The war on the poor has extended its reach to the Family Court. In the guise of protecting the vulnerable and improving the experience of those needing assistance to resolve family disputes the Government has reformed the Family Court fundamentally.
Although the Minister of Justice consulted with an expert advisory group what became clear when the minister’s report and recommendations to Cabinet were released was that that the real purpose of the reforms is to reduce the cost to the state of providing such assistance.
From March 2014 when the reforms come into effect, parents who go to Court for assistance in resolving disputes about the care of their children will not be entitled or able to have legal representation in Court prior to the matter going to a Hearing. There are a number of pieces of legislation and Court rules and regulations over which the Family Court has jurisdiction the main one being the Care of Children Act 2004.It is unrealistic and unfair to expect those in crisis to understand and interpret its provisions.
Before entering the Court system parties will have to participate in Family Dispute Resolution (“FDR”) a user pays system and which will cost parties just over $900. It is likely the cost will be reduced for the poor however the level of subsidy is still unclear. FDR will replace the current system of Family Court funded counseling . Until this year parties with such disputes had access to 6 sessions of free counseling which was often successful in supporting them reach agreement themselves. The 6 sessions has since been reduced to three and in March 2014 free counseling will be replaced entirely with the user pays FDR system.
If matters do not resolve at FDR and parties make an application to the Family Court those with money will be able to instruct a lawyer to provide them with advice and draft their documents.
However those without money will be significantly disadvantaged as their ability to obtain assistance with legal costs will be very limited and they will have to draft their documents themselves. The difficulties for the disabled and those with learning or literacy problems will be enormous.
It is difficult to see how lawyers will be able to meet their ethical obligations in respect of client care given the extremely limited time available and it is unlikely that those who require financial assistance will get an equal level of service as those who can pay for their lawyer themselves. Legal Aid is intended promote access to justice by establishing a system which provides legal services to those without means in an effective and efficient manner. It is of great concern that in yet another arena the poor will be served less well than the rich.
Lawyer for Child will be appointed less often, a move which arguably puts New Zealand in breach of its international obligations under article 12 of the United Nations Conventions on the Rights of the Child, to which NZ is a signatory.
The current obligation on family lawyers to promote conciliation and reconciliation will be removed.
The “Bristol” provisions, which require the Court to do a very specific and thorough analysis of risk factors where there are allegations of violence, have been removed. These provisions were introduced following the 1994 murder of three children by their father, Alan Bristol a man who had been granted custody of the children three months prior, notwithstanding allegations of serious violence by him against the children’s mother.
The Family Court reforms are yet another illustration of the willingness of the government to abandon its responsibilities to the poor and vulnerable. For it to implement these reforms in the name of protecting the vulnerable is shameful.