Save the Family Court

Written By: - Date published: 10:20 am, February 11th, 2013 - 8 comments
Categories: child welfare, democratic participation, families, human rights, law - Tags: ,

The Government’s Family Court Proceedings Reform Bill is receiving submissions until this Wednesday, 13 February.  For a number of reasons this Bill needs drastic alteration.  The women at the Women’s Health Action Trust and the Auckland Women’s Health Centre have put together an excellent document as to why the Bill is headed in the wrong direction (pdf), and shorter (pdf) and longer templated submissions (pdf) against it.  I presume they’ll be happy with me bringing it to a different audience, in a bid to get more submissions against the Government’s Bill.

Rather than me re-hashing the flaws in the government’s bill, let me quote a large section of the document: (bolding mine)

The stated aims of the Bill are to reduce the costs of the Family Court and speed up its processes. The Bill does this by introducing a variety of measures that limit access to the Family Court and simplify the Court processes. Family Dispute Resolution (FDR) Providers will be established to create a formal (privatised) approach to out-of-Court dispute resolution, principally for care of children and guardianship proceedings. Counselling sessions will be slashed from six hours to one. Parties will work with an approved FDR provider such as a mediator, to reach agreements. This will be compulsory. The use of Court professionals (psychologists and lawyers) will be restricted and lawyers for children will only be appointed where safety issues are identified. There are, however, no processes identified in the Bill to identify domestic violence or other problems such as poor or neglectful parenting practices, or mental health or drug and alcohol problems.

The Family Court will be subsidised for those few who meet the legal aid threshold, but will cost approximately $897 per half day for the rest. The costs of these processes will be prohibitive for many women. It will also mean that if a mother wants to progress the safety of her children, and the matter is not considered to meet the criteria for access to the Family Court, she will have to pay to keep her child safe. Furthermore, parents cannot file proceedings until they have been through mediation, so those on legal aid will have no access to legal advice until after the FDR stage.

The removal of the right to legal representation from FDR and the prehearing processes is a breach of human rights. Many people will not be able to complete Court documents or represent themselves without legal assistance for a variety of reasons, including stress, intimidation, language barriers, health, and confidence issues. Access to lawyers will be denied for most disputes over children, even where there is domestic violence, sexual abuse, and drug/alcohol issues. [..]

The Bill provides a separate pathway where abuse is identified, but this pathway is only available where there is “proof” of physical abuse. [..] Restricting mother’s access to the Court and forcing them into mediation will put women at risk and could force mothers to accept decisions that are not safe and/or in the children’ s interests.

The Bill holds the interests of the child as paramount [..] However, it does not state that the safety and enhancement of resilience in children who have been exposed to and/or may be the targets of violence is the most important aspect of children’s well-being. One of the five aspects is the child’s right to be brought up by both parents. Specifically, the principle also states that both parents are to be involved in decision-making about the child. If the parents cannot agree, then it’s off to mediation or counselling, or, rarely, a Court hearing.

Interestingly, Australia introduced shared parenting legislation in 2006. However, it was found that there was not enough judicial attention to the violence of the perpetrator and to the safety of the child. The Australian Parliament amended their law in 2011, strengthening the focus on child safety and domestic violence. The Australians realised that too many children were being exposed to violence; the last straw was an incident involving a five year-old girl who was thrown off a Melbourne bridge by her father, whose previous violence had been minimised and ignored by the Court.

So the legislation seems to copy unsuccessful Australian legislation that has been re-written.  It reduces the costs of the Family Court by putting out of the financial reach of many of those who most need it, and it forces those who’ve been experiencing violence into inappropriate mediation as it’s cheaper.

The templated submissions can give you a start on what to say: the long submission goes through the research evidence and history of why this Bill is a bad idea, the short submission has a beautiful punchiness.

Go ahead – submit and participate in democracy…

8 comments on “Save the Family Court ”

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  1. Afewknowthetruth 1
    11 February 2013 at 3:16 pm

    Since my children were both victims of the utter incompetence of the Family Court and had their lives wrecked by the Family Court, I’d say good riddance to it.

  2. Jilly Bee 2
    11 February 2013 at 3:23 pm

    My daughter has been a victim too – the past 5 years have been a living hell for her and us, her parents, but I don’t know how she would cope without the help of her Barrister, which will probably not happen after October. Her ex knows how to rort the system and deny access of her children to our family.

  3. mickysavage 3
    11 February 2013 at 3:53 pm

    It is an important issue and having seen the damage that can be done by break ups I believe that it is more important than many parts of the court system.

    The current law works pretty well. It is child focussed and the use of professionals means that those inclined to make a mess of things through feelings of hurt or revenge are mostly controlled.

    Sending these cases to compulsory mediation is the wrong thing to do. They will not have the necessary skills.

    Of course there will be a short term saving as the cost of professionals can be cut. But down the line the cost of screwed up lives will be considerable.

  4. RedBaronCV 4
    11 February 2013 at 9:19 pm

    While I applaud your sentiments I really don’t think there is that much to save.
    The Court doesn’t really do anything, although in fairness it has been gutted by High Court decisions.
    It makes:
    – few protection orders compared to recorded assaults, about 3%,
    – has a minimal impact on child support – $1000 per family per annum,
    – arrangements for the care of the children are, as far as we know, rarely kept by “access” parents.
    Compliance with arrangements hasn’t really been studied but the data we have shows that the
    secondary caregiver doesn’t bother to keep court orders for long.
    – intervention focused on primary caregivers is absolutely excessive in many cases. These adults are good enough to care for the children and pay the bills but require “intervention” from around 20 adults telling them how to lead their lives. In some cases the number of “intervenors” can soar up towards the 80 level and many of the “intervenors” are doing little more than co-abusing.

    There is also a huge amount of provider capture with the ADR model and this has really blown the costs out. They are very well paid. This “touchy- feely gang” live on another planet. Their response to “access” parents not turning up is that “counselling will fix this”. Really? If someone isn’t going to turn up to see their kids then why on earth do they imagine they will turn up to counselling.
    Why do we spend $60m on something that isn’t enforced and the majority of offenders are male.

    At the moment all ADR does is give a bully access to their target market with no come back when they don’t keep the arrangements. It’s just a free shot at harrassing the caregiving parent.

    However, the answer is actually really simple. Any care arrangements made have to be kept. There is a financial penalty, $20 would be sufficent, when they are not. A small % of lapses would be allowed per annum. This would get rid of all the parents who have no intention of turning up on day one and leave only parents prepared to be responsible negotiating.

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