Joanna Moss: How A Financial Crisis Might Turn Into Much Needed Reforms

The financial blow-out in the Family Court could be a blessing in disguise if the crisis is put to good use in terms of understanding the wider system and bringing in much needed reform. The Family Court is the court that most New Zealanders have contact with either directly or indirectly. It plays an important role in defining what courts are like and how they operate and also in upholding the rule of law. For these two reasons alone we need it to work well let alone considerations of the children and the family as the building block of society.

But let’s take a step back and look into why this crisis happened before we can look at the much needed reforms. Previous Minister of Justice Simon Power ordered the review when it became obvious that the costs had gone up 63% over the period 2004/2010 and the number of cases had remained roughly static. The figures showed clearly that cases were taking longer to resolve and that the Care of Children Act was the chief culprit.

The Family Court ought never to be viewed in isolation as it lies at the intersection of other systems. That is why this administrative review is a wasted opportunity if it does not get to the heart of the matter. The Family Court is unlike other courts, if it is indeed a court in reality?  Some suggest it is really a social agency attempting to solve social not legal problems. Others see it as merely legalising and processing family-related problems having lost its dispute resolution mandate. In future a clarification of the role of the court will be required. But it’s not just administrative processes that ought to be the focus, although improving the processes will certainly help. The Family Court does not exist in a vacuum. How can you challenge administrative processes when the bigger picture is set up to game and not settle, there is limited accountability and there is a lot at stake for those involved as shown below.

Primarily the Family Court links the real economy and the dependent economy with public and private transfer payments sitting behind it namely the Welfare System, the Child Support System, Legal Aid and specialty provider systems plus care and protection and other agencies. So that merely examining the Family Court administrative processes is not enough. There are usually few effective conditions placed upon those receiving the transfer payments, so little incentive to be accountable and act in the best interests of children. Currently the system provides perverse incentives on court service providers to increase the number of cases, drag out cases, to make them more complicated and to prevent settlement.

Essentially this funder system can also distort the outcomes in the Family Court as people position themselves to receive state and private handouts to their advantage. Many of these benefits are tied to the children – so whoever holds the baby gets the purse. So what might happen if these links were taken away in the Care of Children Act and say relationship property proceedings for example?

When most ordinary couples with children separate they privately negotiate a settlement and work out care arrangements to suit themselves making alterations as situations change using negotiation and mediation at their own cost. This is often shared parenting at work. They are forced into a working relationship primarily because they realise they cannot afford or do not want to go to Court. They are also mindful of the huge potential cost and emotional minefield they could encounter. Legal and court costs plus the emotional barrier act as effective mechanisms for encouraging both settlement and a working relationship. They know the only assistance they can receive from the Court is some counselling, typically six sessions. The risks posed are great.

Our goal should be to encourage parties to settle disputes themselves and not seek a role for the state. This is why WINZ benefits or child support and thus free or subsidized legal aid accruing to one party and not the other can distort this process not just to settle a dispute, but also to have an ongoing working relationship simply because the incentives to stay out of court and to do right are just not there. Any behaviour is acceptable and the state continues to pay regardless. For the other side the injustice keeps mounting especially if they are forced to bear court costs and potentially unlimited legal costs on top of child support payments. Often it seems that what you receive for free you do not value. Note that transfer payments for child support and assistance can be made privately or they can use the state’s IRD Child Support systems, so that there are options with enforcement regimes in place. In shared parenting arrangements there might be no transfer payments required making it even simpler.

What would happen if when couples separate the law said that only victims of provable domestic violence would be eligible for state benefits as was the initial rationale for the DPB? Then the Court would be freed up to use its time to act as a real court, to push parties towards self-created solutions and to enforce orders provided the judges were willing to do so. Case law suggests this is sometimes a problem.

One key issue in the review must be determined; if the state plays any role in private disputes of this nature, does it really have to be in an expensive court forum and how far should the state go in providing ancillary services? Do current court processes only delay settlement and thereby add to the cost? The review document suggests a family tribunal akin to the Disputes Tribunal is a preferred solution.

Now examining domestic violence we know that we have a big problem in this area in NZ. But who is asking the question about whether the Domestic Violence Act is actually working and whether handling domestic violence through a very expensive court process is the best way to deal with it? What other options might there be? Imagine if you asked a victim of domestic violence “would you prefer to have some money to help you leave and set up home elsewhere or do you want to spend the equivalent sums on Family Court domestic violence processes”? It’s a no-brainer. Keep in mind that the criminal courts deal with domestic violence as well as the Family Court and the Family Violence Court.

But what of the people who provide specialist services to the Family Court – their costs have also blown out. These are the people that Justice Minister Judith Collins refers to as the “hangers on” such as psychologists, counsellors and counsel for child. What value for money or more importantly value for the family do these people actually provide and how much real training and expertise have these providers got? Given the confusion over the Counsel for Child objectives is it time to dump these services or re-evaluate them? Should all this money be spent on psych reports evaluating children and not in helping them with their problems and adjusting to the new realities. Ongoing disputes create further psychological damage, so the state should focus on stemming the disputes and not letting them drift. Has charging the state by the hour only provided an incentive to do more work in cases in a “make work” scheme?

Maybe we need to stand back and say we are trying to help families and not just process people through legal processes. Have we got lost in the process? When it began 30 years ago the Family Court was never meant to be a den of legal processes. Quite the opposite it was designed to be a place where such things were singularly absent.

There is no question that public perspectives of legal aid as being free and available and certainly not a loan to be repaid have hindered efficient and effective court processes and encouraged ongoing litigation. Many of our public services are deemed “free” and yet they are not free at all. The government’s role in the issues facing the Family Court needs to be re-examined. Most people recognize that access to our courts in general is only for the really rich and very poor. Should the same premise apply to the Family Court? Is that really a satisfactory solution for a society wishing to uphold the rule of law? The Family Court review must look beyond merely examining the administrative processes and ask who are they really serving and how effective are they being in totality?

Maybe the Family Court is merely mirroring wider problems in society and more fundamental questions need to be asked in a wider context.

Joanna Moss is a social policy analyst with particular interest in the Family Court. Through her work she has acted as a McKenzie Friend and supported mothers, fathers, grandparents and a foster mother going through Family Court proceedings. She has been able to combine hands-on exposure to court issues as well as appearing before Select Committees on Family Court matters over a ten-year period.