1. About the author
I would like to speak to my submission before the Select Committee. My experience provides a solid foundation to my submissions.
2. General position
I want to also note that due to the nature of the people who are my clients and the strict confidentiality and delicacy of Family Court matters, it has been challenging to encourage the people most affected by these proposed changes to speak on their own behalf. I have, however, consulted with clients in writing this submission.
I am particularly concerned about the restrictions on assistance from a lawyer. I believe this will result in an uneven playing field and create a barrier to accessing to justice for people who:
- Have been subjected to family violence, especially psychological violence which is often less easily identified
- Have English as a second language or have a cultural background that makes navigating the New Zealand Court system particularly challenging
- Have a mental health difficulty
- Have limited literacy
- Are hearing or vision impaired
- Are of a young age
- Are socially disenfranchised
- Are generally shy, self-conscious or inarticulate
I am concerned that limiting the appointment of a Lawyer for the Child will mean that children are not adequately represented or heard. Lawyer for the Child also assist with early dispute resolution through their advocacy for the child and I am concerned this opportunity might be lost if Lawyer for the Child is appointed later in the court case rather than at an earlier stage.
Finally, I am concerned that the cost associated with the Family Dispute Resolution Service will create a hurdle to accessing justice for those who need it most, and at the very least contribute to inequity between parties of different means.
3. Family Court Proceedings Reform Bill
I partially oppose the re-wording and re-sequencing of section 5. I query the rephrasing of section 5 when it doesn’t seem broken and in need of repair.
The rephrased principles lack some of the important values that are currently in section 5. For example:0
- It is incongruent with the principle of Family Dispute Resolution through mediation to propose the removal of the principle that parents be “…encouraged to agree their own arrangements” from the current section 5(a) of the Care of Children Act.
- The removal of the reference to people “…entitled to have contact with the child” in the proposed section 5 (c) about the need for consultation and co-operation. The new wording places the emphasis on the parent entitled to “care” rather than including the parent entitled to “contact”. This appears to undo some of the gains made under the Care of Children Act about the role that both parents, as opposed to solely the primary caregiver, should play in a child’s life.
- The removal of the principle that a child should have a continuing relationship with both parents (currently in section 5(b) and removed in proposed 5(d)).
I note that the principles in section 5 of the Care of Children Act have been re-sequenced. Given there has been recent judicial commentary in the Supreme Court case of Kacem v Bashir  NZSC 112 about whether or not any of the principles under section 5 take precedence over the other it might be helpful if there was an indication given that the proposed sequence of the principles are not intended to create a hierarchy or priority of principles.
Section 5 will continue to place a focus on keeping children safe from violence yet the proposed legislation will remove the test criteria in current section 61. The principle regarding safety from all forms of violence might be better strengthened if it was moved from 5(a) to section 4 and become a component of the paramountcy principle i.e when considering the child’s welfare the Court must consider whether that child is safe from violence. Such a move would shift the concept from being a “principle” to being a mandatory consideration which does take paramountcy over the other principles in section 5.
B. Replacement of Section 7
I oppose the amended section 7. This proposal restricts the appointment of Lawyer for the Child to circumstances when that court a) has concerns for the safety or well-being of the child, and b) considers an appointment necessary.
In general, this will restrict when a lawyer will be appointed to represent children and unnecessarily removes the voices of children from matters which directly affect them. Children are interested parties and the narrowing of section 7 prevents children’s participation – even when the subject children are well old enough to have clear views.
This not only reduces the voice of children in court proceedings but also means that information gathered and presented by Lawyer for the Child might be over-looked. The new section removes the current mandatory provision in section 7 that the Lawyer for the Child must meet with the child unless there are exceptional circumstances though the principle is recorded in the proposed amendment to the Family Court Act.
Sometimes professionals involved with the family are more willing to provide information to the perceived neutral Lawyer for the Child rather than to either parent. As Lawyer for the Child, I often receive information from the Police Family Violence Safety Team, Child, Youth and Family, the pre-school or teachers, Plunket, Women’s Refuge or social work/family support workers with social services agencies etc. I often undertake a home visit to the child (when appropriate). This enables the Court to receive valuable, independent information and frequently brings to light information that was either not previously on the court file or possibly independently supports concerns raised by parties.
I wonder whether the reduction in the appointment of Lawyer for the Child has less to do with the quality of, or necessity for, advocacy for children but rather to do with the cost. It would be a shame for the availability of this important role to be reduced due to cost rather than lack of necessity.
It might be that this cost stems not from having a Lawyer for the Child appointed almost as a matter of course but from the current disconnect between Lawyers for the Child as an advocate of views and wishes as opposed to a proponent of welfare and best interests following the reworking of the role from the Guardianship Act to the Care of Children Act. While it is not often the practice in the Christchurch Family Court, I understand this imbalance between views and welfare and a perceived conflict of interest has resulted in the Court appointing Counsel to Assist the Court. This creates two state funded lawyers – one to advocate for the child’s views and wishes and another to advocate for the child’s best interests.
I believe the Select Committee should not overlook the role that Lawyer for the Child currently plays as advocate, occasional tie-breaker and moderating voice. Many disputes have been settled at the mediation stage because there is a Lawyer for the Child who expresses the children’s views, who can present information sourced independently, and who indicates a position if the matter went to a hearing.
Lawyer for the Child can also provide a check and balance on children’s safety when one parent is likely to bow to pressure from the other parent and prevent settlement when such settlement could place the children at risk.
It might not be necessary to restrict when Lawyer for the Child is appointed given the definition of the role of Lawyer for the Child in proposed section 9A Family Courts Act. I support the definition provided of the role.
There has been a growth in the appointment of Counsel to Assist the Court for the purpose of hosting a non-Judge-led mediation conference. The benefit of this is that parties have been quickly able to access a mediation forum during which agreements, at least on an interim basis, are reached. When I first started practice it was not uncommon to have to wait 10 weeks for a Judge-led mediation conference of about 90 minutes. Counsel-led mediation is usually held within 4-6 weeks with time available of up to 3 hours. The FDR process will reduce the need for Counsel-led mediation.
I submit that the re-wording of section 7 limiting when a Lawyer for the Child might be appointed goes too far and is likely to be unnecessary within the new working parameters of the Family Court Reforms.
I recommend that the Committee consider who children’s views and wishes can be expressed through as part of the FDR process.
With the current drafting of the Bill there is a risk that New Zealand will not meet our obligations under article 12 of the United Nations Convention on the Rights of the Child because we will not be providing the child with an opportunity to be heard in any “judicial or administrative” proceeding affecting the child.
C. Inclusion of Section 7A
I oppose the restrictions created by the proposed section 7A on the right to use a lawyer. The effect of section 7A impacts not only on the use of a lawyer for the purpose of advocacy but also for the purpose of receiving advice. I am more worried about the great injustice this will cause for vulnerable people.
My practice primarily services legally aided clients. I opened in September 2012 and currently have 154 matters including Lawyer for the Child. I moved from a secure job in a mid-sized firm to starting my own practise because I saw that many law firms were exiting from providing legal aid, and my values as a lawyer prevented me from turning my back on the most vulnerable people in society. I currently have to work on average 65 hours per week to keep my business afloat, but I believe the effort is worth it. The pie chart above shows the distribution of my Family Court matters by proceedings type.
When I consider those matters I identify the following vulnerabilities for participants:
- Language/Cultural Barrier
- Allegations of Violence (Protection Order – Applicant)
- Allegations of Violence (Protection Order – Respondent)
- Allegations of Violence (No Protection Order – either party)
- Mental Health (Issue)
- Socio-economic Barrier
- Young Age
Obviously there can be more than one barrier to self-representation.
At times, there is an expectation that violence will be tolerated because the duty to the husband, marriage vows or family pride is paramount. Within New Zealand we are still working on the message that family violence is “Not Ok” and that it is okay to ask for help. For some cultures recognising “It’s Not OK” is still a challenge and speaking about it is even harder.
Proposed s7A is too restrictive. My submission is that any participant in the Family Court should be entitled to receive legal advice, to be represented and to have legal aid available if their financial circumstances are such that they cannot afford a lawyer.
These examples on barriers to self-representation don’t include the clients who in other circumstances are completely confident but, on the cusp of entering the courtroom for a Judicial Conference, turn to me and say “I’m not going to have to SAY anything, am I? Is the Judge going to ask ME questions?” Even for a lawyer walking into a Courtroom to argue a particularly important or complex issue can be a big deal – even though it is our job, even when we have been doing it for years.
If Parliament will not continue the right to a lawyer and “equality of arms” then there needs to be exceptions to the S7A rule.
Just as there are proposed exceptions to the use of FDR in proposed section 3C(1) of the Family Courts Act, there should be more exceptions under section 7A. Those exceptions could include:
- Where the party is a protected person on a Protection Order (including temporary orders) and the other party to the proceedings is named as the Respondent or Associated Respondent.
- Where the party A is a victim of violence against whom party B has been convicted of offending including convictions for damage to the property of party A. (It should not be presumed that a Protection Order exists even if there has been a conviction for violence).
- Where one of the parties to the proceedings has a conviction for sexual offending.
- Where a party to the proceedings is under the age of 20.
- Where there are “complex issues” such as allegations of sexual abuse or there has previously been a Family Group Conference about a child who is the subject of the proceedings.
- Where the party suffers from mental illness or an intellectual disability
- Where the person requires an interpreter/translator or has barriers to communication
The last two criteria in the proposed exceptions are a reflection of the wording for “additional factors” on legal aid fixed fee grants. Under that granting scheme it is acknowledged that people with a “mental illness/intellectual disability” or who require an “interpreter/translator or has a barrier to communication” require more assistance than another person might. That need has been overlooked in the proposed reforms to the s7A.
Note: When one considers the majority of my matters are funded through legal aid, and therefore from clients who have accepted economic hardship, the category of ‘Socio-economic’ carries a lot more weight. A full 27% of my Care of Children Act case-load involve participants who suffer significant hardship by way of poverty, low education, minimal opportunities and illiteracy.
On a practical level, a potential party might seek legal advice because the matter is “urgent” and then, once the lawyer has assessed the circumstance, the advice might be that the perceived urgency doesn’t meet the high threshold for a without notice application. That leaves the party without legal aid and with the private debt burden of having consulting a lawyer at a private rate.
"In my experience, skilled lawyers are able to identify the issues early on and provide focus in proceedings. This makes proceedings much more efficient.” – Speech of (then) Principal Family court Judge Boshier, “Examining the Review of the Family Court”, 10 October 2012.
Most matters in the Family Court settle well ahead of a hearing and therefore I question whether, if a means of negotiating settlement is removed (through lawyers), then how many more matters will progress to a hearing? It is unrealistic to expect that people who could not resolve their dispute independently or through FDR are likely to negotiate between themselves and resolve their own dispute ahead of a hearing.
There is an old saying: “The man who represents himself has a fool for a client”. A good lawyer does not blindly follow client instruction but provides objective advice which can often be robust in challenging the client’s reason for litigation and prospects of success.
The Lawyers and Conveyencers Act 2006 is very strict in its definition of what constitutes legal advice and who may provide such advice, precluding any argument that social service agencies or government agents such as Work and Income employees or Family Court staff could guide people in these matters.
D. Section 49A and the Repeal of sections 59-61
The relationship between section 49A and the new s5(a) is unclear given the current “section 60” provisions are repealed under the proposed bill. Section 49A reads as though if at any time during a proceeding the parties consent to the making of a final parenting order the Judge must make the final parenting order even if there are still unresolved concerns regarding violence and the safety of the children.
The current section 60 requires the Court to apply set criteria as part of a mandatory safety check before making care or contact orders to a violent party. Placing this responsibility on the Court mitigates against pressure on a party to consent to contact they would otherwise view as unsafe. I believe the repeal of section 60 might place children at risk because decisions about care and contact might be made without adequate regard to their safety. The repeal suggests that principle 5(a) is lip-service when the test to assess safety is removed from the legislation. As suggested above, this might be mitigated if the principle that children should be kept safe from all forms of violence is part of the section 4 paramountcy principle rather than contained within section 5 “principles”.
I concede there are times when lawyers and parties feel hamstrung by the existing section 60. For example, there might have been violence between the parties in the past but they feel able to put this behind them or acknowledge this was ‘contextual’ and unlikely to occur again, or is part of their “adult dynamic” but both parents agree there isn’t a risk to the children. In this instance the parties have reached agreement yet their agreement cannot be successfully advanced because of the need for the Court to make a determination.
This risk might be mitigated if the section 60/61 test provided the Court with a discretion. This means that a Judge may agree in some circumstances when there has been “low level” violence that a hearing is not required yet not permit risk to be circumvented when the allegations of violence are serious.
I feel considerable disquiet that in an era where New Zealand’s child abuse record puts us to shame in the OECD that our law-makers would consider legislation that removes a test assessing the nature and seriousness of violence, how recently violence occurred, the frequency of violence, likelihood of further violence, the physical and emotional harm cause to the child by that violence.
E. Section 57
I support this section because it makes it easier for parents to update their Parenting Orders when they are in agreement. It is a more streamlined process. I submit that it should also be extended to make it easier for parties who have resolved matters at FDR to have their FDR agreement converted into an enforceable Parenting Order. Often a key motivation for issuing proceedings is to achieve certainty and enforceability, not just to problem-solve.
F. Section 78
I support the extension of the provisions relating to contravening orders being extended to include Guardianship Orders. It is frustrating when the court makes a Guardianship Order (e.g. that a child is not to be removed from a district) and the parent relocates regardless of that order or refuses to return the child after a unilateral relocation. I support the Court being given greater scope to enforce those orders.
G. Section 133
I submit the scope given to the Court about when a specialist report should be obtained is too narrow. The Court should be permitted to fund a report when obtaining the report is both necessary and in the best interests of the child.
I submit that the following assessment criteria should be added to list of items available to the report writer:
- Assess the developmental status and developmental needs of the child
- Assess how well the child’s developmental needs are met by each parent/guardian/caregiver
- Make recommendations for minimising the costs and maximising the benefits to the child in respect of the child’s developmental needs and on-going care and contact arrangements.
Assessing the child’s developmental needs means that the care arrangements can meet the needs of ’this particular child in this particular family’. I submit that a key component of the best care arrangement for a child is one which ensures that a child’s development needs are met. It is open for a psychological assessment to identify those needs, the parents’ ability to meet those needs and what is required for a child to best develop.
I further recommend this section be extended to reflect sections 178(2) and (3) of the Children, Young Persons and their Families Act in respect of parents/potential caregivers.
I submit it is incongruous for the court to be able to request a report on the parents under s178 but be restricted under s133 to reports on the children. It is not uncommon for the intent of section 133 reports to be to actually assess the parents rather than be purely about the child. This might be mitigated if the scope for assessment as set out in the list in the Bill included a focus on the child’s developmental needs and the ability of the parents to meet those needs but extending the scope to mirror parallel legislative powers makes more sense
I believe it would be of assistance to the Judge to be able to require a specialist be appointed to undertake, for example, psychiatric assessments of the parents, assessments of cognitive ability, alcohol/drugs assessment etc.
I submit that it is unclear whether a “second opinion” might be obtained when a party obtains the second opinion on a private basis (as opposed to arguing the Court should fund a second opinion). It appears to be agin the principle of natural justice to prevent a party from submitting their own evidence. Leave must be available to a person to obtain and present their own specialist evidence and have the full ability to test the evidence of a Court-appointed report writer.
Currently the release of specialist reports is limited. Lawyers may show the report to clients but not permit them to copy the reports. This is because of the sensitive information in the reports. If such reports are to be released direct to parties then there needs to be similar provisions in place to prevent distribution/publication of the reports. Alternatively if a report is to be obtained it could be assumed that the matter is progressing to a defended hearing and therefore lawyer can be involved from that point. Then the lawyer could receive the report and advise the client regarding the impact of the report on the proceedings (as well as maintain the confidentiality of the report).
As an example, I am aware of a matter where excerpts from Family Court affidavits appeared to be posted on an open “lobbying” page on Facebook. It would be concerning if a party to proceedings took liberties with the content of section 133 reports.
H. Section 139A
I oppose this provision. The Family Court needs to be available to make appropriate orders which protect the safety of a child and nurture the child’s well-being. The proposed section 139A is too restrictive given:
- The rate of development in children and how that development might impact on care and contact arrangements. A parenting arrangement suitable for a 6 month old baby will be different from the parenting arrangement for a 2 year old, a 5 year old, etc, a 10 year old, a 13 year old etc. It’s unclear whether a child simply growing up is a “material change” given it is entirely foreseeable as opposed to change which could not be predicted and provided for at the time the order was made.
- The potential for harm to be caused to the parent-child relationship when the care-giving parent intentionally alienates the child from the other parent.
- The risk that arises when Parenting Orders are made without the parties having the benefit of legal advice. For example, the Order is insufficiently comprehensive, fails to address all the issues raised or poorly drafted. Even after a Parenting Order is made parents still argue over what the Parenting Order means. If the order made is imperfect or inadequate then it doesn’t necessarily resolved the dispute.
It might well be appropriate to seek to re-litigate the care/contact arrangement within the 2 year period. This time limit in s139A is at odds with the principle in proposed section 4(2)(a)(i) which encourages decisions to be made in a time-frame which is appropriate to the child’s sense of time. It extends the time-frame for making a new application beyond the child’s sense of time.
The contact needs of a child whose relationship has not been permitted to develop with the other parent are likely to change substantially over a 2 year period as the parent-child relationship grows. It would usually be appropriate for contact arrangements to increase over that 2 year time-frame. It might well be disadvantageous to the child to have contact arrangements remain static for 2 years.
It might be relevant to restrict re-litigation when a Judge has issued a final decision after a defended hearing (presuming this means all relevant issues were thoroughly presented and tested) as opposed to orders made by consent but without the benefit of legal advice.
4. Amendments to Domestic Violence Act 1995
I support the inclusion of financial or economic abuse as part of a definition for “domestic violence”.
I believe that the Court won’t mistake normal “budgeting” or financial stress as “economic abuse.” I have certainly represented clients where job opportunities are sabotaged, their employment opportunities are restricted or access to money restricted e.g. not being permitted an EFTPOS card or earnings being deposited into an account in the other parties’ sole name and that such financial restriction were part of an unhealthy power and control dynamic.
5. Amendments to Family Courts Act 1980
I agree that alternative dispute resolution is beneficial and should be encouraged. I am concerned that the anticipated $897.00 fee will result in restricted access to the service. I am aware that the legal aid thresholds will be used as a guideline for assessing whether the fee can be “subsidised”. I am not aware of the proposed extent of the subsidy. Many of my clients are on a low income. Even a subsidy which still requires a contribution of, say, $150.00 would still place Family Dispute Resolution out of reach of many of my clients. Given the FDR system is intended to be mandatory before certain applications are filed, the service needs to be accessible. Ideally, this means a free service or, if means-tested, where the means-testing is very generous.
There also needs to be a remedy available when one party to the dispute declines to pay a contribution towards the fee (despite being able to pay) or when the other party refuses to engage in the FDR service.
I can compare this to paternity cases I’ve been involved with where one party has refused to pay their half share of the DNA testing costs. Or where counselling referred under the Family Proceedings Act fails because one party refuses to engage. In those circumstances, failure to engage with FDR should not prohibit one party from then moving on to accessing the Family Court as part of the tools available to gain resolution.
I further submit that just as the Family Court will be given power to direct parties back to FDR the Judge needs to be given the power to confirm that FDR is inappropriate for those parties.
Amendments to the legislative framework for the Family Court need to be undertaken hand in hand with a review of the Family Court Rules so that the rules are in synch with the legislation. An example is to review the parameters of Rule 175 conferences.
6. Amendments to the Legal Services Act 2011
I oppose the amendment to restrict the availability of legal aid. The section 7A reforms to the Care of Children Act do not provide a “level playing field” through the removal of lawyers. It creates an unequal playing field where participants who can afford to receive advice and have a lawyer “waiting in the wings” will be highly advantaged.
This might impact on what applications (particularly interlocutory applications) a party files, arguments a party advances, what evidential material they present, how well their information is presented, whether they have an understanding of what will happen within the court process, and what directions might be sought at a Judicial Conference.
I think it is naïve to believe that s7A reforms will mean lawyers will disappear from Family Court disputes and therefore parties won’t require legal aid. Participants with the financial means to access a lawyer will continue to use a lawyer because it will provide an easy advantage.
At the very least, a party should be entitled to receive good advice prior to entering the FDR process. Many parents do not know what their rights and obligations are following separation. A key misunderstanding is often in respect of guardianship rights particularly to prevent a child from being moved away from a district and the impact that inevitably has on the child-parent relationship. If parties are to be expected to negotiate their own solution then they should at least be able to receive advice, including through a legal aid scheme, prior to entering the FDR process. At least then they might know what is a reasonable offer when presented with one through FDR compared with what a Judge might direct if they pursued an application.
The lack of legal advice prior to FDR is a little like expecting a separated couple to sign a relationship property agreement without receiving independent advice as to the effect and implications of signing the contract.
I recommend an amendment to the Legal Services Act so that a grant of legal aid might be made when the parties have “been referred to or are contemplating accessing the FDR service” as opposed to the current requirement which means that the issuing of proceedings needs to be contemplated. Legal aid is not currently available for just “general advice” sessions. A grant of legal aid for two hours of “lawyer time” would mean that a participant could receive advice ahead of FDR and again after the FDR process. For example, advice about converting the agreement into an enforceable order or about what happens next if no agreement was reached at FDR.
It is unclear how people will access FDR. The proposed legislation creates a process and a concept but provides little detail about the implementation of the policy. A good starting point is the Family Court because that is where people expect to go to start resolve a dispute. This would give participants the benefit of the experienced Family Court Co-ordinators and be a natural “triage” for matters which should not go to FDR. A certificate to exempt FDR should be able to be issued by a Family Court Co-ordinator as well as the FDR provider.
EBBORN LAW LIMITED
Erin Ebborn llb
 This is a case where there are allegations of violence within the proceedings but no application has been made for a Protection Order
 This is a matter where a key issue is the mental health of one of the involved parties
 Social-economic barriers include issues like social status, poor literacy, past imprisonment, low education