MENZ Issues

Legal Aid in the Family Court

Last Wednesday I received a message on my voice mail from TVNZ looking for someone from a men’s group to comment on a recent speech about Legal Aid in the Family Court by Justice Minister Simon Power. Unfortunately, I didn’t get back to them in time to make any suggestions about who to talk to.

Power’s speech, to Otago University Legal Issues Centre on 25th August, was titled Challenging Tradition.

Some of the issues raised by the Minister include:

Here is the section of Simon Power’s speech of most interest to MENZ readers:

In November, I will be reporting to Cabinet on a package of options aimed at bringing the legal aid growth curve back under control while ensuring we maintain access to justice.

One area I’m particularly concerned about is legal aid costs in the family jurisdiction.

I’m concerned because over the past four years the Family Court’s volume of new cases has increased by 5%, while costs overall have increased by 33%.[xii] There is little evidence to suggest that this spending has led to improved outcomes for children or parents.

And I’m concerned because the 2007 eligibility changes put family legal aid on a completely unsustainable spending track.

Over the past four years spending has increased by 51% to $38.9 million.[xiii] Based on current estimates, family legal aid expenditure will increase by a further 59% over the next four years. By 2014 it will cost us $61.2 million.

These forecasts force us to ask fundamental – and difficult – questions about family legal aid. Questions such as:

  • Where do the roles of the state and the private citizen begin and end?
  • To what extent should the state intervene to help solve the many interconnected problems facing dysfunctional families?
  • What additional support services should be funded, and which of these should be overseen and funded by the Justice and Courts sector?
  • Is our system geared to ensure disputes are dealt with as painlessly as possible?

The most significant driver of legal aid costs in the family jurisdiction is care-of-children legal aid grants.[xiv]

These are becoming more legally complex, taking longer to resolve, and are one of the most likely types of cases to require a substantive hearing.

While I accept that care-of-children applications are rarely straightforward, and arise from difficult and sometimes unforeseen circumstances, I question whether it is generally in a child’s or a family’s best interests for disputes to routinely progress to a court hearing.

I’m concerned that our current system may actually be working against the speedy resolution of family disputes. When litigation is readily available as a fall-back option, there is less motivation to resolve matters at the earliest opportunity, especially where there is access to legal aid.

We have to ask whether the system is really incentivised to put children first and the argument second, or the other way around.

Family matters are essentially private. The state’s role should be concentrated on helping families resolve their disputes in a fair and enduring manner that will limit further stress.

Unnecessarily drawing out the court process is in no one’s best interests. It places added stress on children and parents who are already dealing with difficult personal circumstances. It also places an unnecessary burden on the taxpayer.

Some recent changes like the ‘Early Intervention Programme’ have improved the processing of care-of-children applications and have reduced delays.

But we need to create greater incentives to divert cases away from the court and ensure that state funding for family legal aid is not tacitly promoting litigation.

I would like to make it very clear that where children have been harmed or are at risk of being harmed, the state will provide legal means to secure protection. There is no question of that. Likewise, where one party is more vulnerable, the state has a role in redressing that power imbalance.

This Government has put a lot of work into the protection of children and vulnerable parties and I will not undo it. But legal aid was never intended to prolong family disputes.

That’s why I have asked officials to look at whether we can use the legal aid system to incentivise earlier and more enduring resolutions in care-of-children and property cases. This would, in turn, relieve other cost pressures on the system, such as court-ordered professional services.

As well as considering sensible changes to legal aid in certain care-of-children and property disputes, we will look at ways to make smarter use of counselling and mediation.

Other things I’m considering as part of my report to Cabinet are:

  • Using duty solicitors in the Family Court to ensure that those arriving in court get timely legal advice.
  • An expanded role for Community Law Centres as a first port of call for advice on family issues.
  • Greater use of cost orders to deter vexatious litigants.
  • A new merits test for family legal aid to ensure that legal aid gets to those who need it most and where a judicial process is appropriate.
  • Bringing lawyer-for-the-child under the umbrella of legal aid to ensure it is better targeted.

My advice to the Minister

Fundamentally, Courts and Lawyers are part of a system which engage in a conflict designed to produce a winner and a looser. New Zealand Family Law was designed to accommodate exactly this outcome; a Custodial Parent (usually mother) and a Liable Parent (usually father) who paid the bills. This may have been appropriate for the 1970’s, but it does not reflect current child-rearing practices, where fathers often undertake the primary parenting role. Parenting conflicts should be dealt with by mediators rather than litigators, and there should be a high threshold before access to the Court is permitted at all.

Consideration should be given to funding advocates instead of lawyers (at lower rates per hour). These services could be provided by existing organisations such as Women’s Refuge and Union of Fathers.

Decades of discrimination by the Family Court against fathers have raised the expectation of many women (and more importantly, women’s support organisations), that the court will enable the removal of fathers from the lives of their children. While I think this has, in fact, become somewhat less likely in recent years, the perception (sometimes referred to as “the Shadow of the Law”) is the problem. I think the only remedy for this is a new law promoting equal shared parenting as the default position.

Where a parenting conflict can not be resolved by mediation, counselling and support programmes, and the default 50/50 position is not workable, access to a judge may be warranted. In order to resolve situations quickly, there should be a tight, statutory time-frame, with a set number of hours available for legal or other support.

When the Minister promotes fining people who are seen as “vexatious litigants”, I somehow suspect he is not thinking about struggling solo mothers on the DPB being the ones having to pay. Whoever it is, these people are parents with children, who are already stressed and likely poor; so it is their children who are likely to be most affected by monetary penalties. I reckon widespread use of community work sentences would be much more effective, and would better spread the message about attitudes the Courts will no longer tolerate.

I suggest the majority of State funding should be going to parenting programmes and other community support services which assist separated parents to work together rather than supporting them to engage in lawyer-assisted conflict.

Ok, what do MENZ readers think?