The Family Court system is not fit for purpose, with the radical reforms of 2014 delivering few of the promised benefits for parents and children and actually increasing delays in resolving disputes, a review has found.
New Zealand Centre for Human Rights Law, Policy and Practice director Rosslyn Noonan led the review into the family court system. Photo: supplied
The review, released yesterday, found the system was not fit for purpose and recommended 70 changes which would cost the government between $18 million and $60m a year.
It cited a custody dispute over a 10-month-old baby that was not resolved until the girl was nearly five - a delay described as typical - and no plans were made for her schooling because the relationship between parents and caregivers failed.
The 2014 reforms brought in by the previous National government put the onus on parents - rather than the court - to resolve their differences, but five years on there's little evidence more families have been able to resolve their problems out of court, or that children are better off.
The delays in resolving disputes have actually worsened.
The panel found the time the court took to resolve each Care of Children Act case increased from an average of 284.7 days per case in 2014/15 to 307.9 days per case in 2017/18, despite the total number of cases resolved decreasing from 9668 in 2014/15 to 8481 in 2017/18.
Rosslyn Noonan, who chaired the review, said the current system made decisions based on the most efficient use of judges and court staff as opposed to the interests of children and families.
"In the Auckland region, if you have a case that is at the court and it requires more than one day's hearing, then it has to come into the Auckland court. So whether you are in the Waitākere court area or the Manukau court area, you have to come into Auckland central. There's no parking, it's very, very difficult to get to," she said.
Wellington Family Court. Photo: RNZ / Alexander Robertson
The panel was also struck by the lack of trust between different professionals in the family justice sector, which Ms Noonan said was operating in silos.
"Currently, there's very little trust amongst the different professionals within the family justice sector. Maybe lawyers and judges don't think that they can rely on the professional mediators, for example. So there needs to be built knowledge and trust about the different roles that people have," she said.
The report recommended a joined-up family justice service that could link different groups like the Ministry of Justice, lawyers, iwi and kaupapa Māori organisations.
It also recommended some Māori Land Court judges also sit on the Family Court to make it more culturally inclusive.
Acting principal family court judge David Smith said he thought the head of the Māori land court might disagree with that given their already significant workload.
"They sit in some of the courtrooms that I sit in from time to time and every time I've talked to them they've been working hard," he said.
"The way things are at the moment I would be surprised if they did [have extra capacity]" - Acting principal family court judge David Smith
The panel called also for a law change to ensure children be consulted and their views be taken into account.
One Wellington woman who was embroiled in a custody dispute with her husband over their eight-year-old son said their child did not have a voice in court.
"That was one of my huge concerns was thinking 'hang on a minute, these decisions that we're trying to make here are obviously going to be directly affecting him, yet he's having no say in what his preferences are from someone who could be seen as neutral'," she said.
"Obviously I was trying to do what I could, but I wasn't a neutral party in the proceedings."
The report called for a legal guarantee that children would be consulted and have their views and opinions heard. Photo: spukkato/123RF
The review suggests rolling back many of the 2014 changes and reinstating free couples counselling, increasing the number of court-directed counselling sessions and allowing children to attend counselling with one or more parent.
It recommended the Family Dispute Resolution mediation service - which currently costs $450 for those not on legal aid - should be made free, and that all parties should have access to a lawyer.
Law Society family law representative Kirsty Swadling said that would be a huge improvement. She said Care of Children Act cases were the only area of court work where parties were prevented from having lawyers representing them.
"It will mean that people will be able to get proper representation right from the start and what the panel heard was that people found it very, very difficult to try and navigate the court system from that early stage, without legal assistance. They wanted to have legal representation," she said.
The review panel hoped that reinstating legal aid and lawyers would reduce the number of without-notice or urgent applications, which have skyrocked since 2014.
The report found the increase was largely because parents feared their case would be delayed if it is not treated as urgent.
Acting principal family court judge David Smith said that needed to change.
"If there is confidence that matters will be heard promptly, then the need to put all these matters on without notice to try and get a boost along will drop, and hopefully the lawyers will re-learn to approach matters in the way they did before," he said.
Justice Minister Andrew Little, panel chair Rosslyn Noonan and panel member Chris Dellabarca. Photo: RNZ / Catherine Hutton
Ms Noonan said there was such widespread acknowledgement that the family justice sector was in trouble - and seriousness of the consequences for children and young people - that the government could not afford to do nothing.
Justice Minister Andrew Little has accepted the report and indicated law change is likely before the next election.
Law professor Mark Henaghan said the family court system was broken and changes couldn't come soon enough.
"Lots of things we did that took away the support that families really needed" - Mark Henaghan
He told Morning Report when the system was reviewed in 2014, cost concerns and family matters being private led to the taking away of resources like counselling and lawyers, he said.
"People weren't allowed to have a lawyer in ordinary cases, so they had to do the paperwork ... had to appear in court themselves.
"We took away counselling which helped people with the emotional issues, we didn't make lawyer for the child compulsory, lots of things we did that took away the support that families really needed."
"The last thing you want to do in a family case is apply to court without notice to the other side only so you can get a lawyer. One thing you do want to do is try and get people talking to each other, working through their lawyers to negotiate.
Pleased with the recommendations in the report, Mr Henaghan said $60m was a small investment "to make sure families settle these things when we don't have problems later on, like children ending up in youth court and all the other issues we have to deal with in society".
Read the full Te Korowai Ture ā-Whānau report: