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Family Court changes in 2014 backgrounded

The changes to the Family Court are designed to help people come to amicable decisions out-of-court, says Lara Ariell, Ministry of Justice General Manager Performance and Improvement for Courts and Tribunals.

The Ministry of Justice ran a road show around the country in November 2013 giving a general overview of the system. More detailed training for lawyers, other providers and ministry staff will be available in February 2014.

Ms Ariell says the changes mostly affect Care of Children Act applications, which make up roughly 40% of the Family Court’s business.

She says the changes are “repositioning the Family Court as part of wider family justice system, encouraging people to reach agreement outside of court and freeing up court space to focus on serious cases that really need judgement or intervention.”

The changes are likely to take effect in March 2014.

Ms Ariell says the ministry is currently in a procurement process for Family Dispute Resolution (FDR) suppliers, and this is expected to be completed by the middle of December.

The ministry is also designing a reporting management system for the out-of-court services, so that key events can be tracked. This system is expected to be rolled out in March.

The regulations relating to FDR have been passed and gazetted, and the ministry is working on amendments to the Family Courts Rules.

Ms Ariell says the ministry believes a possible increase in self-represented litigants is manageable.

“Improved information services and court forms are being designed to help people navigate the court system in routine matters. If a case goes to a hearing, parties are legally represented, and a judge is able to involve lawyers earlier in the process, where the parties need assistance.

“People will have taken part in the Parenting Through Separation (PTS) course and FDR at the front end and will have had the opportunity to sift through a lot of the issues and really clarify what they’re looking for the court to decide on. Whereas at the moment, there is a raft of issues that the judge needs to sift through,” she says.

Ms Ariell says the changes will help people in the Family Court, “be a lot clearer about what they need judicial decisions about”.

The out-of-court process

Entry points

“It’s important to acknowledge that there are lots of family disputes that are already settled in the out-of-court space that we don’t hear anything about,” says Ms Ariell.

“We also know that a huge number of people don’t come to court as their first point of information around what happens if they’re separating.”

The ministry is revamping its website with more plain-English information on family justice matters and beefing up its contact centre.

“Where there are cases involving risk factors or urgency, people will still be able to have direct access to court. What we’re really talking about is an expanded range of out-of-court services, some information about how those out-of-court services are funded for eligible people, and more certainty around the tracks for when people do have to go to court,” says Ms Ariell.

Self-resolution process

The existing providers will continue to deliver the PTS education course, which is free and helps people understand children’s needs and provides advice on how to help children adapt to separation.

The course is compulsory for those who want to make an application to the court where agreement has not been reached, unless an exemption exists. Where risk factors are involved cases will go through the without notice process. Attendance at PTS is recorded in the management system described above.

“The course provides tips on communicating with children and ex-partners and provides options for working out care of child arrangements,” says Ms Ariell.

“If the parties want to, they can work together with the new skills they’ve got through the PTS course to maintain that agreement. If they are not so comfortable with that, they can apply through the court to have a consent order made,” says Ms Ariell.

According to the ministry, quite a few people do end up in the Family Court to get a consent order and Ms Ariell says it wants to make sure that the process of getting that order is as streamlined as possible.

Family Dispute Resolution (FDR)

FDR starts with an assessment of the two parties’ readiness for mediation, along with the issues they have, to determine and whether mediation is an appropriate option for them. Some people may be exempt at this point if they are unable to participate effectively.

If the FDR provider feels they could benefit from preparatory counselling before going through mediation, he or she will refer them to a counsellor.

FDR is also compulsory for those who want to apply to the court unless an exemption applies. FDR participation will be recorded in the management system.

FDR providers are accredited by an approved dispute resolution organisation, one of which is the New Zealand Law Society. Accreditation will ensure that mediators are of a high quality.

Providers will contract with, or be employed by, FDR suppliers to supply most FDR services. (Privately funded FDR services may be provided directly by a provider to the public). Tenders for FDR suppliers closed in November 2013.

Legal support in out-of-court space

People in dispute will need to know what their legal options are and what they’re entitled to.

The legal support can cover general rights and options, guidance about end-to-end justice process, and help with completing any forms should parties proceed to court.

“If people want to engage a lawyer independently, they’re absolutely free to do that,” says Ms Ariell.

Funding

Government funding is available for FDR, preparatory counselling for FDR and legal support.

People can apply for funding through their FDR provider or lawyer. A simple eligibility test for funding with income thresholds will apply. An online calculator that people can use to self assess is being developed.

Filing documentation

An urgent or high-risk situation will automatically send people through the “without notice” track, and lawyers can file documents for people in this case.

Ms Ariell says for more straightforward matters, there are “simple” and “standard” tracks through the in-court process.

Parties will file applications for themselves. To help people do so, the ministry is developing a new range of court forms.

People can use the legal support service to have help with completing forms and if not eligible for legal support they can engage a lawyer privately.

“When people file those applications forms they need to prove that they’ve completed PTS and FDR and the standard filing fees and fee waivers that we’ve got in place at the moment in the Family Court apply,” says Ms Ariell.

Simple track

The “simple track” is for people who have reached agreement and want a consent order made or where there are undefended proceedings.

Cases are intended to be dealt on the papers by a judge with plain English questionnaire style affidavits. People represent themselves on the “simple track.”

Standard track

Where people have not been able to reach agreement outside of court the standard track is the process that applies in court, except in the case of without notice applications.

In most cases the person applying for an order will need to have attended PTS, and both parties will have taken part in FDR.

A judge has a range of options for managing standard track cases.

Judges can direct people to an issues conference where they represent themselves, or to a settlement conference in which they can represent themselves or be legally represented if the judge allows. Where the judge allows legal representation, parties can apply for legal aid.

A judge can also order specialist reports or appoint a lawyer for child.

When it gets to the stage of a formal hearing, both parties are entitled to legal representation and can apply for legal aid.

Without notice track

Nothing changes structurally in the Family Court in these cases. The “without notice track” is where there are risk factors and urgent situations, or concern for safety of children.

A judge can shift the case from the “standard” to “without notice” track if he/she thinks there are risks involved. A lawyer, lawyer for child, and legal aid are available.

Further options for judges within tracks

A judge can refer people back to PTS or FDR if they haven’t done it within the last two years or one year respectively. With consent, a judge could send the parties back to FDR or PTS even if they have done it.

Court costs

A cost contribution order can be made by a judge.

Ms Ariell says a judge must now consider some of the cost of services (specialist reports, appointment of lawyer for child or lawyer to assist the court) and people may be ordered to contribute up to a third each. The Crown will pay at least a third of the costs.

This article was originally published in LawTalk 833, 6 December 2013, pages 7 to 9.

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Last updated on the 10th December 2013