2. Make duty lawyers available
A number of litigants in the Family Court choose not to, or cannot afford to, have legal representation. Self-represented litigants’ lack of knowledge of the relevant law and legal processes can mean judges have to spend additional time explaining matters to them.
In the Criminal Court, duty lawyers are available to assist those without legal representation by, for example, letting the defendant know what information the judge will want when their matter is called, providing advice on next steps (for example, whether to enter a plea or seek further disclosure), and liaising with prosecutors. Duty lawyers could serve similar functions in the Family Court at directions conferences or short hearings. They could provide advice, explain the legal processes, and importantly, facilitate negotiations between the self-represented party, the other lawyer, and the lawyer for a child. A significant amount of negotiation happens outside the court door while waiting for matters to be called by the judge, and it would be beneficial for self-represented parties to properly participate in these negotiations.
3. Make Family Courts available in more accessible locations
Currently, there are only six Family Courts in Auckland, a city with a population of nearly 1.5 million people. For lower-income or unemployed people who may not own a vehicle or computer, holding court events in locations closer to their homes could be the difference between whether they participate in the court proceedings or not. To achieve this, other venues such as community halls could be rented to hold court events such as judicial conferences or hearings.
4. Supply the registry with more resources
Courts in New Zealand are under-resourced. There are insufficient court registry staff and judges to deal with the volume of cases in the court. The result is that urgent applications, such as applications for protection orders, are not always reviewed as quickly as they should be (ideally within hours of being received by the court). Further, some court participants must wait many months to receive judgments after hearings.
Young children have a shorter sense of time than adults. This is recognised in the Care of Children Act 2004, which requires that decisions affecting the child be “made and implemented within a timeframe that is appropriate to the child’s sense of time”. Although this is unspecific, it surely requires decisions regarding children to be made within weeks rather than months.
Many relationship property cases, which are deemed non-urgent, languish in the Family Court system for many months. However, it is important that these cases are resolved quickly too. It is difficult for people to move forward with their lives while they are still tied up in relationship property disputes. A solution would be for all these cases to be reviewed before a judge (or associate - see below) automatically once they have been in the court system for say, 12 months.
5. Appoint specialist judges
Currently, Family Court judges are required to consider all types of family law cases, from care and protection through to complex relationship property cases. However, many family lawyers tend to specialise either in parenting, or relationship property cases. Judges, who are nearly always former family lawyers, may be more efficient if they are able to preside over cases in which they have experience rather than trying to grapple with the full spectrum of family law matters.
6. Ask for feedback after every case
The Family Court provides a service, and like other service industries, should request feedback after every case. This would help identify where improvement is needed in the system.
7. Some improvements on the horizon
A recent bill considered by Parliament, The Family Court (Family Court Associates) Legislation Bill, would go a long way towards relieving pressures on judges once implemented. This bill would see more personnel appointed - and many hands make lighter work. Senior lawyers would be appointed by the court as associates to undertake some of the tasks undertaken by judges, such as appointing a lawyer for child, ordering that psychiatric, psychological, or cultural reports be prepared, setting matters down for hearing, and convening settlement conferences. Hopefully, this bill will be passed into legislation and will take effect later this year.
Another initiative, Te Au Reka, will see the Family Court move from a paper-based system to a digital system whereby court participants can, for example, file documents and track the progression of their case online with the use of online portals.
Conclusion
The Family Court has a difficult but important role to fulfill within society. Any changes that could improve the system should be seriously considered by Parliament (which ultimately has the power to effect these changes).
• Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures.
