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Family Court reforms a failure: research

With the Government planning to review the Family Court, research has been released by the Ministry of Justice showing the previous reforms have largely been a failure. Shane Cowlishaw reports.

Family Court staff are mired in so much work they are staying late to handle urgent cases, while experienced lawyers are fleeing family law, leaving parents struggling with mediocre advice.

The insights are contained in four pieces of Ministry of Justice research recently released on its website evaluating the 2014 court reforms, which required parties to go to dispute resolution before court and restricted the use of lawyers in the initial stages.

Last year, Newsroom’s series Taken by the State highlighted several problems within the Family Court system including the shocking footage of children being forcibly removed from their homes under an urgent uplift order approved by a judge.

A paper examining the rapid rise of urgent without-notice applications - traditionally used when a child’s safety was believed to be at risk - is particularly insightful.

After interviewing a group of applicants, lawyers, court staff, and judges, the report’s authors found all were struggling in a swamped system.

Many applicants had poor reading and writing skills and, combined with the emotion of the situation, laboured to understand the legal process without the help of a lawyer.

“It was a foreign world to someone like me and probably to a lot of people. Understanding the language and what it means. It’s a foreign language ... but I think the big thing is you just don’t know what to do and what is what, you know? ... [and] it’s like you stumble around in the dark, and the lights are always on low,” one applicant said.

When legal representation was an option, people struggled to find a lawyer as many had left the area of law, while judges said the legal advice available was subpar.

Overall, the research found people were less likely to reach a long-term successful outcome than before the changes were made and that the process took longer.

A shift to out-of-court mediation services had been beneficial for some people, but because the process was not mandatory for both parties a huge number simply did not turn up.

In the 2016/17 financial year, about 1500 mediated disputes were completed. But at the same time there were around 1500 exemptions, mostly because one partner would either not engage or could not be contacted.

Driven to without-notice applications

Since the Family Court changes were made, applications for urgent without-notice applications have risen sharply.

In 2014, the split between urgent and on track applications was 30/70 but that number had now reversed.

The research found this was largely because without-notice applications were viewed immediately and seen as the quickest way to get in front of a judge.

This had created a new “middle ground” and meant other, less urgent cases were pushed to the side, many taking more than a year to resolve.

Judges and court staff interviewed for the research pointed to the strain on resources this had caused, but also the general long-term under-resourcing of the Family Court.

Without-notice applications were given top priority but because there was so many this had placed huge stress on staff.

“Because you are always putting out fires, perhaps even more than anecdotally that’s certainly contributing to the overall age of the cases. Because files that need something done to them are essentially languishing because our focus is elsewhere,” a staff member said.

“When you stood back from it when the law was going through Parliament it was a patently absurd proposition.”

Most were managing between 110 to 130 case files, but on average four to five without-notice applications were lodged each day meaning there was little time for longer-term work.

Often staff would stay into the evening to make sure sensitive, urgent applications were put before judges, many who were also struggling with the high workload.

“In the worst-case scenario, this could create a situation where serious harm could befall an applicant because the application was not seen in a timely manner,” the research warned.

Reform on the way

The release of the reports come as Justice Minister Andrew Little prepares to officially announce a reform of the Family Court.

In a well-signposted move, he will in the next few weeks announce the terms of reference for the review that is expected to be completed in the next 12 months.

Last year, then-opposition leader Jacinda Ardern called the uplift footage “horrific” and reiterated the party’s support for a review of the Family Court system.

At the time, Little’s predecessor Amy Adams also said she had asked officials for answers as to why there had been such a sharp increase in without-notice applications.

Little said he had heard loud and clear about the problems from the legal profession and those who had gone through the system.

“... how can we expect people to make good decisions for their kids when they are in this – not only the emotion of a separation – but 'Shit, I am having to do this Court process myself, and you are asking me what my contact arrangements are going to be like. Are you dreaming?' - Lawyer

It was understandable people were turning to without-notice applications in the clogged court and that meant serious cases that the category was designed for were “being caught up in the morass”.

Removing lawyers from the initial process was a bad move and people had made it clear they wanted the benefit of advice and assistance as they went through the court, he said.

“No one ever wants to get into an I told yourself argument but you could tell it was going to happen … you expect people to have some cursory understanding of their legal rights and navigate their way into the system without a lawyer.

“When you stood back from it when the law was going through Parliament it was a patently absurd proposition.”

Quotes from the research

“... the law, the Courts, lawyers, judges and how it all fits together, how it all works, and then you have the legal terminology – orders, directions, conferences. You hear it, or you read it, and you understand it [at] one level, but you don’t really comprehend it, and you don’t really know what it means. It’s complex and a little overwhelming to be truthful.” (Court applicant)

“I didn’t know what I was going to do. Whether the [gang] was going to come back and whether I could even leave the house. I was considering whether I was even going to leave [the area] to get away from it all ... when you’re not clear about what you want, it’s difficult to fill out the Court forms.” (Court applicant)

“... how can we expect people to make good decisions for their kids when they are in this – not only the emotion of a separation – but 'Shit, I am having to do this Court process myself, and you are asking me what my contact arrangements are going to be like. Are you dreaming?' (Lawyer)

“... here they are [in the] legal process. You don’t fly a plane yourself. You don’t fix your car without a mechanic. What makes you think you can be a lawyer? ... at the end of the day, they are not legally trained, and providing relevant evidence and all that kind of stuff is definitely [about] understanding the law.” (Family Court staff member)

“You come into work in the morning with a plan of what you are going to do and what you are going to try and achieve in a day, and it gets blown out of the water because you get without notice applications coming. So just that psychological effect of making any headway and always treading water is detrimental I think.” (Family Court staff member)

“... we are seeing good lawyers dropping away because why would you want to only get $150 for what used to be six hours work? They have to still be incentivising good experienced lawyers to do this kind of stuff, otherwise really difficult cases are being done by people who don’t know what they are doing.” (Lawyer)

“There is this group that aren’t getting what they need. And you say, yes, it could turn into without notice [but it isn’t right now]. Then one throws a punch and then you know I feel like we are not servicing those clients in the way we should. Because they come in and we can’t help them. That’s how it feels. Just doesn’t sit comfortably I think with all people who do this job because they want to help people. And then that’s your outcome. Just horrible.” (Lawyer)