Back in April 2011, the New Zealand Government commenced a study by the Ministry of Justice about the workings of the Family Court and to review how it was perceived.
It was identified that the court processes were complex, uncertain and too slow, there was a lack of focus on vulnerable people and there was insufficient support for resolving disputes before the matter went to court.
At that time the then Justice Minister, Simon Power, made a lot of statements in the media about the cost of justice, in particular the amount spent by the Government on Legal Aid each year.
In an effort to save money and to make the Family Court more efficient a new set of Family Court reforms will "go live" on April 1, 2014.
These reforms will apply to all issues around the Family Court that arise after that date. Earlier matters that have been filed are not affected.
Basically, the emphasis is now on trying to settle a case before an application is even filed. This is something that most family law practitioners support. A court action leaves cuts in a family that never really heal.
A relatively new service called Family Dispute Resolution has been made mandatory by the courts before an application can even be filed.
Counselling is being taxpayer funded and will be supplemented by additional funding for low income earners to have legal assistance before court.
This is all good stuff and I think it will work well.
But prospective litigants cannot have a lawyer involved in the filing of proceedings. Once filed, the matter is listed firstly at an Issues Conference before a judge and then later at a settlement conference, where a lawyer may be allowed to be involved by that judge. This includes the appointment of court-appointed lawyers to speak for the children (who otherwise do not have anyone to speak for them), other than the parties to the litigation in the first place.
This last point I do not agree with. A vast majority of the family law lawyers I have dealt with encourage the parties to settle - at all stages of proceeding.
Attendance of lawyers at hearings (when the matter doesn't settle) is still OK, but only kicks in at a much later stage. This includes lawyers appointed by the court to represent the children - who the court's decision affects the most.
It is cruel that children - who do not want to have to pick a side - will not be represented by someone to speak for them in an already-stressful court process.
Also, if a lawyer for the child is appointed, then under the new legislative regime each party will have to contribute one-third of the cost. It used to be funded by the Government. What parent who is looking after the kids and who has no job following a separation can afford that?
What is interesting to me is that another big part of the change to the laws is a stronger emphasis on domestic violence. The definition of domestic violence includes "financial abuse" or using the fact that one party (usually the mother) who has the kids and no job, is more financially vulnerable than the other.
But is that not what the proposed changes are enabling? Imagine being a recently separated mum or dad and not being able to pay for a lawyer to represent your kids. This means the kids would have to be put through the stress of a court process.
If legal representation is required (and often it simply is), that party, instead of having to pay for one lawyer, now has to pay for two.
I generally agree with domestic violence laws being changed and the penalty for breaching a protection order being increased from two to three years is, I think, a good idea. But the lack of early legal representation, especially for kids, is something that will, I think, cause problems in the future.
In reality, family lawyers talk between themselves, act as a buffer between parties, advise of what will probably happen, attempt to settle things between parties (who often have come to despise each other) and have to draft and explain the documents evidencing settlements in a way that is legally binding and yet easy to understand.
I worry that this very important job will be compromised by the changes outlined in the new legislation and that kids' voices won't be heard as much during the court process as they were in the past.
Only time will tell.
- The Timaru Herald