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  • Family Court reforms miss opportunity to curb parent rivalalry

    The Government's Family Court reforms have missed a golden opportunity to fix New Zealand's broken family law. The reforms make only narrow administrative changes, leaving us stuck with an outdated model that encourages separating parents to fight, and increases costs for everyone.
    Australia and Britain have recently modernised their family law, moving to preferential shared parenting to reflect the realities of modern life. This new model treats divorcing mothers and fathers as nominally equal parents, who share the custody and care of their children as much as possible. It encourages parents to co-operate and leads to better, long-term involvement of both parents in their children's lives.

    New Zealand still uses the discredited competitive family law model that forces most separating parents to fight for primary custody of their children. It creates winners and losers. Parents must battle to be the one who will get the significant government and private benefits, namely the Domestic Purposes Benefit, Working for Families' credits and Child Support payments, plus not least of all, time with their children. The cost explosion in our Family Court over the past five years is ample evidence our family law has deep policy and management problems. We can't afford such cost blowouts and nor can overseas jurisdictions.

    It is mystifying that the New Zealand Family Court reforms recently announced by Justice Minister Judith Collins focus only on narrow administrative changes, and ignore the overwhelming advantages of treating parents as equals, the best starting point.
    The savings offered by the reforms are surprisingly small (average $17.5 million a year; out of a current total $137m a year to run the Family Court). The DPB with extras alone totals about $2.7 billion a year; this is where the real savings lie. Then, by removing families from the Child Support system, there will be administrative and other savings. It will help mothers and fathers to be able to provide for their kids directly and be more responsible.

    The reforms propose a new Family Dispute Resolution service, which will add a new layer of complexity to the existing three layers in the system of counselling plus mediation plus Family Court. This will result in reduced funds for the current layers. Reducing counselling and mediation seems to be counterproductive as it appears these services have been relatively effective at reducing use of the Family Court (where most of the cost overruns occur).

    The reforms will encourage litigants to represent themselves in the Family Court (instead of using lawyers). This is potentially a good move, but the massive complexity of our family law is a major barrier. The basic statutes run to more than 1500 pages, the Family Court rules to more than 700 pages, and case law to many thousands of pages. Most judges and lawyers struggle with this complexity, and most litigating parents are totally bamboozled.

    For parents who represent themselves, the effort required is humungous. It rarely works for a traumatised parent going through a divorce. However, parents can seek support from experienced independents at little or no cost. The Justice Ministry says it will provide standard formats and help people self-representing. The intent is commendable and deserves support. It might help many middle-class litigants, who can ill-afford a lawyer but do not qualify for legal aid. Such litigants often spend tens of thousands of dollars on lawyers then give up, emotionally and financially exhausted. However, if the ministry is able to reduce everything to such simplicity, why has the Family Court been so expensive and complicated for the past 30 years?

    The Family Court reforms are weak, save little, and ignore trends overseas, importantly, co-operative shared parenting. We must ask why?
    The reforms are taking place at the same time as cutbacks in legal aid, and the introduction of a range of new Family Court fees. Women's groups are expressing concerns that their access to the court will be reduced - an institution they have been mostly happy with for the past 30 years.

    The Law Society is deeply opposed to the reforms; they are shouting in the media at the loss of much of their Family Court business.
    The reforms are tinkering rather than real social progress. They do not address the urgent need to change our competitive family law to a modern co-operative system. It is time for the minister to show she is a real stateswoman and give us a real review on the pressing social policy issues; then make the changes the children and parents of New Zealand deserve.

    Credit- Bruce Tichbon, spokesman for Families Apart Require Equality (Fare)
    Comments 1 Comment
    1. flimflam's Avatar
      flimflam -
      In 2005 the John Howard government moved away from the same out dated system which we still have and moved to a system of shared care - 50/50 model as the start point, assuming there are no care and or protection issues.

      We received an article about this in the Dom Post, the article was about 60mm by 50mm. One week later a full page spread was published by the Dom Post showing a picture of Judge Boshier in what may have been deep thought. The article banged on about the forthcoming reforms and how our Family Court was adopting aspects of the Australian model. The article stopped short of describing how we were adopting the shared care model. I couldn't help but wonder if it was sort of feel good propaganda at that time. The same shield backdrop was used again by the news paper in a later picture and article around 2009 (from memory)featuring Judge Boshier and more er, um reforms. Who was that well known politician who said " The broad masses of a population are more amenable to the appeal of rhetoric than to any other force"?
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