New Zealand’s family justice system had to change to meet the needs of 21st Century families, Justice Minister Amy Adams says. A Ministry of Justice review of family justice in 2011 found court processes were complex, uncertain and too slow. There was a lack of focus on children and vulnerable people, and not enough support to assist parties to resolve parenting and relationship issues out-of-court.
“Our reforms have worked to deliver a more modern, accessible family justice system that encourages parents to reach out-of-court agreements about arrangements for the care of their children,” Ms Adams says.
With an “out-of-court” focus in mind, the ministry created a new website with more plain English information on family justice matters and introduced a new 0800 helpline (0800 2 AGREE, or 0800 224 733).
The Parenting Through Separation Course (PTS), which is free and helps people understand children’s needs throughout and after the separation process, has been enhanced and expanded. The course is compulsory for those wanting to apply to the court who have failed to reach an agreement, unless an exemption exists. If risk factors are involved cases go through the “without notice” process.
Family Dispute Resolution (FDR)
FDR providers first assess the parties’ readiness for mediation to determine whether it is appropriate. Exemptions may apply if participation wouldn’t be appropriate. The FDR provider might suggest preparatory counselling before mediation. For those participants who are eligible for government funding (an estimated 60% of participants) their share of Family Dispute Resolution is fully funded by the government. Those participants who are not eligible for full funding can access the Family Dispute Resolution service for no more than $897 (GST inclusive) from government providers.
Legal support in out-of-court space
Those wanting independent advice outside of court are encouraged to see a lawyer, at their own cost. Some government-funded legal advice is provided by the Family Legal Advice Service to help families understand the legal aspects of settling a dispute about caring for children, and help fill out Family Court forms. This support can be provided before going to FDR.
Government funding is available for all out of court services such as FDR, preparatory counselling for FDR [WS7] and legal support. Funding can be applied for via FDR providers or a lawyer. Eligibility tests for funding with income thresholds apply.
Those subject to urgent or high-risk situations automatically go through a “without notice” track where lawyers have the ability to file documents. The “simple” and “standard” tracks otherwise apply where parties have to file applications for themselves. Parties can access information via the Ministry of Justice website for assistance [WR9], they can call 0800 2 AGREE, or 0800 COURTS, or the FC counter or a FLAS provider.
The “simple track” is reserved for self-represented people who have reached agreement and want a consent order made or where there are undefended proceedings. Cases are dealt on the papers by a judge with plain English questionnaire-style affidavits.
For those unable to reach agreement outside of court, the “standard track” process applies in court where, in most cases, those applying will have attended PTS and participated in FDR services. Judges have the ability to direct people to an issues conference where they self-litigate, or to a settlements conference where they can self-litigate or be legally represented if the judge allows. In the latter option, parties can apply for legal aid. A judge can order specialist reports or appoint a lawyer for child at this stage of the process. Once there’s a formal hearing, both parties are entitled to legal representation and can apply for legal aid.
This track applies if there are risk factors, urgent situations, or if there’s concern for the safety of children [WS10] or a parent. A judge can move the case from the “standard” to the “without notice” track. A lawyer, lawyer for child and legal aid are available. A judge also has the ability to refer people back to PTS or FDR.
A cost contribution order can be made by a judge. The judge must consider some of the cost of services including specialist reports, appointment of lawyer for child or lawyer to assist the court. Parties may be ordered to pay their share or a proportion of two-thirds of the cost. The crown will pay one third.