Family Court review just a cost-saver

23:49, Aug 08 2012

How can it possibly be anything other than detrimental to children to require parents to pay for help in making arrangements for their care?

The average weekly income in New Zealand in June last year was $703 before tax. Parents seeking help in resolving disputes over care arrangements for their children will in future be charged $897 to access counselling.

That fee is not only larger than the entire income many people earn in a week, but is more than many families take home in a week. It is certainly more than my clients' total weekly family incomes.

Last week Justice Minister Judith Collins announced details of the Government's plans for changes to the Family Court. The proposals arose from a review of the court, including a discussion document entitled Reviewing the Family Court - A public consultation paper released last year.

The paper placed heavy emphasis on the financial cost of the Family Court, raising fears that the court was about to be subjected to a hatchet job. The document also made sweeping criticisms of the court - but provided no evidence to support these assertions.

A small number of anonymous 'case summaries' in the document trivialised the real work of the Family Court by painting a picture of middle class parents squabbling over minor issues.


The document contained statements such as 'Early resolution is better: Early self-resolution out of court achieves better outcomes for children and families. We need to promote conciliation over litigation.'

However, there was no acknowledgement that this is exactly what the Family Court has been doing for more than 30 years. Except in emergency cases, care of children proceedings go first to counselling and then, if necessary, to mediation. More than 95 per cent of cases are resolved in this way, meaning that less than 5 per cent go to adversarial defended hearings.

Last week's announcements have confirmed fears that an axe would be taken to the Family Court, jeopardising its core purposes of providing a cost-free, easily accessible and effective means to resolving family issues.

In May, the Government announced the introduction of fees for civil disputes in the Family Court and last week's announcements heralded the introduction of an $897 fee for previously free counselling services.

These fees will reduce access to the court for those most in need of its services. In both cases, ministers said that fees could be reduced or waived for low- income earners but no details were provided.

A new Family Dispute Resolution Service will be set up outside the Family Court to provide counselling on a payment basis. At present, parents are entitled to up to six free counselling sessions to help them talk through and agree on arrangements for their children. This is extremely successful in practice but is to be immediately slashed from six to one counselling session as an interim measure. The media release said that this would 'mean counsellors would need to take a shorter, outcome-focused approach'.

Another way of putting this would be to say that counsellors will be given an all-but-impossible mission. Achieving agreement on family issues in one short hour is simply unrealistic.

It is difficult to see what will really change under the Family Dispute Resolution Service - apart from the new charges - since counselling does not at present take place within the Family Court premises. The Government's media release stated that: 'It is estimated that 1200 families (approximately 2000 children) will no longer have to go to court as a result of family dispute resolution.'

This is mystifying. Children do not at present go to the Family Court in such cases and very few parents do either.

The proposals also include many parents in future dealing with Family Court cases without lawyers, representing themselves. I am all in favour of people resolving their own disputes, but it is simply not possible in all cases. Some parents really need lawyers and will be seriously disadvantaged and intimidated by being required to represent themselves. The proposals do not acknowledge how many New Zealanders cannot read or write, have English as a second language, do not have access to computers, or have mental health problems or intellectual incapacities.

Family law matters are extremely emotional and difficult for people to deal with. Stating that 'for simple private matters lawyers are not needed, so parents can represent themselves' is unrealistic.

The review has been a short-term, short-sighted exercise focused on short- term cost-cutting. No consideration has been given to the long-term, detrimental impacts of allowing family issues to fester unresolved.

If the Government is serious about wishing to resolve family matters speedily, it should appoint more Family Court judges so that people involved in the 5 per cent of most-difficult cases can access the court quickly, instead of waiting lengthy periods for hearings.

However, the announcements in relation to the domestic violence aspects of the review are to be commended. I agree that the court is not focused enough on the most serious domestic violence cases. I also welcome the increase in maximum penalties for breaching protection orders, the inclusion of economic abuse in the definition of domestic violence, and improvements to stopping- violence programmes.

Catriona MacLennan is a barrister and legal commentator.

The Dominion Post