In response to the Family Court (Family Court Associates) Legislation Bill

Introduction 

We commend this bill considering the workload on the Family court has dramatically increased and that a total 8,051 applications 52% were still active in year 2021 compared to year 2020 where only 35% were still active.1 

Without a doubt we cannot in all conscience dismiss when the public ask us, do you think the Family Court system is in crisis? Simply we would be gaslighting our whānau and communities, if we don’t agree with what they’re saying. Our whānau and communities have gone through several experiments over 4 decades and nothing has changed.   

We agree that the proposed bill might offer some relief and help in reducing the backlog of the active cases waiting resolution. However, there is a need to look deeper into the issue and not only blame the covid-19 pandemic for the backlog of the cases. The Family court system complex flawed processes and laws are another reason for the backlog of the cases.  

Be mindful that the Care of Children Act 2004 mandates that any person considering the welfare and best interests of a child in his or her particular circumstances must take into account— (i) the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and (ii) the principles in section 5;2  

However, this is not the case – the system is alienating our vulnerable tamariki from their whānau for many years and months due to the systemic unduly delays which is resulting in a very detrimental damage on our tamariki and their whānau. The laws meant to protect our children but what is happening now is the other way around and instead the system is causing more harm than good.  

Also, the Family court rules 2002 purpose was made to ensure that these rules is to make it possible for proceedings in the Family Court to be dealt with— as fairly, inexpensively, simply, and speedily as is consistent with justice.3 However, none of the purposes emphasised in the act do apply in the majority of the Family Court cases.  

In 2005 E.B v New Zealand 4, the UNHRC considered that New Zealand had violated the International Covenant on Civil and Political Rights (ICCPR) because the father’s contact application had not been dealt with as fairly, inexpensively, simply, and speedily as is consistent with justice according to the laws. 

Shockingly, 15 years ago the same issues were addressed in E.B v New Zealand, still exists up until today in New Zealand Family court and very little has changed. 

It is a fundamental right that everyone is entitled for a fair hearing and natural justice, regardless. However, our whānau are waiting for years to be heard and to defend the allegations against them in the family court or reach a resolution. Apparently, this sort of delay is resulting in the hearings to be unfair, and it is clearly breach of natural justice and lack of duty of care, therefore the state should be liable for damages and negligence to members of the public.  

Additionally, a recent media article by stuff “Abandonment after despair: How the Family Court process is estranging children from parents had a lot of attention from local and international audiences. I urge every politician sitting in the beehive to read it carefully and put themselves in the same situation of the young father “Sam” who ended his life leaving a note in his garage said, “Fix the Family Court,” 5. We knew “Sam” personally and it is sad to lose such an amazing young man. It is huge loss for his little son and family, and I am sure it will leave a long-lasting scar in his son’s life.  

New Zealand has always a long history of commitment to human rights and fairness internationally … New Zealand has always been a proud leader in promoting the rights of children and families – honestly, we are better than that! 

Lastly, we must reiterate that the New Zealand Family court system is a dysfunctional system since it was created in the 80’s and the same issues had been raised in the 80’s but so little has changed, so when a change will happen? 

Many parents are very concerned about raising their children in New Zealand dealing with an unfair dysfunctional slow system and this is extremely worrying for the future of New Zealand and our communities.  

The Family Justice system independent review panel chairperson and former Chief Human Rights Commissioner Rosslyn Noonan said, “the same issues had been raised in 1987 and she was shocked that so little had changed”. Also, that “the Family court system is no longer fit for a purpose”. 6 

The main question is – when and how the system is going to be fixed? Our families and children have been going through several experiments over 4 decades and that is enough. The system has become increasingly overloaded, fragmented and dysfunctional. 

We do not agree that the family law system is “broken”, as so many like to say; “broken” implies that something can be fixed. The characteristics of our family courts – slow, unaffordable, frightening and adversarial – are intrinsic and, largely, inescapable. The court system is not broken; it’s simply the wrong tool for the job. Our family courts are not, and can never be, fit for the purpose of looking after the best interests of children. There are much safer, better and more cost-effective ways of dealing with the widespread issue of family separation and divorce. 

A fundamental change needs to occur in how we view and deal with separating families. The changes needed are far greater than simply modifying existing laws. If governments are to intervene in the lives of families, they have a duty of care: above all, they must do no harm. The existing system, even if appropriate changes proposed by the independent panel in 2018/19 prior reviews were to be implemented, it will not prevent thousands of children from carrying the scars of family law for the rest of their lives. 

Today’s “high-conflict” parents need help, not judgment or criticism or a parenting contest. Today’s family law professionals need more training to deal with mental health problems. And today’s family courts need to get out of the business of handling parenting matters and focus on handling legal issues, such as policies for determining community property division, spousal support and making protection orders when necessary. The family court process isn’t broken – it just doesn’t fit the mental health needs of today’s high-conflict parents. Lawyers and Judges are not trained and qualified psychologists to deal with parenting issues and the children’s growth and development.  

To keep it short, we have highlighted our position in respect to the Family Court issues in the past submissions to the Justice Committee.7  

We could write 3 or 4 books highlighting the problems in the Family Court and it wouldn’t be enough. The government needs to listen to the people and the Family Court users to come up with some solutions.  

Submissions on the (Family Court Associates) Legislation Bill 

We commend this bill considering the current workload on the Family court has dramatically increased in the past 2-3 years and due to the covid-19 pandemic. The current workload on the system was not just created due to the covid-19 pandemic, but because the processes of the Family Court system are flawed and dysfunctional. Also, the system is open for misuse and vexatious litigation. We believe that introducing this role might add more complexity to the proceedings – in particular when any of the parties involved files an application to review an FCA decision.  

We believe that approaches that preventing or arresting the problems of litigation at the early stages is more appropriate and that there is need to tackle the cause of the problem from its roots. A focus on whānau-community-focused early intervention and prevention initiatives, rather than on treatment after a CRISIS has developed or hiring more Judges to do the job, is both socially and economically more effective in the short and long term. 

First and foremost, what is needed is to reduce the workload on the Family Court instead of adding more Judicial officers. There is a need for whānau and community-focused initiatives to help reducing the number of cases in the Family Court at the early stages of separation and encouraging amicable out-of-court resolution. It would be in the best interests of our whānau and children.  

The focus should be on filtering the applications filed in the court and the possibility of resolving those disputes out of the court. The current FDR system is not working how it should. Now many people are just able to initiate meritless vexatious applications in the court and the court registry just accept the filing without even looking at the possibility of encouraging parents to resolve their disputes out of the court.  

There is a need to have whānau -community focused prevention and intervention services to help parents resolve their disputes out of the court. Such services might include, educational resources and information, awareness about the consequences of adversarial separation and high parental conflict early prevention. This sort of initiatives would reduce the workload on the Family court and save our children and families.  

7A (4)(a) – Appointment of Family Court Associates 

We believe that the person may be appointed as Family Court Associate must possess some qualifications or training as a mediator, due to the fact that the Family Court Associate need conduct settlement conferences to help parents reach an agreement. Also holding 7 years a New Zealand practising certificate as a barrister or as a barrister and solicitor should be specialising in Family Law not any other jurisdiction as emphasised by the ACT party.  

7D – Transfer of proceeding to Family Court Judge 

Section 7D(2) We are concerned about the issue of transferring the proceedings between the FCA and Family Court Judge, which might cause further delays in the proceedings. Also, this process might allow more vexatious litigants to prolong the proceedings.  

21 Section 59 replaced (Court may order supervised contact) – Replace section 59 with: 

Subsection (4) of section 59 addition is only focused when an interim parenting order exists and needs to be “varied”.  

Sometimes, when a Family Court Judge grants a without notice temporary protection order in favour of the applicant, the order will automatically apply for the benefit of any child’s of the applicant’s family until the child ceases to be a child of the applicant’s family or the order sooner lapses or is discharged the protection order usually applies.8 It is very common for Judges not to make interim parenting order when an ex-parte protection order is made and sometimes they make orders for the respondent to undergo supervised contact with the concerned child without any referral.  

Many Judges often grant without notice protection orders for the purpose of “ensuring smooth separation” and on many occasions they state: “I will leave it for the applicant to sort out the contact between the child and the respondent” “Both parties to reach a mutual agreement to sort out the contact”. We have dealt with many of those cases and the consequences of such decisions were alienating, extremely, disempowering and damaging and very detrimental to the respondents and the children involved.  

Then the respondent and the child are left hanging there with no contact, until the respondent files an application to undergo supervised contact with the concerned child (request referral + order for supervised contact. We have dealt with many several cases and sometimes it takes up to 1-3 months for Judge to make directions for supervised contact between the respondent and the concerned child or even make referral to supervised contact pursuant to section 60 CoCA 2004. We believe that a long wait such as 1-3 months is inappropriate to the concerned child’s sense of time and would cause prejudice and unfairness for the respondent. This period of time when a child has no contact with the respondent is a very important and a decision must be done within a time-frame suitable for the child. Based on our experience, the court take the matter of re-establishing the contact between a child and a respondent very lightly and we have evidence support this.  

We propose that in such circumstances the Family Court Associate should have the power to make new interim parenting orders, if none has been made, also should be able to make order for the respondent as follows;  

  1. to undergo supervised contact with the concerned child pursuant to s59(2) 
  2. Also, make referral to supervised contact pursuant to s60 CoCA 2004 and extend the funding for the supervised contact sessions, if required.  

Based on our experience, this step of the proceedings usually takes a very long time. We dealt with parents who did not have any contact with their child over 9 months due to the complex process.  

We submit that the above proposal is consistent with s5e and s 4(2)(a)(i) of the Care of children Act 2004 of the ACT.  

Proposed changes to s59 as follows; 9 

59 Order for supervised contact 

  1. Subsection (2) applies if a Family Court Judge— 
  1. is making or varying a parenting order (whether interim or final) determining the time or times when a person may have contact with a child; and 
  1. is not satisfied that the child will be safe with that person. 
  1. The Family Court Judge may must make an order for supervised contact between the child and that person, and, if the Judge does so, the Judge must specify in the order whether the supervised contact is to occur— 
  1. under the supervision of an approved provider; or 
  1. in the immediate presence of a person approved by the Judge (for example, a relative, a friend of the family of the child, or any other person whom the Judge considers suitable). 
  1. The Family Court Judge may not make or vary an order for supervised contact, if the judge believes that the supervised contact would be contrary to the best interests of the concerned child in particular when serious allegations of sexual or physical abuse against the concerned child.   
  1. The lawyer of the child must facilitate the referral of the supervised contact and attempt to help parents to reach a mutual agreement, if practicable. 
  1. Subsection (4) applies if— 
  1. an interim parenting order has been made or not; and 
  1. the parents of the child in respect of whom the interim order is made are parties to the order; and 
  1. under the interim parenting order one of the parents (A) has neither the role of providing day-to-day care for, nor contact with, the child; and 
  1. the other parent (B) is not satisfied can provide new evidence that the child will not be safe with A or 
  1. if parent A has evidence that the child will be safe in his/her contact taking into account s5A of the ACT. (after 5-6 sessions) (supervised contact report) 
  1. A Family Court Associate may have the power to vary an existing interim parenting order or issue the a new interim parenting order to provide that A have contact with the child pursuant to s59(2)(a) and (b) under the supervision of an approved provide— 
  1. on an application made by A or B or A and B jointly; or 
  1. on an application made by the lawyer appointed to represent the child that is undefended. 

Section 31 – Section 141 amended (Power to restrict commencement of proceedings if vexatious proceedings previously instituted) 

Restricting a parent from the commencement of proceeding has a very high threshold and it is a serious issue that the court must not make such a decision lightly. Subsection (1)(a) mandates that the restrictions of commencement of proceedings must be done if a person has persistently instituted vexatious proceedings under this Act, so the concerned “person” would have done initiated many applications prior to restricting him or her. We believe that providing a Family Court Associate the power to restrict parents from the commencement of proceedings is inappropriate considering that it is a serious matter, and it is relevant to s27 of New Zealand Bill of rights Act 1990. The court usually doesn’t take such a light decision to restrict parents from initiating applications, unless there is significant evidence that they have initiated applications vexatiously or frivolously under the ACT or have abused the court process persistently 

The Family Court Associate role was introduced to lessen the urgent procedural workload on the Family court Judges. Page 2 under General policy statement of the Bill emphasises that the role of the FCA was made to enable Judges to focus on progressing casework. Substantive decisions in proceedings will continue to be made by Judges because of the social significance of those decisions, the impact those decisions have on human rights, and the complexity of the decisions 

We submit that the restrictions of commencement of proceedings or dismissing the proceedings is a substantive non-urgent decision and that the Family Court Associate shouldn’t have any powers to dismiss any court proceedings pursuant to s140 nor restrict a person from commencing any proceedings pursuant to s141.  

Other issues: 

Considering the difficulty of many parents to appeal Family Court decisions in the appellate courts. The statistics from the High court (year 2007 to 2019) show that only an average of 92 appeals are filed in the High Court from the Family Court (New Zealand Nationwide) and out of the 92 appeals only an average of 26 appeals are allowed.10 There are no accurate figures if these appeals are under the care of the children act or family violence or relationship property act or any other acts dealt with in the Family Court. (Table below) 11 

Be mindful that every year a total of 60,000 application are filed in the family court nationwide. So, the 92 appeals filed in the high court only represent 0.0153% of the total applications in the Family Court. You might think that these figures are very good and that it clearly shows that “the family court is working very well”! 

On the contrary these figures are very worrying and raise a matter of serious concern that there is a barrier of access to Justice and Court in the appellate courts. Also, many lawyers do not accept to appeal some particular Judges’ decision because it is considered as a “career suicide” for them.  

Previous petitions that haven’t been addressed 

  1. Make Parental Alienation an Offence under Family and Criminal Laws 12 – 416 signatures 
  1. Sanctions on parents who misuse Family Court procedures – 1155 signature 13 

Summary:  

We commend that the new FCA role might help in reducing the backlog of the cases that are still active. However, there are wider serious issues at stake. We deal with the whānau on daily basis, and we could write 3 or 5 books about the awful ways how Family disputes are dealt with in the Family Court system. In a nutshell “the system is in a shambles”.  

The Family court system is causing more harm than good on the whānau and has very adverse impact on the children involved. Vexatious litigation is prevalent, anyone can use the Family court as a tool for malicious attacks, vindictiveness and wrongful purposes. The children are used as pawns in the power struggle, resentment of the separated parents and what is sad that the court is allowing this to continue until there is irreparable severe damage on the children and the parties involved. The Family court litigation and the adversarial nature of the system is shifting the parents’ focus on fighting, not their children’s best interests and this often leads to a long-lasting battle. 

Hon Nicole McKee from the ACT party said in her speech about this bill:14 

“That Independent Panel final report on the 2014 family justice reforms was published in May 2018 and they made 70 recommendations – where is the added and updated advice about the recommendations by the panel since may 2018? Where is the analysis to say that the problems identified will actually be solved by this approach and by when? Where are the KPI’s so that we can measure how it is working and if it actually working? 

We agree with what Hon McKee said that we need to know what’s happening. Nothing has changed and it is not getting better. We are reaching our many MP’s and ministers and the usual response “the family court system is under review” and the fact that not one wants to deal with this complex issues, and they would rather deal with small issues effecting the minority. This is unacceptable.  

There is an urgent need to have some whānau -community focused initiatives to prevent and reduce family violence, high parental conflict and vexatious litigation. The family court is a one-size-fits-all system. Parents at the early stages of separation need help and support not only without notice parenting/protection orders against them, which are very disempowering and unnecessary in some cases, where they do not prevent or reduce violence. In many cases the existence of these ex-parte orders often inflames the conflict and cause more damage. 

In broad sense, we must reiterate that the Family Court system will only be fixed until perjury and vexatious litigation are taken seriously – the same way in a any court of law.   

Most importantly that Parental Alienation must be made as an offence under the Family and Criminal Laws15. There should be sanctions on parents who misuse the Family Court procedures. 16 

Using the family court processes for malicious and wrongful purposes is becoming an inter-generational trend passing from one generation to another and this needs to stop. It is one of the major reasons that the family court system is clogged and slow.  

Lastly, it’s the relationships breakdown, high parental conflict and the adversarial separation process that is causing the whole chaos. The presumption that litigation is the typical way of dispute resolution needs to change by educating the whanau and communities and by raising awareness. We suggest that the policies and law makers need to focus more on such intervention and prevention initiatives rather than focusing solely on curing a CRISIS.  

A strong fence on the top of the cliff is much needed, not an ambulance at the bottom of the cliff.  

Zayne

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