SPEECH: Labour's vision for family law – principled, practical, predictable

Family Law Section, Auckland District Law Society

Auckland District Law Society, Chancery Chambers

Thank you for the opportunity to speak to you this evening.

The new family law regime is barely six weeks old, and so it may seem premature or presumptuous to talk about new visions for family law.

But there was enough concern expressed as the new law was being made, and I know there are concerns being expressed even now about the implementation it, that it is right to examine it and reflect on it.

What are the principles behind the changes? What, if any, are the risks – to one or both parties to a separation, to children, to other family members – in the new law?

We opposed the recent changes to family law and to the way the family court must now operate as the measures were going through Parliament. We were, and remain, concerned that the new law will fail to take account of power and economic inequalities between those whom the law is meant to serve. And we are concerned about the loss of the voice of children involved in a separation.

Tonight I want to outline Labour’s thinking about family law, the principles we think are vital, what we think the hallmarks of good family law are, and what this will mean in practice when Labour is in government.

I will not deal with cases involving domestic violence. The new law does not change the way these cases are treated in the family jurisdiction. They go on to the fast track and full rights of representation are accorded the parties and, most likely, to affected children.

It goes without saying that whatever system is in place must screen effectively for cases where domestic violence is a factor.

The first thing to note is that family law occupies a special place in the firmament of our legal system. Its job is to take the complexity and unpredictability of intimate human relations, along with the vast range of personalities, personal foibles and personality disorders that are part of humanity, and try to manage relationship disputes and breakdowns within the rules and principles of the common law and statute law that make up our family law code.

These words hugely understate the task. For most, the end of a relationship, especially where children are involved, is one of life’s most stressful experiences. Usually, at least one party to the relationship hasn’t made the choice to end it. It assaults the sense of self and identity, and it’s a time that carries great uncertainty.

Most people going through the experience grapple with their own grief and emotions, and then have to navigate various procedures and the law.

So, there are two competing elements. Human nature, which is infinitely varied and must be free to make choices and make mistakes, and the rule of law, which is about trying to create order and predictability, not only for those directly involved but the rest of society looking on.

Family relations have been subject to ordering by social norms and expectations for centuries. The institution of marriage started as a religious one in the days when the church was the source of authority in communities.

As the role of the state has grown, especially since universal suffrage, it has become the default authority for and regulator of social norms. Even before the state assumed a greater role in creating social order through its lawmaking power, the common law had attributed legal rights to relationships in the nature of marriage.

The issue is not just the orderly management of a separation. There are other laws reflecting society’s expectations of what will happen between couples on separation: the Property (Relationships) Act 1976, the Care of Children Act 2004, the Guardianship Act 1968, the Children, Young Persons and Their Families Act 1989, etc.

All of this is by way of saying that having rules for the conduct of family relations is nothing new; it is centuries old.

The law has long recognised legal implications for marriage and relationships in the nature of marriage, which of course now include same-sex relationships.

And it is also true the motivations for regulating family relations have changed, from ensuring certainty in property succession to, now, the orderly conduct of couples separating on fair terms and with enforceable rights that survive the separation.

The debate for public policy is over how much the state should intervene. The objectives of intervention are to ensure the orderly conduct of affairs and to achieve some consistency of outcome.

One view is that family relationships are private relationships and it is up to the parties to sort out issues between themselves. The state’s role, at the most, is to provide a forum to settle disputes.

This was pretty much what happened up to 1981. Up to that time, disputes were heard in the old magistrates or Supreme courts. Couples would slug it out in this public forum, and allegations, recriminations and blame were thrown around with gay abandon. It all provided salacious copy for some newspapers, but did nothing for the dignity of the separating couple or their children.

New Zealand’s Royal Commission on the Courts in 1978 had a more enlightened view when it came to family matters. As part of its recommendations on court reform it said:

            … a Family Court should therefore be manned by a team with special skills and training who can deal flexibly with human problems as they arise, relating the client’s particular needs to legal necessities.

            Conciliation should concentrate on helping parties rebuild some degree of relationship so that they can at least discuss rationally any matters arising out of the break-up of the marriage … [and] work out arrangements for the welfare of the children in a way that minimises injury to them.

The state’s interest in family disputes is not just that they get resolved any old how.

Nor is it solely that there is a division of property that doesn’t discriminate against the economically weaker party. It’s equally important that the parties at least have the opportunity to deal with each other in a way that preserves their dignity and the privacy of their affairs. It’s even more important that the emotional and social well-being of children is properly taken into account.

Poor family dispute resolution has the potential to cost the state in other ways in the years that follow, most likely in health, police, welfare and justice costs.

I don’t intend to traverse the history of the Family Court since it started in 1981, but its jurisdiction has grown and it has had to evolve to meet changing expectations.

It is enough to draw from what I’ve said so far the following points:

• Family relationships carry legal implications
• There is statutory as well as common law that applies to family relationships
• When relationships fall apart, there will be corresponding legal implications
• The rule of law means that relevant laws must be applied consistently, and the outcomes should reflect this
• The public interest in the orderly conduct of family separation is in preventing economic inequality, preventing the perpetuation, where it applies, of a power imbalance between the parties, and ensuring the welfare of children is properly taken care of
• The nature of family legal disputes dictates they be conducted in a way that preserves the dignity of the parties no matter how high the emotions are running.

Accepting that even in this area of human affairs there is law and the need for order, the central public policy question is how do we provide for the system to deal with disputes in a way that affords privacy and preserves dignity, but also ensures consistency with the law so that others enter the process with some certainty.

The new law is based firmly on the principle that family disputes are more of a private matter than one involving the public interest. This is made clear by:

• Much more restricted access to state-funded counselling to prepare separating couples for separation and the legal processes they need to go through
• The emphasis on private mediation, including the parties meeting the cost, and that the mediation is not under the aegis of the court
• The fact that in non-urgent cases the family dispute resolution process is mandatory and proceedings will not be accepted for filing until FDR has been attempted
• The shift of more of the cost burden of court proceedings to the parties
• The fact that children have no formal voice in the mediation process.

On the point about children having no formal voice, I am stunned to read in one of the advisory pamphlets advising on the new arrangements the following statement under the heading “how can I make sure our children have a say?”:

            Work as a team with your children to make the best possible arrangements for their future.

Work as a team? Are they serious? This is advice to a couple who have decided their intimate relationship has come to an end and they can no longer live together. They are asked to work as a team.

It is clear from the material I have seen that children are to be relegated in the process. Parents are told to keep their children’s best interests in mind. But this is at a time each parent is most likely in an unsettled, emotional and vulnerable state.

When it comes to actual proceedings in the court, the new section 7of the Care of Children Act creates a higher threshold for appointment of lawyer for the child. The court must have concerns for the safety or well-being of the child and consider an appointment necessary. This does not equate to being satisfied that a child’s interests are being adequately represented in the proceedings without separate representation.

The concern Labour and other Opposition parties expressed in debates on the new law was that the provisions on children may well breach our obligations under the UN Convention on the Rights of the Child. When it comes to family dispute resolution, I cannot see how the new law does not breach our obligations. What happens in court will come down to whether judges look through the words of the Act and  appoint lawyer for the child regardless, because doing so will in most cases be in the best interests of the child.

Possibly the most disturbing aspect of the changes is the denial of access to legal advice, especially for those parties dependent on legal aid. There is an ‘access to justice’ issue here, but it also relates to ‘rule of law’ principles.

For those who qualify, there is access to a Family Legal Advice Service lawyer who, on a fixed fee of $265, can advise a party on how the process works and as much as they can about applicable laws. After that, a legally aided party is on their own until they have filed any proceedings in court.

A party not dependent on legal aid can get more extensive advice.

But neither party can have a lawyer with them during the family dispute resolution process. Possibly, if a party can afford it they can get advice over the phone during the process by calling for adjournments.

The new dispute resolution process is the centrepiece of the family law reforms. It is intended to be the process under which most family disputes will be resolved.

But it is hard to see any justification for depriving parties involved in a dispute resolution process from having access to legal advice throughout. The parties are engaged in an inherently legal process; they are being called on to make decisions that have hugely significant legal effect; and they are being asked to do this without access to a lawyer.

The last significant independent review of the family law jurisdiction conducted by the Law Commission in 2003 (Dispute Resolution in the Family Court, 2003) said this while discussing the importance of conciliation in the Family Court process (paragraph 88):

            All parties should be entitled to basic legal advice on their situation, and clients eligible for legal aid should be able to access this advice before being compelled to use conciliation. … In any case, those entitled to legal aid should be able to get advice at any stage during conciliation and mediation; doing so might well avoid court proceedings later.

A project in the United Kingdom reviewing family dispute mediations, some involving lawyers with the parties and some with no lawyers, showed that a higher proportion of parties in both groups trusted their lawyer more than they trusted the mediator.

Two New Zealand surveys of Family Court participants here show mixed results. One study showed the majority of parties to a dispute preferred it when the mediator was directive and could make decisions if necessary. Another showed highest satisfaction levels when agreement was reached between the parties without lawyers, although the proportion of those who reached agreement with lawyers present expressing satisfaction was still an overwhelming majority.

I understand some of the mediators in the new family dispute resolution service are legally qualified. This will be helpful in some respects, but the mediator cannot dispense legal advice, and there must be doubt even now about how rigorous some agreements will be.

I come back to the point. The agreements to be reached under family dispute resolution are legally significant agreements. Parties should not, as a matter of principle, be compelled into a discussion – more likely a negotiation – without legal advice throughout if they consider they need it.

There is another puzzling aspect to the downgrading of the role of lawyers in family disputes inherent in the new law. That is the requirement that any proceedings that are filed after a failed family dispute resolution process must be filed by one of the parties in person. Proceedings cannot be filed by a lawyer.

The Ministry of Justice, no doubt trying to be helpful, provides a number of precedent documents on its website to assist. One of the forms requires an applicant to disclose the name of their employer, or if they are a student, the course they are studying. Quite what this information has to do with matters is unclear to me.

The template for the accompanying affidavit requires the applicant party to state why they are applying for care or contact arrangements and then later to say why what they’re proposing for the respondent is appropriate for the children.

I have no doubt these are sensible points to cover off in an affidavit, but to a distraught party to a marital separation they also look like an open invitation to vent spleen.

I note that none of the documents on the website are in any other language. It is not clear what those who will be reliant on legal aid will do if there are literacy or language difficulties.

It is clear we harbour doubts about the efficacy of the new arrangements.

There are some obvious risks:

• Parties with access to the barest legal advice will enter agreements they don’t actually believe in because power imbalances are not properly dealt with
• Equally, parties not confident about the legal effect of the agreement they are being asked to sign up to simply refuse so the matter goes to court anyway
• Applications to the court following unsuccessful mediation may be unhelpfully presented and include allegations that deepen the divide between the parties rather than help to resolve them
• Demands on judge time may get greater as they become involved in dealing with matters that have had very little involvement by lawyers.

I don’t rule out there being some positive results from the changes. I also don’t wish to be heard saying everything before these changes was perfectly acceptable. There were issues. There were cases that were tying up court time unnecessarily. There were cases that dragged on for years – not usually cases involving children – without any apparent effort to manage them effectively.

The principal motivation for the changes seems to be financial. The papers presented to Parliament suggested savings of $12-15 million a year are achievable. But in reality, the cost is simply transferred to the parties, and the risks are higher, especially if agreements reached are flawed.

But Labour has some bottom lines regardless of whatever scheme is in place.

The essential principles are:

• Parties must have access to meaningful counselling support to prepare them for proceedings
• Parties must have access to legal advice throughout the process, including during conciliation
• Children must be separately represented, unless it’s demonstrably not necessary
• Lawyers acting for children must meet an acceptable standard in terms of experience, training and professional conduct
• Judges must be able to manage intractable cases effectively.

Parties must have access to legal advice throughout the process, whether it is in mediation or litigation. Parties must be able to be accompanied by someone who is expert in the law.

For the law to work, parties must know what their rights are. Then if they are asked to compromise them or to make concessions, they know what they are giving up or trading off.

We still need the outcomes of our family dispute resolution system to bear some relationship to the law as we have it at the time. Having a system that leads to widely disparate results is no system of law at all.

It is also a bottom line for us that children are separately represented. To do so is consistent with our obligations under UNCROC.

Labour will review the operation of the new Family Court arrangements. We will keep the best of what works and we will institute our bottom line policies.

This will almost certainly mean picking up the cost of legal aid which at the moment is denied eligible parties in FDR. But I am confident this can be found in savings elsewhere in justice.

In the end, we want a system equipped to deal with the fraught and difficult task of helping separating couples, and those in other family situations (such as grandparents and grandchildren) come to the best possible arrangements for their futures.

Any process calling itself part of the justice system must be accessible. In family law it must be practical. And people, and those advising them, must have confidence in a degree of predictability of the outcome.

We look forward to working with all stakeholders in developing a family court system that meets the simple objective – it is just.

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