New Zealand Law Society - Family justice — time for evolution not revolution

Family justice — time for evolution not revolution

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The review of the 2014 family justice reforms is currently underway, and the Independent Panel has much to consider – as befits the importance of the subject and the political attention their deliberations will receive.

Justice Minister Andrew Little has said that he is concerned that families and children are losing out as a result of not receiving “adequate advice and support” during what is a distressing time for children. While this is an important focus for the panel, it should not be the only focus. This review presents a rare opportunity to consider the broader experience of families.

Yes, there certainly is room for improvement in the current family justice system. One of the intentions behind the 2014 changes was to encourage parents to resolve disputes through out-of-court mechanisms – while also improving access to the Family Court in cases where urgent attention was required. It appears that one of the unintended consequences of removing lawyers from the earliest stages of filing applications in the Family Court has been a significant increase in the number of without notice applications filed in court, leading to long delays for participants and a growing backlog of cases requiring the intervention of a judge.

The original vision of the 2014 reforms has obviously yet to come to fruition. But we shouldn’t lose sight of the benefit of the out-of-court mechanisms, while we look to improve the in-court operation. Now is the time for evolution rather than revolution. We should build from the successes and failures. We need to look at ways we can better employ the significant skill base – currently underutilised – within the family professionals we have here in New Zealand.


The mediation road to date has been long and winding. It stretches from the introduction of Family Group Conferences in the late 1980s, regional pilots and the Early Intervention Programme, to today’s subsidised Family Dispute Resolution (FDR) mediation service.

While FDR is certainly underused, the statistics in the October 2018 issue of LawTalk show an impressive success rate, averaging at 82.5% of parents reaching agreement on some or all matters over the past four years. The mediation service did encounter teething problems, notably lengthy delays in early 2014, but now FDR providers generally make contact with parties within three days of being appointed in FairWay’s FDR service. Children have a different sense of time and even a week without seeing a parent can have a real impact for a small child. FDR enables parents to make decisions without delay and within timeframes that work for their children. The Family Dispute Resolution service has proven its value. It is working well. It has the capacity to assist many more families.

Since the inception of FDR, New Zealand’s pool of family mediators have honed their craft through continued training, evaluations and professional supervision, continual improvement and professional development. We have set the standard high and developed a community of mediators from an impressive variety of backgrounds who meet this mark. There is a lot of untapped potential here. Given the current backlog issues in the Family Court, many lawyers may wish to consider referring any of their current cases experiencing long delays to FDR, especially now there is the ability to have a representative for the child attend mediation as part of the 12-hour FDR allocation.

Good things take time. We are just really beginning to understand the benefits for FDR. We know that the downstream costs of not resolving a dispute quickly can have significantly adverse ongoing effects for children and for parents. The benefit of FDR is that parents are guided to reach agreement about their children at an early stage of the dispute.


The 2014 reforms, which prevented parents from having the assistance of lawyers at a time when they need good quality legal advice and support, have had consequences. This shift has hindered both the in-court and out-of-court systems. Family separation can be extremely stressful, and there can be any number of serious issues leading to the separation. Through this change, parents need to maintain their children’s lives and protect them from some of the consequences of separation. This is a time when quality legal advice and legal representation should be available. People cannot easily make informed decisions simply from reading information online. They need conversations and quality client-centred work with someone who will ask the right questions to elicit the information required.

Ideally, more funding, training and support should be available for family lawyers to assist their clients to reach agreement both in court and through FDR. The removal of access to lawyers has caused unacceptable delays for children. It has significantly increased the workload of court registry staff and judges. This is an access to justice issue that now needs urgent attention.

Room for improvement

Questions in the consultation paper suggest the Independent Panel is also considering the availability of online services, such as online Parenting Through Separation courses. I can see advantages in having videoconference or live webinar options available. For many parents, resources can be stretched at the time of a separation as they work through new living arrangements and establish two households, often while their relationship property issues are being worked through. Parents are also often busy managing a variety of commitments at home and in the workplace. Removing the burden of travel, parking and childcare costs would really make a difference for many parents.

However, we need to make sure that the online option is still engaging, interactive and led by experienced facilitators. Simply watching a video on their own will provide only limited benefit for parents. The intrinsic value in these programmes is in the discussion that occurs, so the idea of a live webinar or video conferencing option should be explored. Yes, online mediums can present challenges, but these challenges can be mitigated.

Online services would also make a difference for parents who cannot attend in person, for example parents in prison, or parents living overseas. While these parents may not be present in the day-to-day care of children, contact arrangements and parenting choices involving them remain. Through online services, we can open up access to support services, which would have an enormous benefit for both their children and wider society.

What’s missing?

Could family law arbitration be a new avenue in our family justice system? Some would certainly say so.

Unlike mediation, arbitration is a more formal process determined by the Arbitration Act 1996. Arbitration could be a good option for many New Zealand parents unable to mutually agree but who want to have more control over the process. These families can benefit from having an independent decision-maker. By engaging in arbitration, parents can choose who will make the decision and within what timeframe. Arbitrations can be completed far more quickly than court hearings, with many cases being able to be determined within just a few weeks – or even days. Arbitration also provides for total confidentiality and is more cost-efficient than going to court.

Just like in the Family Court, at their own cost parents can include lawyers in the process, including appointing an accredited lawyer for child to represent the child’s voice, and specialist reports can be evaluated as expert evidence.

While family law arbitration is not yet common in New Zealand, it is commonly used to privately resolve care of children and relationship property issues in some overseas jurisdictions, notably Scotland and England.

We already have a small pool of experienced family law arbitrators in New Zealand, including retired judges, Queen’s Counsel and AMINZ Fellows. Provision of a funded arbitration service could be the longer-term solution available to separated families.

Family law arbitration could also be an excellent option for cases where the parties have been unable to reach agreement at FDR. This avenue would support the intent of the 2014 reforms by enabling more families to reach agreement out-of-court, while also freeing up the court to focus on the families who need urgent assistance.

Cases involving family violence or care and protection concerns should stay with the courts rather than be arbitrated.


Many of us working within the family justice system are keenly awaiting the Independent Panel’s report this May. I’m sure this report will provide much food for thought for both the minister and all professionals working within the family justice system. This review is a real opportunity for evolution and one which could result in substantial improvements for separated families. We need to get it right.

Keri Morris is Client Director of FairWay Resolution Ltd’s Family Dispute Resolution Service.

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