There have been a number of issues arising from the implementation of the new family justice system, the New Zealand Law Society’s Family Law Section (FLS) Chair, Dr Allan Cooke, says.
The FLS continues to meet regularly with Ministry of Justice officials to work through some of the more urgent issues that have arisen to see what might be done to resolve them. “I believe we have a positive working relationship with the ministry which is important in terms of finding solutions so the court can work more effectively,” he says.
Family Court forms
The new system introduced standard forms and affidavits, presumably to assist parties who were no longer allowed a lawyer to represent them to put adequate information about their case to the Court.
Dr Cooke says that the problems experienced with the new forms on the first day of the new system were significant. There were technical difficulties in accessing the forms. They were not provided in a word format so they could easily be populated and saved, were extremely long and contained unnecessary repetition.
They also did not comply with the legislation.
While the ministry undertook a review of the forms in December last year, the replacement form generator still has issues. It cannot be accessed by those who have Mac computers.
“While we understand the need for a standardised form for unrepresented parties, there is no need to require lawyers to use these forms,” he says. “Lawyers – by virtue of their professional training, qualifications and experience – can succinctly identify the orders sought and the relevant statutory grounds for those orders and present the relevant in compliance with the Evidence Act 2006.
“It is disappointing that the ministry has continued to require lawyers to use these forms, particularly when the judiciary are happy to have lawyers prepare and file documents in the format used prior to 31 March.”
Family Dispute Resolution (FDR) process
While the FLS supports mediation for parents wanting to sort out their parenting disputes, the FLS is particularly concerned about people wanting to engage in FDR who cannot afford the shared cost of $897 but do not qualify for state funding nor fit within the categories to be exempted. Until they complete FDR they are unable to access the Family Court.
“This is of concern,” says Dr Cooke, “particularly because these parties want to sort out their dispute but cannot afford to do so and are unable to access the Family Court.”
The FLS has suggested the ministry pilot free FDR in one or two regions to see if it increases FDR participation but as yet have received no response on this suggestion. “The ministry has advised us they are working on ways to ‘incentivise parties to participate in FDR’,” says Dr Cooke.
He says that the numbers of FDR mediations completed or exempted (782 completed, with 710 exemptions to the end of January 2015) since FDR was introduced is alarmingly low compared with the volume of substantive applications for guardianship and parenting orders made to the Family Court in any one year (26,281 in the 2010/2011 financial year).
“We are significantly concerned about the ‘lost disputes’, considering that FDR is mandatory (unless there are situations of risk or urgency).”
Dr Cooke says the legislation did not provide for a lawyer for child or other advocate for children in the FDR process.
“We are concerned about how the child’s views are heard in FDR other than as articulated by the parties. FDR mediators have a statutory duty to assist the parties to reach an agreement that best serves the welfare and best interests of the child, however we question how they do this without independent information about the child,” he says.
In some regions, there are very few FDR providers and until 1 March 2015, FDR providers were not able to be paid for travel time or mileage to conduct a mediation outside their local area.
“This is a serious access to justice issue, considering the mandatory nature of FDR. We are pleased that the ministry has now agreed to pay travel time and mileage, but this has taken a year to achieve,” says Dr Cooke.
When agreement is reached at FDR, some parties want that agreement turned into a formal court order so it can be legally enforced if necessary. “There does not appear to be an easy or seamless interface between agreements made at FDR and parties wishing to apply for consent orders in the Family Court,” Dr Cooke says. “There have been a few instances where a judge has had to appoint a lawyer for child as there was not enough information in the FDR agreement to satisfy the judge that the agreement made was in the welfare and best interests of the child. We have also brought this to the attention of the ministry,” he says.
Without notice applications
An application can be made without notice if the court is satisfied that the delay that would be caused by making the application on notice might entail serious injury or undue hardship, or risk to the personal safety of the applicant, or any child of the applicant’s family or both.
There has been a significant increase in the number of “without notice” applications being made. Approximately 40% of these are being put on notice with the majority being kept on the “without notice” track, suggesting the matters are reasonably serious enough for judges to place on short notice and keep lawyers involved.
Dr Cooke says that this is particularly of significant concern to the judiciary and court staff in terms of resourcing e-duty.
We believe this problem has manifested because of the lack of ability under the new legislation to deal with ‘real life situations’. In any instance the delay caused by proceeding on notice could bring an applicant within the circumstances contemplated by r220, depending on the facts of the case. In addressing the narrative of the client, a lawyer will turn his or her mind to the requirements of the legislation and will be reminded that the rule specifies proceeding on a without notice basis is warranted where the delay caused by filing on notice might entail serious injury or undue hardship, or risk to the personal safety of the applicant, or any child of the applicant’s family or both, as opposed to any higher threshold, for example, should the rule read “delay will entail serious injury or undue hardship, or risk to the personal safety of the applicant, or any child of the applicant’s family or both”.
Dr Cooke says that under the old system, a lawyer would apply on notice for an abridgement of time to enable a matter that was “semi-urgent” to be heard by a judge within a number of days. Under the new system, parties themselves would have to apply on-notice for an abridgement of time because s 7A of the new legislation bans lawyers for acting for parties in these matters.
“Even if parties knew to apply on notice for an abridgement of time, they would need to complete FDR and a parenting information programme, which may take anywhere up to three months. This in itself makes the whole point of applying for an abridgement of time futile,” he said.
Auckland Court Registries
Family lawyers in Auckland continue to report ongoing and systemic problems since the centralisation of Auckland Family Court services took place in 2010. These include delays in the issuing of service documents and sealed orders, documents not being placed on the file in time for the hearing and significant delays in the court staff actioning judges’ directions in respect of appointing lawyer for child and specialists report writers. In addition, lawyers are now waiting weeks to get conference dates and months to have a matter allocated a date for a settlement conference.
Dr Cooke says the FLS has been working closely with the ministry on this issue for many years. “It is disappointing and frankly unacceptable, that four years on we are still seeing this level of service which impacts heavily on those who need the assistance of the Family Court,” he says.
Dr Cooke says that “while there have been times of improvement, we continue to experience significant problems. Of further concern is the fact we are now hearing of similar problems occurring in other registries outside of Auckland.”
Dr Cooke says that these issues materially impact on child’s welfare and safety and, in some cases, on the safety of parties.
“It is simply unacceptable that when a judge makes an urgent protection order on a ‘without notice’ application to protect a party and children who are at significant risk of harm, lawyers are sometimes having to wait two to three days to find out whether or not orders have been made and then waiting sometimes up to two weeks for the order to be made available for service,” he says.
There are also significant delays with “on notice” applications. One recent example received by the FLS from an Auckland family lawyer involved an application made by a mother to relocate in October 2014. The judge directed that a lawyer for child be appointed on 27 October, however the lawyer was only appointed on 27 February 2015.
“In this particular case, there had been allegations that the child was being inappropriately touched by a person in the father’s house and the child was still there,” says Dr Cooke. “You have to ask why it has taken four months for the court to carry out the judge’s direction.”
Dr Cooke says that the FLS is particularly concerned about the apparent lack of resourcing of judges and court staff to deal with the volume of cases.
“We understand case managers in Auckland are carrying around 220 cases each compared to about 150 in other regions. This has been happening for some time now. The significant delays in getting dates for judicial conferences and hearings are also of concern,” he says.