Report proposes way to evaluate family court reforms

Wed 15 Jul 2015

The University of Otago and the New Zealand Law Foundation have published a report which considers how to evaluate New Zealand's 2014 family ...

The University of Otago and the New Zealand Law Foundation have published a report which considers how to evaluate New Zealand's 2014 family law reforms.

Authored by Megan Gollop, Associate Professor Nicola Taylor and Professor Mark Henaghan of Otago University, the report Evaluation of the 2014 Family Law Reforms: Phase One (February 2015) involved the initial consultation and planning phase for a proposed research strategy to evaluate the reforms. The report encompasses five components including:

"An annotated bibliography of domestic and international research literature pertaining to New Zealand family law research and family law evaluation research.
Ascertaining the existence of baseline data in New Zealand (collected prior to the March 2014 reforms) and its usefulness in enabling pre- and post-reform comparisons
Consultation and liaison with key New Zealand stakeholders
Consultation with international experts and key researchers in family law reform evaluation
Holding a workshop with representatives from the key New Zealand stakeholder groups, to report back on the above activities and gauge sector/stakeholder interest in, and commitment to, an evaluation proposal."

Based on the above information the authors proposed undertaking a longitudinal cohort study by following a large population-based sample of separating parents with dependent children over time. The cohort study would have the potential to:

"Capture longer-term impacts that may not be apparent if reforms are evaluated at only one point in time soon after their introduction
Enable the impact of the reforms to be seen within the wider context of what is happening in the general population of separating parents
Capture the range of pathways that separated families take [...] and the outcomes
Allow comparison of those families who engage with the family justice system and those who remain outside it, and the reasons for this
Find out more about those families who have never utilised dispute resolution processes, or who may have previously done so but are not engaging now that the reforms are in place
Enable identification of pathways that are more or less effective for particular families and circumstances."

The report recommended further smaller-scale studies could also be undertaken by agencies and professional bodies to evaluate individual components of the system at the service delivery level. This could include the Family Legal Advice Service (FLAS), Family Dispute Resolution (FDR), Parenting Through Separation, Preparatory Counselling and the Ministry of Justice website and call centre.

Report author Professor Mark Henaghan said the evaluation will seek to see how stakeholders in the family court are "coping in response to some pretty drastic changes." He said the changes, while driven in an attempt to cut costs and increase efficiency across the board, have in fact "created great costs long term – financially, individually and socially." He said, "The changes were driven by a philosophy that because family law deals with private matters, people should therefore pay for the services themselves. Access is the biggest worry. It’s still very early days and I don’t want to speculate too much. That’s why the research is so important. What’s clear is that parties are all very confused at the moment – whether that be due to clumsy legislation or implementation, we’ll see."

The New Zealand Law Foundation provided funding of $57,000 for Phase One of the Otago University family law reform evaluation project. The second phase, involving empirical research, was intended to start in 2015. In 2014, the Foundation and the Ministry of Justice policy group signed a Memorandum of Understanding to establish a closer working relationship for their mutual benefit.

The reforms also reduced the circumstances in which parties can have legal representation. The Green Party has called for an inquiry into equality of access to justice by Parliament’s Justice and Electoral Select Committee. Green Party Justice Spokesperson David Clendon says "Justice Minister Amy Adams has said it is wrong for someone to receive preferential treatment in the courts because they have more money, but that is increasingly what is happening. The National Government’s reforms to legal aid and Family Court processes are resulting in an increasing number of people being unable to access legal representation."

Perspectives on the family law reforms are discussed in an article in the Law Society publication Law Talk (March 2015):

Women’s Refuge spokesperson Kiri Hannifin says the service raised concerns over much of the Family Court reform proposals before they were implemented. "We have seen these concerns play out post implementation, which is frustrating and disappointing. Victims of domestic violence deserve a safe and effective justice system. We do not consider the reforms to have led to better outcomes for many of the women and children we work with."

Wellington Women's Refuge Manager Philippa McAtee said the greatest issues for people experiencing domestic violence are the out-of-court dispute resolutions services, lack of representation and court costs. She says "The Family Court is one of the systems that doesn’t work well for our clients. It tends to drag them through long, stressful, confusing and costly court processes that doesn’t necessarily keep victims safe, especially when children are involved. [Since the changes] victims have to jump through more [procedural] hoops and mediation out of court can be the worst case scenario for a lot of women in desperate situations. Mediation might be great for families sorting custody issues, but for families who are facing domestic violence, either declared or not, I don’t think it is a good solution because it’s really about pressuring people to agree to an arrangement and sit in a room with their abuser. It seems strange where there is already an unequal bargaining power among the parties."

Andrews Family & Property Lawyers principal Bruce Andrews said "the pressures on the system are now immense." He says "Judges are doing what they can to mitigate the problem by allowing parties to file 'without notice' applications (that should never have been made without notice) and then allowing them to continue on the 'without notice' track which means that lawyers can be involved and the parties don't have to attend Parenting Through Separation or mediation. This of course is 'cheating' the system but is the only way to keep the work flowing through."

Development General Manager Wendy Hoskin of Presbyterian Support Northern, which provides the Family Works Resolution Service, said "We provide a service which is a far quicker process than what existed previously. We think it is good for family issues to be resolved in an out-of-court environment that’s more family-friendly and less adversarial than a court. The out-of-court mediation process reduces stress on families at what is already a difficult time."

Background information on the reforms is available in previous Clearinghouse news stories, including the following: