Childcare Disputes in Court: are Family Justice Reforms Working as Intended?
By Henry Parker
On the spectrum of private matters that flow through the New Zealand Court system, those that concern arrangements for the care of children rank highly in terms of how impactful they can be on the lives of those affected.
In 2014, the Government implemented reforms to family justice, including the regulation of disputes concerning who should have ‘day-to-day’ care of children (formerly custody). These reforms made out-of-court changes such as the introduction of the Family Disputes Resolution (FDR) process and removal of funded counselling sessions. This article concerns two in-court changes which dramatically affected legal representation under the Care of Children Act 2004.
Under the Family Court Rules, the two ways to submit an application to the Family Court for a parenting order are either “on-notice” or “without-notice”. The name “without-notice” is used because the other parent is not told about the application before the judge makes a decision. These are reserved mainly for urgent cases of potential serious injury or undue hardship on the applicant or children in the applicant’s family. As such, a sitting Judge is obliged to accept or decline within 24 hours; a considerably quicker turnaround than “on-notice” applications. The changes to the Care of Children Act in 2014 excluded lawyers from appearing for applicants in the initial stages of all “on-notice” applications made under that Act, including day-to-day care of children. A second change allowed lawyers to represent applicants in “without-notice” applications under the same Act.
The reforms were intended to encourage efficient family justice by discouraging court action for non-urgent care-of-children matters. However, for the many who still wished to go to court, the faster “without-notice” track had become much more appealing due to the advantages of having representation, which include emotional grounding, legal expertise and avoiding the added stresses of having to present one’s own case. Even if a Judge exercised their discretion to direct a “without-notice” application to proceed “on-notice”, the rules meant many could nonetheless keep their lawyer. A research report commissioned for the Ministry of Justice in 2017 shows that prior to the reforms, “without-notice” applications accounted for around 30% of the total number of applications. By 2016, they had reached approximately 70%, despite the substantive application criteria remaining the same.
The impact of the reversed proportion has been more than a name change for both applicants and Judges, lawyers and Family Court staff. The 2017 report identified from interviews with applicants themselves that having legal representation was indeed a key driver in deciding to make a “without-notice” application. An analogy was made with a hospital where patients are first evaluated in ER before being shown to a specialist. Indeed, because a much higher proportion of applicants selected the “without-notice” track, responsibility of triaging applicant’s cases (previously considered by Family Court Counselling Co-ordinators) was determined by applicants themselves. The result has been 500 additional judge sitting days a year allocated to hearing “without-notice” applications. To continue the analogy, a patient is not best placed to determine when they might need the immediate attention of a surgeon. Unsurprisingly, in a significant number of “without-notice” applications, Judges have directed the party to proceed “on-notice” instead (3,445 in 2017).
The resulting inefficiencies in use of time of those involved is one of many concerns about how the family justice regime is currently serving families. This and many other concerns with the 2014 reforms have been captured in a 142-page independent report, released in May last year. The report made recommendations on changes that could benefit family justice and included matters concerning triaging cases and legal representation. It recommended increased responsibility for Counselling Co-ordinators and crucially, allowing legal representation for care of children cases irrespective of whether an application is made “on-notice” or “without-notice”.
Indeed, in our democratic society it may be presumed and even encouraged that reasonable opinions would differ on the substantive grounds and requirements for what a court should consider an urgent application. The statistical and anecdotal evidence from the reports mentioned in this article highlight that many more “without-notice” applications are being made to get legal representation and their collective effect has been to slow the justice available for all involved. This is especially important when that justice dictates the futures of children. At the time of writing, a Bill has yet to be introduced to the New Zealand House of Representatives acting on any of the 70 recommendations of the Independent Committee, though hopefully this will change in the near future.
In the meantime, parents or other guardians experiencing a falling out with a co-parent or joint-guardian over childcare have many options available to them before considering going to court. Some examples include Parenting Through Separation (PTS), FDR, negotiation between lawyers, and various mediation services, all of which have useful information online about their respective advantages. However, for those who have reached an impasse in communication with the other party, the Family Court remains a crucial institution, albeit one which is currently let down by well-intentioned but misguided reform.
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