The 2014 Family Court reforms fundamentally changed the ways that separated couples gain access to the family justice system. Now, Law Foundation funding has enabled the first comprehensive study of how well the reforms are working.
Funded by the Law Foundation, an Otago University Law Faculty research team has started a two-year, $400,000 study of parents and practitioners’ experiences of post-separation family resolution. Research team leader and Law Dean Professor Mark Henaghan says that based on anecdotal feedback, the new process is not working well. This research intends to find out the actual story.
“There’s a lot of confusion about what the family dispute resolution process is about,” he says. “The numbers going into family dispute resolution are nowhere near as high as what was expected.”
Also, he says, the court application process has become distorted, with an 87% increase in applications without notice.
“Tactically what’s happened is that there is an incentive to do this because people don’t want to go into any court process without a lawyer,” he says.
“The normal process was designed to be without a lawyer, but people are clearly very anxious about that. Even if it’s not a matter of urgency, people still feel vulnerable when going into discussions about their children.”
Professor Henaghan says it’s important to fully understand why people are using the process in unintended ways, and the consequences in terms of the sustainability of agreed separation arrangements.
“We haven’t had a lot of positive feedback from the professionals, but we now need to hear from the clients. We left it for two years to give it time to settle in. The main emphasis will be on how it’s working from the client point of view.”
He says the Justice Ministry strongly supports the research. It has done a small pilot study, but does not have the capacity to do a large scale, long-term study.
Under the Foundation’s Memorandum of Understanding with the ministry, this project will also receive support from the ministry to provide access to information necessary to assist the research.
The team, which includes Associate Professor Nicola Taylor and researcher Megan Gollop of Otago’s Children’s Issues Centre, will conduct nationwide online surveys and interviews by telephone and face-to-face with parents who have separated since the reforms began in March 2014.
The researchers will question participants on the dispute resolution pathways they used, their children’s participation in decisions, their satisfaction with the stability of arrangements reached, and their experiences of the services and professionals they used. Researchers will also attempt to identify participants who have chosen not to engage with the new processes and find out why.
The project follows an initial scoping study also funded by the Law Foundation. The first phase included liaison with stakeholders and experts to help establish research priorities.
“There is tremendous support for this in the profession, including from judges,” Professor Henaghan says. “Everyone is delighted with the research because they have concerns about how the reforms are working in practice.”
He says it’s crucially important that the impacts of major systemic reforms are comprehensively examined, especially given that the lives of children and families are at stake.
“We are extremely grateful and fortunate that the Law Foundation has agreed to support this research. Without the Law Foundation, a lot of these big changes would just pass by, and we would never properly understand their impacts.
“It’s not good enough really, when you are fundamentally changing systems like this,” Professor Henaghan says.
Lynda Hagen is the Executive Director of the New Zealand Law Foundation.