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Tue 21st February 2012

Joanna Moss suggests familycaught reforms

http://breakingviewsnz.blogspot.co.nz/2012/02/joanna-moss-how-financial-crisis-might.html

SUNDAY, FEBRUARY 19, 2012

Joanna Moss: How A Financial Crisis Might Turn Into Much Needed Reforms
Labels: Family Court, family policy, Joanna Moss

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.

This is a brilliant summary of the breadth of the problems with familycaught.

Muriel Newman on welfare

Lindsay Mitchell on How welfare harms children

I don’t necessarily agree exactly, but these are articles that bring out many of the issues and I hope that they can assist you to clarify your ideas and make a submission, or two! MurrayBacon – axe murderer.

15 Responses to “Joanna Moss suggests familycaught reforms”

  1. Down Under says:

    Yes there is a budget blow out but it would be naive to believe that the current review intended any more than cost cutting. The family court has been pivotal in undermining public confidence in the justice system in New Zealand and justice full stop. There is no respect for the rule of law, legal right or duty, legal reasoning or responsibility. Any critically examination of the courts operation could not see it as anything other than an instrument of oppression that has no respect for family or children, and only contempt for parliament.
    The Family Court operates in isolation, in a void of law. Its intersection with other systems is confrontational and deceitful and self serving. It purposefully pre determines and produces outcomes for which it has no legal mandate. It is the will of individuals for which there is no accountability. Collectively it uses the closed nature of the court for its own protection, even to subvert the authority of higher courts.
    The Family Court may sit at a financial intersection which reflects in its behaviour, which is an absence of management for which one is knighted. The decisions and financial outcomes are indicative of the Courts preference for the State or Women rather than the welfare of any children that appear in its jurisdiction. Beyond that the court remains unaccountable for the wider social and financial implications of its behaviour. The court has a culture of disrespect for rules and legislation and operates a methodology of engineering an outcome to correspond to any financial incentive, regardless of whether it is actively attached to legislation.
    There is a suggestion that most ordinary couples do not go to court because they are capable or establishing their own protocols around separation. That assumes that all ordinary couples who do not go to court successfully negotiate an outcome which is not true. The court emits its lawless shadow, creating a social climate that does not favour men. It must be taken into account that some of those that choose not to come to court also choose not to be involved in a dispute which has a pre determined outcome. Put simply it is easier to walk away, leave the country and that is well evidenced by the numbers of male suicide and overseas child support arrears. Legal and emotional costs are worn by those that choose to fight in most cases not for money but to keep contact with the hostages taken by the court that decent individuals would refer to as children.
    There is no recognition of shared parenting. Any financial agreement is casual as many have found to their detriment when they have paid twice, once directly to the other party and then through the IRD collection system. Because of that void of legislation behaviour outside the court is often financially motivated, manipulative and destructive.
    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?
    We would start with another round of sexual allegations again.
    Good review – to me it highlights the dangers of relying on polite policy analysis and not reality.

  2. MurrayBacon says:

    Dear Down Under, in line with what you are saying, if Parliament wants judge’s work to be taken seriously, then it should provide a judicial complaints office. It pays top dollar, for a part time job as Commissioner.

    If Parliament doesn’t provide sufficient funding for the investigative staff, then it seems that Parliament doesn’t take the work of judges seriously at all?

    Given that any investigation is closed immediately if the judge retires, it really seems that there is no substance to the Judicial Complaints Office, it appears to involve only signing the annual report once a year and posting back form letters to hapless complainants.

    NZ has never formally censured a judge, yet for our number of judges, based on California or UK rates for censuring and firing judges, we probably ought to be firing a judge every two years and censuring several per year. The fact that we aren’t, either means that we are not investigating their work competently, or that they are perfectly good, in an imperfect world.

    Being realistic about human frailties, we probably have more than 10 judges still working, who should have been fired through the last 20 years. What does this do for maintaining judicial integrity? Given this fact, then we would expect a much higher level of malfeasance in NZ, than in UK or California.

    As speed isn’t important, why don’t we close down the familycaught completely, while we are looking into what should replace it?
    There wouldn’t be any urgency to arrange the replacement, this process could be as slow as the familycaught.

    It seems that Parliament lacks the will to properly look into familycaught. Given the low level of complaints, perhaps this is understandable?

    Alternatively, if we want judges work to be able to be taken seriously, then we do need to get the Judicial Complaints Office working competently. It should be actively, speedily and competently investigating all complaints, as far back as say 20 years, perhaps 30 or 40 years – same as for sexual allegations!

    Should judges be guilty until proven innocent? As they are well trained and have systems supporting them and documenting their work, then guilty until proven innocent seems quite reasonable to me.

    The escape by resigning should be removed. How could such a clause have gotten into the original legislation? Because it was suggested by Law Commission, largely staffed by judges on secondment.

    This suggests that Parliament is too trusting of recommendations from Law Commission. Particularly where there are obvious conflicts of interest, Parliament should be applying more careful wisdom in its analysis of these issues.

    As Joanna Moss has pointed out, a holistic approach to the wider set of social policy dysfunctions will be a large task.

    Peter Saunders has described the German approach to family responsibility:
    http://breakingviewsnz.blogspot.co.nz/2012/01/peter-saunders-nudge-nudge-here-come.html

    I understand that they have similar expectations around bankruptcy too.

    Many NZers might find this social support scheme hard to stomach, but it appears to be an important element of the German employment and financial success.

    IN NZ, many people are taking short term financial advantage of Government social policies, but it seems that it is becoming more difficult to raise sufficient income for Government to pay these benefits out. There is a long time lag, as people adjust their lives, men in particular. As people’s responses to Government policies take effect, will we be able to maintain these generous social policies?

    In the same way, the Government should show its determination to take responsibility for familycaught, to enforce standards of judicial behaviour and integrity, by vigorous investigation and teethy response. This should include sorting out old rorts, paying damages when actions by judges were illegal, criminal or unethical. Many of the damages cannot properly be resolved by a cash payment, the damage has been long ago done, suicides and driven away parents are examples.

    If Government is scared to sort out the Judicial Complaints Office, then the only remaining option is to privatise the work of judges, remove all secrecy and have problems from judges sorted out by Fair Trading Act – just as everyone else does.

    Controversy follows coin flip by judge

    February 4, 2002, 10:04 AM

    TRENTON, Mich. (AP) — A Family Court judge is being criticized for flipping a coin to decide where children of a broken marriage would spend Christmas Day.

    Norman Bresinski, of Trenton is the children’s’ grandfather. He is threatening to file a judicial misconduct complaint against Wayne County Circuit Judge Helen Brown for flipping the coin at a Dec. 14 court hearing.

    The coin toss determined that Bresinski’s granddaughters would spend Christmas with their father.

    “In 22 years of being in local, state and federal courts, I’ve never seen anything like this,” said Bresinski, a former police sergeant who is now a plumbing contractor. “She made a mockery of the judicial process.”

    Brown, 53, a $139,919-a-year Family Court division judge, wouldn’t discuss the incident. But her boss said she was wrong.

    “Tossing a coin to resolve a parenting time dispute is unacceptable,” Wayne County Circuit Co-Chief Judge Mary Beth Kelly told the Detroit Free Press for a Monday story. She said it displays a lack of sensitivity for the seriousness of the process.

    Detroit lawyer Philip Colista, former chairman of the Michigan Judicial Tenure Commission, said the coin flip violated Michigan court rules. He said judges are supposed to decide issues based on the law, the facts and the best interest of the children — not by chance.

    According to Bresinski and the lawyers who witnessed the toss, Bresinski’s daughter, Elizabeth, and her former husband, David Bousquette, divorced last February after nine years of marriage. A judge gave her custody of their daughters, and her ex-husband received parenting time.

    When she moved to Arizona to accept a new job, she took the children with her. After Bousquette objected, she returned the girls, ages 6 and 7, to Michigan to live with her parents, Bresinski and his wife, Deborah.

    Bousquette then went to court to obtain custody of his daughters. A Friend of the Court referee recommended that Bousquette get custody of the girls if he bought a house and switched to the day shift at Rouge Steel, where he works as a materials handler.

    When Bousquette fulfilled the conditions and told the Bresinskis that he would be taking custody of his daughters, the grandparents filed an emergency motion to stop him until the court conducted a hearing to verify that he fulfilled the conditions.

    Brown decided at a court hearing Dec. 14 that the grandparents lacked legal standing to contest custody and said Bousquette could have his daughters after a series of daily transitional visits. Still, the judge was willing to consider the grandparents’ wishes on where the girls should spend Christmas.

    Bresinski said he and Bousquette couldn’t agree on where the children would spend the holiday. So Brown pulled out a coin, flipped it and told them to call heads or tails.

    Bresinski said he protested, saying he didn’t want to decide the issue with a coin flip.

    But Bousquette called heads and won the toss.

    Bousquette’s lawyer, Ronald D’Avanzo of Southgate, said the judge wasn’t legally obliged to give the Bresinskis any consideration. Besides, he said, the girls spent the previous Christmas with their mother, and it was Bousquette’s turn.

    “I think the judge was trying to get them to work it out,” D’Avanzo said. “I don’t think she did it in any way to abrogate her decision making.”

    The Bresinskis’ lawyer, Gary Gardner of Dearborn, mostly agreed but conceded that the coin flip was a problem.

    “It’s not the way I would have handled it,” he said.
    ____________________________________________________________________

    I would have done better from a coin toss, than any judgements in familycaught. Low cost, quick, no delays while affidavits are rewritten… Also note, NZ judges seem to be much more generously paid than USA judges, don’t know why, especially as USA judges work under a complaints handling system?

    best regards, MurrayBacon.

  3. Down Under says:

    Murray that’s a lot of confusion. What you are talking about is legal integrity which is behaviour within the law. What Joanna Moss is talking about is funding perverse incentives, which do not produce optimific outcomes. (Financial support for the operation of the law.) Peter Saunders is talking about the coercive effect of a law and the consequential outcome. They are intrinsically linked, because every society needs a successful financial model, functional law, and acceptable outcomes. So we have a lame financial model, dysfunctional law, and increasing unacceptable outcomes. So we tinker with the financial model and expect miracles? We hit unacceptable outcomes with a big stick? If you look at the one key issue that Joanna Moss deems necessary to determine it is the cost of the dysfunctional operation of the law, which she rightly points out is the public window to the legal system. Simply starving the beast isn’t going to stop it biting.

  4. MurrayBacon says:

    Down Under, you are exactly right and all of these issues need to be addressed successfully. This is a huge task. Until we do it, we are being our own worst enemy and unnecessarily damaging our children too.

    My comments may have been a bit tongue in cheek, but there is a painful amount of truth in them. Not just truth of words, but damaged family relationships and many damaged souls and suicided souls. Lets sort it.
    Is it better to laugh or cry?

    Cheers, MurrayBacon.

  5. ford says:

    does anyone know how to abtain totals such as total revenue extorted by ird and total given to parents and how much has actually gone into government coffers?

  6. Gwaihir says:

    Official info act should do it Ford, though the question may need to be carefully worded. My suggestion is:- In the 12 months ended 31 March 2012 how much Child support was billed, How much was passed on to the parent, including overdue payments.

    Think carefully, get it in one shot!

  7. Haha, nice! I’d love to see it. Male solidarity.

  8. Gwaihir says:

    Well ask! The Official information act is there to be used. Address your request to the “Commissioner for Inland Revenue” They have got 20 WORKING days to respond, and that response can be a request for more time. Do not be unreasonable in allowing this.

    As Murray Bacon has said, collation of information – or even failure to hold information – is a owerful weapon.

  9. Down Under says:

    You’ll get didley-squat from them. It is better to put your questions to the minister’s office. If Dunne doesn’t want to answer the question you’ve asked they’ll reply by saying the information you have requested is…. and the reply changes the question to the one they will answer not the one you asked. You don’t think they actually there to help do you?

  10. Gwaihir says:

    Refer http://www.legislation.govt.nz/act/public/1982/0156/latest/DLM64785.html?search=ts_act_Official+Information_resel&p=1&sr=1

    Yes they will attempt to massage embarrassing facts. This is the reason the wuestion must be very carefully and tightly phrase.

    All sending it to a minister achieves is delay. The only time I use this ploy is MSD where there is such a labrynth I don’t know where to go.

    You cannot use the act to access personal data! Have a read, its interesting!

  11. Ford says:

    reading this might give an indication of what the govt recieves compared to parents keeping in mind most of the actual CS payments offset benefits that are paid out
    http://www.stuff.co.nz/national/5835623/Parents-2-3b-in-debt-for-support

  12. Gwaihir says:

    This is a good example of a poor question. The answer tends to reinforce the “Deadbeat Dad” image. We want to emphasise the level of penalties and even maybe and maybe even how much even reaches the child. As I say the question needs careful consideration.

  13. Ford says:

    #12…an equally poor response

  14. MurrayBacon says:

    Ford #5 The information that you have asked for is available on the IRD website, in their Annual Report. Look to page 41 Child Support.
    IRD Annual Report 2011

    I spent 15 minutes looking through the report, but I wasn’t able to find the cost of running IRD CS. I believe that it is over $100 million per year and takes up effectively half 50% of the Government revenue from Child Support from NCPs where the CP is on DPB.

    By comparison the IRD points out that their average cost of collecting revenue, is a little under 1% of the total revenue. This is why many commentators have suggested that IRD CS’s purpose is to abuse NCPs.

    In a similar vein, before making an Official Information Act request, see if you can find the information in their website and annual reports. (Also, if wanting info about NZ Government, if you are expecting some difficulty getting the info, search Canada, Australia, UK and USA for their information. They are more proactive about putting official information onto their websites. By having a good idea what you are looking for, you can make sure that you word it correctly and it becomes more difficult for the NZ Department to slip off your hook. You will also have a better idea of what is normal and this helps you to know if you are being given the full facts….)

  15. Ford says:

    #14..after i posted my question of number 5,5 weeks ago..i followed a link on here that led me to a site i got a good enough answer to satisfy my curiosty..

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