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Chief Judge: ‘Robbing Peter to pay Paul’

A stinging attack by the Chief District Court Judge Jan-Marie Doogue has again highlighted serious problems in the Family Court. Shane Cowlishaw reports.

Judges don’t often speak out about the system, but when they do you know there’s probably a good reason.

In a sharply-worded piece for the Law Society’s newsletter Lawpoints, Chief District Court Judge Jan-Marie Doogue painted a stark picture of the state of the Family Court.

Things were so bad, she announced, that she would be forced to send extra judges to the court, which was under “enormous strain”.

The trade-off? Longer waits in the criminal and civil system.

Her comments follow a speech last year by the top judge herself, Chief Justice Dame Sian Elias, who raised questions about cost-cutting, hasty decision making and a shift in powers from the courts to the police.

The Family Court is in undoubtedly in crisis, struggling under a mountain of work while lawyers flee the area of expertise.

A string of recently released reports from the Ministry of Justice exposed just how urgently Family Court reform is needed, with many of those interviewed complaining that they were expected to navigate the confusing system on their own after law changes that restricted access to lawyers.

Doogue herself pointed in her piece to the impacts of tighter bail laws, which had led to an “unprojected growth” in people remanded in custody

An attempt to reform the court had also led to a surge of without notice applications that had clogged the system, with applicants desperately trying to get their case before a judge.

“Much of the delay has its genesis in the 2014 Family Court reforms which, through a focus on diverting cases to mediation and excluding lawyers, have had perverse outcomes in terms of timeliness.

“As judges, we are acutely aware of the human rights of people deprived of their liberty while awaiting trial, and how this makes the need for timely outcomes all the more pressing.”

Doogue singled out the Family Court as having fallen “unacceptably behind”, with cases routinely taking too long, The workload had become unmanageable with the current number of judges, she said.

“If only intervention were so simple. In reality, application of resources has become more akin to a disheartening exercise in robbing Peter to pay Paul.”

Most applications in the Family Court are under the Care of Children Act. While the overall number of new applications has fallen, defended applications - which took the longest to complete - were rising and had grown by 27 percent in the past two years.

Doogue said these pressures had been compounded by a law change last year that capped the number of judges at 160 and stopped retired judges older than 75 from sitting as acting judges.

The District Court was losing on average one judge a month and had dropped from a peak of 179 last year to 167.

She added: “What is effectively a sinking lid on the judicial workforce is starting to bite … while this is hard on judges and court professionals, it is harder on families left in limbo.”

The impossibility of her situation and a lack of ability to ensure the “orderly administration of justice” was lamented.

“This invokes images of tidy queues that move compliantly at my direction.

“If only intervention were so simple. In reality, application of resources has become more akin to a disheartening exercise in robbing Peter to pay Paul.”

To shore up the Family Court, Doogue will move resources from the criminal jurisdiction adding up to 100 judge-days a month from October.

This would allow for an extra 120 defended Family Court hearings a month but would come at the expense of the criminal and civil courts.

“This is regrettable when we were making a significant dent in jury trial timeframes. The fear is that those gains will unravel as a result.

“However, within the policy and funding framework I must work, this step has become unavoidable.”

There was no choice but to make the move to ensure the public retained confidence in the Family Court, which dealt with the most basic rights of care, shelter and protection for vulnerable New Zealanders.

“Many of those affected find themselves in the court system through no fault of their own; they have committed no crime. They are entitled to certainty in their lives, especially the children.”

Doogue declined to comment further when contacted.