On 31 March 2014 some major changes to the family justice system came into force. They were the culmination of an intense period of debate around the country. This started with the introduction of the Family Court Proceedings Bill by then Justice Minister Judith Collins to Parliament on 27 November 2012.

“The Family Court Proceedings Reform Bill will create a modern, accessible family justice system that is more focused on the needs of children and vulnerable people,” Acting Justice Minister Chester Borrows began in moving the first reading of the bill on 4 December 2012. “The changes in the bill respond to widespread concerns that the court is not able to focus enough on the most serious cases, has processes that are difficult to understand, and has seen its costs greatly increase in recent years.”

The proposals for reform were often polarising. From the perspective of the legal profession there was a major disruptor in the removal of parties’ rights to be legally represented in all matters concerning parenting and guardianship disputes, as well as the removal of legal aid, with the exception of without notice applications.

While acknowledging some positive changes to the resolution process for family disputes and the streamlining of court processes, the New Zealand Law Society highlighted its concern at two fundamental reforms. These were the restriction on the right to legal representation in care of children proceedings, and the imposition of a fee for mandatory Family Disputes Resolution (FDR) service. “These will make the Family Court less accessible, efficient and effective. The State has an obligation to assist the resolution of family disputes. The Bill fails to recognise this obligation,” the Law Society said in a 61-page submission in February 2013.

After thirteen months of debate, lobbying and frustration among lawyers at knowing the almost certain negative outcome, most of the Care of Children Amendment Act (No 2) 2013 was brought into force by Order in Council on 31 March 2014. “We have worked hard to prepare for the new system. It is true that lawyers still have misgivings on some matters. However, it is very clear that family lawyers are committed to doing their best to make the new system work,” Law Society Family Law Section chair Garry Collin said in a statement at the time.

Mr Collin said the Law Society would continue to closely monitor the practical impact of the changes.

“These include the increased number of people representing themselves in court processes, court staff and judicial resourcing, a changed cost structure, and the accessibility of information on processes and how people will operate in the new environment.”

What is happening now?

Four years on, the changes to the family justice system are under intense scrutiny. Garry Collin is now a District Court Judge, but the 2014 Family Law Section chair pointed to some of the problems which have emerged and stayed in the Family Court system.

Justice Minister Andrew Little has initiated a review and evaluation of the 2014 reforms. This is being led by an independent panel, consisting of former Chief Human Rights Commissioner Rosslyn Noonan as chair, Kaitaia family lawyer La-Verne King and Wellington family lawyer Chris Dellabarca.

Announcing the panel, Mr Little said the 2014 changes were meant to help people resolve parenting disputes without having to go to court, but have in fact led to the opposite.

“There’s been a huge increase in the number of urgent ‘without notice’ applications which have to be put before a Family Court Judge,” he said.

“I am concerned that families and children are losing out as a result of not receiving adequate advice and support during this distressing time. The last Government removed access to lawyers in many cases and I’m concerned about how this and the other changes have impacted on access to justice.”

The terms of reference require the panel to report back to Mr Little with recommendations by the end of May 2019. They state that the panel is to consider the 2014 reforms as they relate to assisting parents/guardians to decide or resolve disputes about parenting arrangements or guardianship matters in a number of areas.

“I’ve directed the panel to take a human rights approach when considering improvements to ensure that welfare and best interests of the children are paramount when settling disputes about their care,” Andrew Little says.

The panel is supported by an Expert Reference Group. Mr Little says the group will also play an important role, giving panel members access to people with expertise across a range of disciplines, including law, mediation, child psychology, kaupapa Māori and family violence to ensure its findings reflect current research and best practice.

The 11-member Expert Reference Group comprises Professor Bill Atkin and Associate Professor Nicola Taylor (family law academics and researchers), Associate Professor Ruth Busch (retired, an expert on family violence), Catherine Cooper (General Manager of Resolution Institute NZ), Jill Goldson (family mediation specialist), Deborah Hart (Executive Director of AMINZ), Simon Jefferson QC (leading family law barrister), Dr Jan Pryor (psychologist and academic specialising in outcomes for children after parental separation), Professor Jacinta Ruru (kaupapa Māori research expert), Kirsty Swadling (family barrister and Chair of the Law Society’s Family Law Section) and Renuka Wall (psychologist and specialist court report writer).

Public submissions begin

The review and evaluation of the 2014 reforms got underway in earnest on 5 September when an eight-week period for public submissions began. The Independent Panel also released a consultation document, Have Your Say on the Family Justice System, with public submissions being sought during the period between 5 September and 9 November.

“We’d like to hear about how the 2014 changes to the family justice system have affected you and your family,” the panel says in its consultation document. Setting out the changes made to the family justice system in 2014, the document sorts these into three main areas: out-of-court processes, in-court processes, and the role of professionals.

The panel says that from information “it has gathered from many sources”, the most important of these appear to be:

• The introduction of Family Dispute Resolution;
• The way in which applications are filed in the Family Court (the large increase in the number of without notice applications); and
• Removal of lawyers from the early stages of in-court processes that are not urgent.

Independent Panel summary of the main changes made by the 2014 reforms

Out-of-court processes

• Introduction of Family Dispute Resolution (FDR).
• Parenting Through Separation Programme becoming compulsory for people who want to apply to the Family Court.
• Setting up of the Family Legal Advice Service.

In-court processes

• Removing lawyers from the early stages of a court case (except where cases are urgent).
• Changes to court processes including introduction of ‘case tracks’ and different types of conferences to progress court cases.
• Changes to the way the children’s safety is assessed.

Role of professionals

• Changing the role of lawyer for the child to represent both a child’s welfare and best interests and views.
• Changes to how specialist reports are obtained and the introduction of a standard brief (a checklist) for those reports.
• Removal of counselling services.
• Introduction of ‘cost contribution orders’.

The impact of the 2014 changes: some indicators

What impacts on the family justice system did the 2014 changes have? Statistics always only tell part of the story, particularly when it is about the impact of changes on the minds and attitudes of people who work in or are thrust into the family justice system. The extensive consultation which is now underway delves into the experiences and attitudes of family justice system users and will generate an invaluable collection of personal narratives and perceptions. The statistics do, however, graphically illustrate that major changes have occurred. The Ministry of Justice has provided several datasets for the Family Court system over time, which enable tracking of trends.

Care of Children Act applications

The overall number of disposals for CoCA applications has continued to fall, although this trend began before the 2014 reforms. Overall, there has been a 32% fall in disposals in the last seven years, and a fall of 17% in the period since the reforms came into effect. Indications are that the impact of the reforms on average disposal times has been to increase the time taken, with the 246-day average in the latest year the most in seven years.

Disposals and average age at disposal for CoCA applications, year to 30 June

The proportion of CoCA applications as a proportion of total family applications has fallen noticeably since the 2014 reforms came into force.

All family applications and CoCA applications, year to 30 June

When it comes to differentiation between on notice and without notice applications, the data shows how radically the situation changed for without notice CoCA applications after the reforms came in. CoCA without notice applications go from making up 32% of all CoCA applications in the year to 30 June 2013, to making up 69% of all CoCA applications in the year to 30 June 2018. Over the period from 2013 to 2018 there was an increase of 74% in the number of CoCA without notice applications, while CoCA on notice applications fell dramatically from 15,209 to 5,980. The 33% rise in all without notice applications in the Family Court over that period appears to have been largely fuelled by CoCA proceedings.

All Family applications, year to 30 June

All CoCA applications, year to 30 June

Proportion CoCA against all Family applications, year to 30 June

Lawyer for the Child

The data shows that appointments of lawyer for the child under the Care of Children Act 2004 have remained relatively constant, with some upwards and downwards fluctuations in the years around the reforms. There seems to be an upwards trend, with the number of appointments having risen by 11% since the 2014 reforms bedded in – after a 17% drop immediately after the reforms.

Appointments of Lawyer for the Child, year to 30 June

Costs related to Care of Children Act

Information on family justice system costs related to Care of Children Act matters has been provided for the first two years following the 2014 reforms. The data does not include fixed and personnel costs not affected by the reforms. Costs relate to payments for service providers. While the costs for out-of-court services, including the new FDR, rose in the two years after the reforms, in-court costs showed a fall. Overall, the total costs related to Care of Children Act matters fell by around 13% from the last year pre-reform to the first two post-reform years.

Care of Children Act costs related to service providers, year to 30 June ($ million)

Family Dispute Resolution (FDR)

A major outcome of the 2014 reforms were significant changes to the out-of-court processes. FDR is a service aimed at helping separated parents and guardians reach agreement about caring for their children. It replaced out-of-court counselling and in-court mediation (known as the Early Intervention Process). In the four years since it was introduced, Ministry of Justice data states that FDR has seen mediation completed in 6,256 disputes involving 12,590 people, with some or all matters being resolved in just over 80%. There are indications of a downward trend in the proportion of disputes where some or all matters are resolved. The data is based on when the event is marked as finalised in the system, but it may have taken place earlier. It does not indicate the durability of agreements. The data also does not show the total number of disputes logged into the system. The Family Law Section says its information is that 79% of exemptions granted are because one or both parties cannot or will not participate, and the data only shows the mediations completed.

Completion of mediation in Family Dispute Resolution, year to 30 June

Parenting Through Separation

The Parenting Through Separation information programme was an available option before the reforms. It was made mandatory for people wishing to make an application to the Family Court for a parenting order or to resolve a dispute between guardians unless an exemption applies. It is free to participants and usually consists of two two-hour sessions. Without data from before the 2014 reforms it is not possible to gauge the impact of mandatory participation requirements. The number of people completing the programme has remained relatively constant over the last three years. The data shows people who completed the whole course, rather than just part.

People completing of Parenting Through Separation, year to 30 June

Family Legal Advice Service

This was introduced as part of the reforms because legal aid was no longer available for Care of Children Act matters before filing an application in the Family Court. The service has two components: initial advice, and assistance with court forms. Both are funded on a fixed fee basis.

Comparison of the number of people accessing the Legal Advice Service with the number who went on to the FDR process appears to indicate that a relatively high proportion may have gone on to FDR.

Access to Family Legal Advice Service, year to 30 June