Promise, pitfalls in Family Court overhaul

Deborah Hart
Deborah Hart
Submissions have just closed on a controversial Bill for radically overhauling the Family Court system. Deborah Hart, the executive director of the Arbitrators and Mediators' Institute of New Zealand, sees much promise but also dangers in what is planned.

An article published recently in Britain's Daily Telegraph about the extraordinarily bitter lengths some estranged couples go to to settle old scores will have come as little surprise to anybody in the mediation profession.

No, not even the story about the angry client who let loose the handbrake of her ex's Mercedes and sent it over a cliff. Or the yarn about the woman who went naked under a fur coat into her (soon-to-be-ex) husband's office, where he was in a meeting with important Japanese clients, throwing it off and shouting, ''This is what he's given up!''

In New Zealand, as in Britain, many of those of us who work in the area see similar episodes - in intensity if not actual detail - within this country's traditionally adversarial system. Which is why, thankfully, both countries are in the process of overhauling their systems.

While some of the more extreme stories about what happens during domestic bust-ups can be darkly amusing, there's nothing funny about what happens to the most vulnerable people so often caught in their wake: the children.

The new emphasis in New Zealand marks the first significant change to the Family Court since it was established in 1981. To be sure, it's about reining in public spending on the current system. But it also comes in the wake of what have been described as ''serious concerns'' raised by the public, judges, lawyers and counsellors during a comprehensive review over the past year or so.

The Family Court has until now handled 65,000 applications a year. That is a disturbingly high number for a country the size of ours. The new system is expected to immediately reduce that number by as many as 4000, as well as cutting the number of children affected by half as much again. Of course, challenges remain, not least the implementation of a new Family Dispute Resolution service, or FDR, which is among the most significant new proposals.

The Government has said the new resolution service will be required in a majority of family disputes before most warring parties have access to the court.

Instead, the emphasis will move to people resolving differences on terms that best suit them, at an early stage, rather than their being compelled into the court system to get their problems sorted out after what can be a long, acrimonious and costly process.

In turn, this is meant to free up the court to deal with difficult cases including those in which the risk of domestic violence is alleged, while many of the more run-of-the-mill cases will enjoy mediated outcomes without the pressures of a judicial presence.

As the head of the largest body for dispute resolution in the country, the Arbitrators and Mediators Institute of New Zealand, I naturally welcome the emphasis on families being encouraged to solve their own disputes, with the associated savings in costs for the Government and disputing parties. But this could be a moment of truth for the professionals we represent.

For one thing, if the service is to succeed, the mediators involved will all need to be highly skilled, not only in the general professional sense but in the specifics of understanding of family violence, cultural needs, child development, family law, dealing with highly emotional situations, power imbalances and knowledge of community organisations and support for families.

The new system, like any dispute-resolution mechanism, does not work in a vacuum. As the 2003 Law Commission into Dispute Resolution in the Family Court noted, ''Parties should enter mediation knowing their legal rights and obligations.''

Indeed, some families will also need counselling to be able to get anywhere at all in the new environment. Another issue yet unresolved: neither legal advice nor counselling is to be funded in anticipation of mediation.

This is really problematic. It needs to be addressed in fairly short order if we are not going to see some of our most vulnerable, especially the youngest, disadvantaged. Overall, though, the news still seems potentially terrific. The proposed new order could not only help empower families to resolve the dispute at hand, but just as importantly, fine-tune their skills for resolving future disagreements.

If it is not well established, however, it will bring increased misery to families, increase the caseload into the Family Court, cost more for the State and increase the store of those out-of-control break-up stories we read and know about. We need to get it right.