There is intense background (hidden from the public) lobbying under progress, illegal under NZ constitutional conventions, aimed at protecting the present Government funding of the NZ legal workers and the unmanagement of conflicts of interest.
Those Who Don’t Learn from History Are Doomed to Repeat It – George Santayana
FAMILY COURTS – AN INTERVIEW WITH JUDGE TRAPSKI
NZ Law Journal 21st September 1981 No. 12 1981 page 383 – 386
Judge Trapski, aged 46, is married with five daughters. He commenced his legal career as a legal staff officer with the New Zealand army in Malaysia after which he joined his father’s firm (then Trapski and Dowd) in Mt Manganui. He was appointed to the Bench in May 1972 and after 18 months in Wellington was transferred to Rotorua in January 1974. Rotorua will re¬main his home base. Water (sometimes frozen) based activities — swimming, water-skiing, boating and skiing provide relaxation and he has always been involved in church activities.
In this interview with Tony Black Judge Trapski discusses his Court.
On 1 October the new Family Courts will commence operation under the leadership of Principal Family Court Judge Peter Trapski. Since his appointment earlier this year Judge Trapski has been tramping the country to discuss with those likely to be involved with the Courts how they will operate. In one respect in particular he left no room for doubt. The Royal Commission on the Courts had made it very clear that change was needed. Judge Trapski is determined that change there will be and he is looking to his fellow Judges and practitioners and all others involved to share in making this Court work.
Why the need for something different?
The Family Court had its genesis in the Report of the Royal Commission on the Courts. One-third of the submissions to that Commission were on the topic of family law. All agreed on the need for reform. In other words a lot of people when given the opportunity were saying to the Courts through the Commission — we don’t like the way you deal with our family problems.
In broad terms how will the Family Courts differ?
The substantive law they will apply remains largely unchanged. The main differences will be in procedure and attitude. By and large the parties coming before the Family Court will be people under stress. They will also be people who at the end of the day
will usually need to maintain a continuing relation¬ship, especially where children are involved.
At present these people come to the Courts to have decisions made for them. Under the new structure they will be encouraged to make the decisions themselves through the processes of conciliation, mediation and counselling.
How would you reply to those who say conciliation is a waste of time where the parties are determined to separate anyway?
Simply that they are confusing conciliation with re-conciliation. As was said in the Royal Commission Report, reconciliation is just one possible outcome of conciliation. The purpose of conciliation is to help the parties build a new relationship so they can themselves deal rationally with matters arising from a marriage break-up. I come back to the point made before that most will still need to maintain a continuing relationship, and it is more important to settle the foundations of that new relationship than it is to formally and legally sever the old one.
That last proposition really epitomises the difference between the old and the new approach?
Yes it does.
The Judges in the Family Court will be involved with conciliation?
Very much so. They will chair the mediation conference and that will put them right into the arena.
What is a mediation conference?
Under s 13 of the Family Proceedings Act 1980 a Family Court Judge may call a mediation conference to identify the matters at issue and to try to obtain agreement between the parties on the resolution of those matters. I hope that most cases will be settled by mutual agreement at that stage and that few only will go on to a full hearing.
What will happen at a mediation conference?
Let me go back a step. Proceedings before the Family Court will be commenced by a very simple application form which will briefly set out, as in the case of divorce petitions, who the parties are, the facts, the statutory grounds, and what is sought. It will not be supported by affidavits as at present.
Because those lengthy blow-by-literal-blow marriage histories add very little, sometimes nothing, to the proceedings — after all, what empirical evidence is there in a custody dispute? — and only serve to focus attention on all that was bad in the marriage. They are a focal point for continuing dissension, and all committed to writing.
end of page 384
The mediation conference will provide an opportunity for the parties to get together with the Judge to sort out what the dispute is really all about. I emphasise that the conference is for the parties and provides an opportunity for them to tell the Judge what they want him to know. It will not be an opportunity for them to argue with each other.
Do you mean they may not be legally represented?
The Act specifically authorises legal representatives to be present to assist and advise parties. They do not have to be there.
That is not to say lawyers are unwanted. On the contrary they have a valuable function. In cases where they appear I believe they will perform this function best by recognising that the needs of parties for assistance will vary, that an important objective of mediation is to enable the parties to reach agreement themselves if at all possible, and that they will help best by taking a less prominent part in the proceedings than would be the case in other Courts, and leaving matters as much as possible to the parties.
What will happen in a mediation conference?
Procedures will be informal and the conference will take place in a room that has none of the trappings of a traditional Court-room. The parties and the Judge will be seated at their own tables with a
stenographer off to one side so there is no distraction or interruption in the exchange between Judge and parties. Wigs and gowns will, of course, not be worn by anyone and all will remain seated throughout. Basically the parties will simply be invited to tell their story.
The Royal Commission Report refers to specialist Judges, and from what you have said these Judges will function in a different way from others. What qualities do you look for in Family Court Judges?
I look to those who have a proven performance in the field and who are known and acceptable to those involved in family practice. They must be 100 per¬cent committed to counselling, mediation and a non-adversary approach, and also to the development of a Family Court system that is uniform throughout the country in its procedures.
The last point raises the question of judicial in-dependence, does it not?
In no way. Uniformity of practice and procedure does not impinge on independence. It is merely a means of ensuring everyone knows the form proceedings will take throughout the country, and therefore does not feel uncomfortable in the Family Court. Of the Judges prepared to accept Family Court responsibilities, all have accepted those qualifications as being desirable.
Family law practice is accepted as stressful and emotionally demanding. Will Family Court Judges have relief?
Yes. 25 percent of their time will he spent in the general jurisdiction of a District Court for just that reason. They will also be encouraged to take time out and return to “ordinary” work for a period.
As well as specialist Judges will you also be calling on specialist support services?
Of great importance will be those involved in counselling and in conciliation. But other experts I would look to include are psychologists, psychiatrists, paediatricians, accountants — essentially those whose expertise can aid the parties to resolve their problems.
Are these people willing to participate?
The response from these professions has been excellent. There is great enthusiasm to work with the new Family Court.
You include accountants. What have you in mind there?
Problems arise in property and maintenance that are outside the ready skills of most Judges and the legal profession. I believe independent accountants can be of great value in a number of situations. For exam¬ple, where small businesses are involved, and the very common case where one spouse has possession of the family home, but the other wants some money out. What then becomes a fair division in the light of inflation, how is this best achieved, and how does it bear on maintenance?
How will these specialists relate to the Court? How will their reports be dealt with? Could you comment first on conciliators and counsellors?
Counselling will work or else it will not. Apart from the result — success or failure — they will not re-port back to the Courts. The parties’ confidences must be respected. It would be wrong for the Court to obtain a report from a person involved in counselling without the consent of the person counselled.
And where a report is called for— on children for example?
In this case what is being sought is an objective appraisal by a specialist. The report would form part of the evidence to be used in mediation. The parties would see it and it would provide a discussion point.
And at the hearing of the case?
The author of the report would give evidence and be subject to cross-examination.
He will be appearing on his own and not under the wing of counsel?
Yes. But bear in mind that we are moving from an adversarial to an inquisitorial approach, with the Judge taking a more active role but still maintaining his independence and more importantly being seen to maintain it.
If cross-examination showed up shortcomings in the report, would the author have an opportunity to restate or revise his opinion?
Where necessary he could well be asked to present a supplementary report covering matters raised at the hearing.
end of page 385
Are you to some extent cutting through the myth that a Judge knows only what is clearly explained to him three times in Court?
You could put it that way. I think the Family Court Judges will be well able to evaluate a report but especially in the light of cross-examination.
The Judges will need to be conversant with the different disciplines?
Who will pay for these specialists?
The Court has power to order payment by the parties. I envisage this power being used more frequently, as the services will be for the positive and long-term benefit of the parties. I think it is reasonable that they, rather than the State, should foot at least part of the bill in many cases.
It has been suggested that this move to conciliation and the use of specialists will rob lawyers of work. What do you think?
I would rather look at it as relieving lawyers of responsibilities that have been thrust upon them because there has been no one else. It will better enable each specialist, including the lawyer, to operate effectively in the areas in which they have been trained. This should also lead overall to better economics. The task of lawyers in the mediation conference to assist and advise the parties really focuses on two important roles of counsel.
How will the parties know what is going on?
Both spouses will be informed irrespective of whether they have taken formal steps.
And what of dissolution? Will it be by post?
The dissolution of a marriage is a milestone in a person’s life. I believe both spouses should have the right to be present when the marriage is dissolved and should be informed simply and clearly of the event. It is not necessarily a case where a legal representative need be present. I certainly consider the old system whereby, in an undefended divorce, one spouse depended on the other spouse’s solicitor for information to be unsatisfactory.
How will the interests of children be looked after?
The Court has power to appoint counsel to represent children.
In the past there have been different practices as to the appointment of counsel with the power to appoint being exercised more generously in some centres than in others. How will the Family Courts operate?
The Family Proceedings Act directs the Court to appoint counsel to represent a child where it considers counsel should be appointed. I think this re¬quires a Judge to positively consider in each case whether counsel should be appointed and to act accordingly.
When will this consideration be given?
I would prefer it to follow on from the mediation conference. After all the first point to ascertain is whether custody is in issue. But it would also enable a Judge to explain to the parties why the appointment is being made. I think this is important, because counsel representing a child will operate best with the co-operation and goodwill of the parents. It is desirable that he should start off on the right foot.
There has also been uncertainty expressed as to what the function of counsel for the child is. Is he an advocate, an investigator or a mediator? What do you look for?
He or she is a little bit of each. First and foremost he is there to represent the interests of the child. The child is his client and is in the same position as any other client but with some qualification as to how far a child’s instructions are to be followed. Age obviously comes into it and counsel would need to exercise some judgment over this and look more widely at what is in the child’s best interests.
Beyond that his function is to ensure that all relevant facts are placed before the Court. He will need to make his own enquiries and see people such as teachers to get some idea of the child in his or her environment. He would also communicate the child’s preferences to the Court.
It may will be that in the course of his enquiries he is able to mediate suitable arrangements for the child.
So overall he is advocate, investigator and mediator and I would add one other function — that of protector. I think it is important that a child be protected from excessive psychological testing and the like.
end of page 386
Practice has differed from centre to centre as to how counsel for the child should be remunerated. What are your thoughts?
I would like to see counsel offered a brief at a fee at an agreed hourly rate according to his or her experience and the needs of the case.
Turning now to lawyers — what do you expect of them?
It is very clear to me that the Family Court must be different. It must be a new Court, not a legal sham; not the old under a new name. So the main thing I would ask is that all who appear before the Court share in my determination to make the Court work along the lines I have described, which is along the lines the Beattie Report recommends.
There will be problems, though — What if a lawyer is instructed to take a hard line by a client who sees an advantage?
If he has accepted instructions then he must follow them. This will not be the only problem either. The eternal conflict between speed and conciliation will remain and there will be others. No formula will cover everything. We must all mould the procedure to suit the individual parties. It is their particular needs that must be considered in the light of legal necessities.
What final word would you have, then?
I would simply ask all who come before the Family Court — parties, lawyers, specialists — to look upon themselves as part of a team formed to solve the problems of this man, this woman and this child.
end of page 387
I have been told that Judge Trapski’s Family Court worked quite well, in terms of serving the public, for about 6 months. Then lawyers realised that by manipulating their customers, they could maximise their personal paramount financial interests. They have been doing this ever since. When he realised that his appeals to legal worker’s integrity and heart got absolutely nowhere, he resigned early as Principal Family Court Judge. The principal familycaught$ judges that followed on from him, have never matched his ambition to serve families well.
This dynamic of rorting customers was well presented in TV1 Sunday Theatre – Who Gets the Dog. In the TV play, the separating parents were refunded their legal expenses, but this very rarely ever happens in the real world. Otherwise, the play presented very well how the lawyers took advantage of their customers.
Professor Sir Peter Gluckman has released his report into Better Use of Evidence by Government Departments, in developing policy. He recommends that The Justice Department appoint a science advisor. I have long been critical of the simple and incomplete nature of Justice Dept evaluations. I am not criticising the staff, but the insufficient funding, staff allocation and time available for doing these evaluations. By short changing ourselves in the development of policy, we have done huge social damage to NZ.
Although the Government has asked for submissions from the public, it has never evaluated the quality of performance in familycaught$. To make productive and safe decisions about changes to policy, we need to confidently know what is working and what isn’t working.
Without this knowledge, any changes are speculative and high risk.
We owe our children better protection than that. MurrayBacon