Justice

‘Monocultural’ Family Court must change - report

New Zealand’s “monocultural” family justice system has left many who go through it feeling disrespected, alienated and lacking in support, an independent panel has told the Government.

The group has proposed the creation of a new, integrated family justice service called Te Korowai Ture ā-Whānau - the most significant recommendation among 70 in total, which may cost between $18 million and $60m a year if implemented in full.

Last August, Justice Minister Andrew Little announced a review of the National government’s 2014 Family Court reforms, saying too many people felt traumatised after going through the current system.

The panel’s report paints a picture of a justice system where “delay is pervasive at every stage”, with judges bogged down by a heavy administrative workload and poor access to legal advice - particularly for those who cannot afford a lawyer.

It highlights limited participation by children in decisions which affect them, a failure to incorporate tikanga Māori principles into family justice processes, and a lack of understanding regarding family violence issues, with some survivors telling the panel their experiences of violence had been minimised.

Many who go through the family justice process feel disrespected and are unprepared for the “cold” legal approach to resolving issues, while services both in and out of court were fragmented and siloed.

“There is a real issue about how alien the current court process and procedures are, certainly for Māori and for others who are not Pakeha - on the whole actually I’d say they’re pretty unfriendly for almost anybody.”

Speaking at Parliament, panel chairwoman and former Chief Human Rights Commissioner Rosslyn Noonan said some who had gone through the Family Court process felt they had been treated like criminals.

“Some people feared talking to us even in confidence, because they believed...if the court found out it would count against them in terms of the care and contact with their children - I don’t think that is the sort of environment in which good decisions can be made.”

Māori, Pasifika and migrant communities had all faced additional barriers to accessing justice due to the “monocultural” nature of the system, Noonan said.

“There is a real issue about how alien the current court process and procedures are, certainly for Māori and for others who are not Pakeha - on the whole actually I’d say they’re pretty unfriendly for almost anybody.”

The 2014 reforms, overseen by Judith Collins, were intended to reduce the costs of the system, stop people going to court unnecessarily and speed up the legal process.

However, Little said while the changes may have saved the Government some money, it had created many new problems for those who went through the system.

The report recommends offering a fully-funded family dispute resolution service - made mandatory in the 2014 reforms, but with a fee attached, for parenting disputes before they could go to the Family Court - as well as removing restrictions that were placed on access to state-funded legal representation.

One family, one judge

For complex cases, the panel has recommended that a single judge (with a back-up) handle all Family Court and criminal matters regarding a family.

Noonan said one family she had spoken to had never seen the same judge over three years in the system, with each judge making a decision based on simply what was in front of them rather than the wider context.

The use of without-notice applications in Family Court proceedings - the subject of scrutiny under the last government as part of Newsroom’s Taken by the State investigation - has also been put under the microscope, with recommendations that would require parties seeking a without-notice order to answer questions about why the action was necessary and whether an on-notice application could be used instead.

Panel member and family law expert Chris Dellabarca said the current without-notice threshold was sound but there were issues with how it was applied, and the proposed changes could “allow a greater level of equilibrium to come back into the system”.

Reinstating access to legal representation for on-notice applications - a right removed in the 2014 reforms - would stop people turning to the without-notice process to get a lawyer, Dellabarca said.

While the use of without-notice applications in uplifts by Oranga Tamariki were outside the scope of the panel’s review, Noonan said she had personally come to the view that uplifts should be “an exceptional situation”.

“It cannot be allowed to continue as it is now, we cannot continue with a monocultural Family Court because it’s damaging to children and young people, it’s damaging to families.”

Noonan said there were other changes that could be made more swiftly to improve the current family justice system, such as providing more judges to the Family Court so they could clear the backlog of cases which had built up.

“For as long as no action is taken, these delays will grow and the backlog will extend.”

Addressing the lack of Māori perspectives in the system also needed to be an urgent priority, Noonan said, noting the panel had found a 1987 report with similar recommendations that had largely been ignored.

“It cannot be allowed to continue as it is now, we cannot continue with a monocultural Family Court because it’s damaging to children and young people, it’s damaging to families.”

Little would not commit to introducing any legislation for broader reforms before next year’s election, saying Cabinet would need to consider the recommendations and receive advice from officials before making any decisions.

However, the Government would look at which recommendations it could act on in the short term.

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