Documentary on NZ Family Court
Radio NZ today played a documentary on the NZ Family Court and the 2014 law changes. It provided some interesting figures and raised (but did not ask) some important questions: We pulled out six issues arising in this documentary and discuss them here.
Issue 1: The encouragement of false allegations
Urgent applications (i.e. without-notice applications) have almost doubled from 600 to 1100 in the 3 years to June 2016, largely because making allegations of violence, abuse or risk now gets you fast-tracked and free Family Court process.
Labour MP Jacinda Adern said
“At the moment, in order to expedite your claim, often there has to, ah, one way is to demonstrate that there are safety issues involved…:”
Well no Ms Adern, no demonstration of anything is required, only allegation.
Ang Jury, Chief Executive of Women’s Refuge, said that the increase in the number of urgent applications reflects how intimidating the Court process can be.
“The forms are big and complicated, and many women would look at those and go “Oh my god, I can’t do this”, they want a lawyer. Now most legal aid isn’t available for on-notice applications, so, if they want a lawyer, really, um, they need to try the without-notice course.”
Ms Jury also claimed that
“What we’re seeing is that women aren’t necessarily identifying what they’re experiencing as abuse and are being put through the FDR (Family Dispute Resolution) process… so there’s not enough knowledge and understanding within the Court staff around the dynamics of violence and abuse.”
So these feminists seem to think it’s ok for women to make false accusations to get their way, and they should be doing this even more often by interpreting a wider range of normal behaviour by their ex-partners as ‘abusive’. Ms Jury’s ‘dynamics of violence and abuse’ of course involve the Duluth patriarchal power and control model, meaning that if any man disagrees with a woman that’s domestic violence.
Minister Amy Adams is certain the increase in urgent applications is not being caused by the changes, but by lawyers. In June, Ms Adams told a select committee
“Simply making an application without notice doesn’t mean it is heard without notice, so the lawyers and the client determine whether they’re going to try that track on, and actually judges are pushing back on a considerable proportion of them and are sending them back and saying “No, this doesn’t need to be without notice. Go back and through the front door.”
Well Ms Adams, we warned you about the incentive your government’s changes were going to provide for litigants to make false allegations. Some of the Family Court law changes were desirable especially in seeking to reduce the involvement of lawyers and in giving the Court more flexibility to protect the relationships of children with both parents. However, the decision to provide free and fast-tracked Family Court processes to those who allege violence, abuse and risk regarding their ex partner was a mistake and has led to huge increases in allegations. Of course lawyers will now advise their clients to make allegations of abuse, especially women who are more likely to be believed by judges on ‘the balance of probabilities’. What did the government expect?
An important question arising here that wasn’t asked in the program is “How many people have been prosecuted for perjury?” The answer will probably be “None” or close to none either before the 2014 changes or after. The Family Court has always excused perjury especially by women.
The program said that Ministry of Justice figures show that in the past 2 years fewer than 400 cases out of the 13,000 filed with the Court have been sent back through what the Minister calls ‘the front door’. So it’s not even true that without-notice cases based on false allegations are being rejected much.
Issue 2: Delays
Time delays usually result in children being deprived for many months and even years of the involvement in their lives by one parent, overwhelmingly often the father. In many cases the father’s contact with the children is restricted to an hour or so per week or fortnight of supervised contact, a demeaning experience that treats him as guilty of being a dangerous abuser even though there is no proof or even evidence of this beyond allegations.
Principal Family Court Judge Lawrence Ryan said:
“We now have the highest volume of aged defended cases, that’s defended Care of Children Act cases over 2 years, the highest level we’ve had since 2011, so they’re climbing steadily.”
Judge Ryan is now sending a ‘floating judge’ to help out in the busiest Courts for a week at a time.
Judge Ryan says the Courts are failing to meet any of the time frames including those for domestic violence. However, regarding getting Protection Orders put in place, there are not delays; he said
“No, they have their own track”
That special track for Protection Orders is essentially a rubber stamping process. Applications can be filed on an afternoon and are then sent out to an ‘E-Duty’ judge for that day who could be anywhere in NZ. The orders should then be made and returned to the originating Court the next day or soon thereafter. This cursory process clearly is unable to evaluate the validity of the applicant’s allegations but simply produces Orders based on the right wording in the application. To make matters worse, that convenient track for making fast Orders does not extend to providing the respondents with any urgent opportunity to defend themselves against the Orders, Judge Ryan admitting that his Courts do not comply with hearing those cases within the required 42 days.
Issue 3: Arrogant assumption that the Family Court is useful.
Judge Ryan said
“A concern is there is a large volume of people who don’t get to Family Disputes Resolution (mediation) and don’t go to Court and we don’t know what’s happened to them. You cannot assume that thousands and thousands of people who would have before the reforms gone to the Family Court, who have disappeared off the radar, you can’t assume that they’ve settled their dispute. We don’t know what’s happened to them and it’s very hard to identify where they’ve gone and what’s happening to those families.”
Judge Ryan here seems to confuse his Courts with some kind of social worker agency that checks on the welfare of broken families. The Family Court has never followed up to check what happens to the couples and families it made orders for. The only time the Family Court ever knew anything further about litigants is when they returned with new applications. The Family Court never had any research process in place to measure the impact of its processes and orders on the lives of the litigants or their children. Men whose ex-partners flouted parenting orders often simply gave up in disgust having already experienced the male-blaming attitudes of the Family Court, but the Court knew nothing of that.
Really, little has changed there., Since the changes there has been no research to check if the agreements made through mediation have endured.
The documentary reported that since the changes children’s involvement and voice in proceedings have reduced. Their views used to be ascertained by lawyers for children but now that only happens in cases alleging violence, abuse or risk. The documentary did not investigate whether lawyers were ever capable of that role in the absence of significant training in child development and communication with children, or the extent to which they communicated children’s views honestly to the Court. Many men reported, and continue to report, that lawyer for children seemed to operate as another lawyer for the mother, and many children have complained that the lawyer did not accurately convey their views. Those issues were not addressed in the 2014 changes.
Issue 4: Lawyers want to continue their lucrative roles in family law
As mentioned above, Minister Amy Adams is certain the increase in urgent applications is not being caused by the changes, but by lawyers.
Law Professor Henaghan said:
“What happens is that even if it doesn’t meet the threshold … for urgent cases, ‘undue hardship and risk’ …judges will still keep it on the urgent track but won’t hear it an urgent case and set it down for directions which means then that the parties come in and, normally the judge will appoint a lawyer to represent the children to check out what’s going on and any issues that need to be resolved, and the lawyers will still remain involved. Some are sent back to the initial process but normally they will always try to keep a lawyer involved so, judges once lawyers are involved are quite keen to keep them involved because it keeps the process orderly and organized.”
“Self-representing litigants are only adding to delays, and judges find it much more difficult to deal with unrepresented litigants.”
The Family Dispute Resolution Service (FDR) costs $450 for each party, i.e. $900. About 60% of cases are fully funded due to the litigant meeting criteria for subsidy, and a further 20% are partially funded. The question arises as to why the cost of this one session of mediation costs so much, more than the previous 6 sessions of relationship counselling (that included mediation). The answer is probably that it is largely lawyers who are providing the mediation.
Minister Amy Adams claims a commendable skepticism concerning the need for lawyers in dealing with relationship and family disputes. She said:
“It’s my clear view that if families can reach their solutions without lawyers that is a good thing. I know the lawyers are absolutely of the view that they should be in the room but as I said it’s not my job to deliver what lawyers want, it’s my job to ensure that this Court system and the justice system is working as well as it can for the families who need help…it’s not my view that the more lawyers you add to the situation the better and easier and cheaper the resolution is.”
However, Minister Adams’ comments may be more populist facade than true intent, because she did provide for lawyers to be involved as long as applicants made up allegations of violence, abuse or risk. She also allowed lawyers to be involved as mediators, and she said she is planning to ‘give more flexibility’ to the number of sessions available for mediation so that the process can continue to run rather than having artificial constraints.
Issue 5: Changes in demand for Family Court involvement and cost savings for the Court.
Any differences in cost of the Family Court since the 2014 law changes have yet to be measured but a report is due later this year.
There seems to be a reduction in cases, the documentary stating
“It’s clear that since the 2014 reforms fewer people are turning to the FC for help. In the 2 years before the law change there were 24,000 cases filed, but in the 2 years since the change the number of cases filed with the Family Court has almost halved to 13,000. According to Amy Adams that’s partly due to a flood of applications before the law change from lawyers wanting their cases heard under the old rules.”
So the lawyers got in while they still could but we will probably see the Family Court harm and impoverish fewer people in the future.
Issue 6: The underlying ideology of family law and whether it’s good for us, our children or our nation.
“Most research shows that for children going through a break up of their parents is a very traumatic and a major event in their lives, and all the research shows that children do suffer. So if we can make this process one where the parents can, ideally, get to a stage where we’ve got arrangements that the parents will accept, that they’re worked through, that they communicate with each other and the children feel supported and loved by both their parents, should all come out the other side alright, but if it’s acrimonious and fights and arguments and continuous then some children who are very resilient will probably still survive that but many children who are not so resilient that will cause impact for, you know, large parts of their lives which … we…want to avoid.”
So although family breakup harms children, the modern ideology is that we should facilitate and sanitize family break up as much as possible. It’s a bit like addressing the problem of murder by helping people to adjust more quickly to it. There is almost nothing NZ does to encourage families to stay together, to provide any support, encouragement or reward for that. Instead, our welfare system, relationship property laws and family law are all designed to encourage and facilitate family break up and making this especially attractive to women.
Well, there’s where the documentary took our thinking. It’s worth a listen. At least it did seek the views of fathers as well as mothers and did not unduly push feminist ideology as has so often been the case.