two years ago pointing to the major problems which would arise from the proposed Family Court reforms. These are now showing and having a terrible impact on people who are in the system.

"However, we can't sit around and just say 'I told you so'. We've all got to be part of the solution. The Family Law Section has said all along that cost savings and process improvements can be made in ways other than depriving vulnerable people of legal representation."

Dr Cooke says the cumulative impact of the Family Court changes has been to create a more complex system with its various rules and tracks, rather than the simplified system which everyone wanted.

"We're one of the few countries in the world which has actually legislated lawyers out of its family courts and processes. And we've ended up with a system which looks more like a map of the London Underground than a clear path to resolution of the disputes and problems families encounter."

Keeping counselling and mediation to help parents resolve their disputes is vital, he says.

"However, they can be greatly improved and a strong and effective system put in place. The mediation under the old system was hugely successful.

"Let's put in place legal or administrative mechanisms for ensuring the voices of children are heard in our system. The mediators are expected to get outcomes that are in the welfare and best interests of children, but the out of court system does not define what that is, and there is no direct relationship with the Care of Children Act where the test is found.

"The mandatory forms used need major improvement. They're not fit for purpose at the moment and judges are accepting a mixture of prescribed forms and the old affidavits from lawyers. We agree that prescribed forms are necessary for those who are not legally represented, however lawyers should be able to file in the format used before the reforms.

"It's becoming very clear that New Zealanders need some guaranteed degree of legal representation in our Family Courts. This can be achieved by a forward-looking approach and collaboration across all the parties involved, all driven by a commitment to ensuring access to justice."

Last updated on the 16th September 2019