Antonia Fisher and Vivienne Crawshaw: The Family Court has a backlog of cases but is not broken

OPINION

Anyone newly separated, with relationship property issues to resolve, could be forgiven for having a sense of despair reading recent negative press about the Family Court.

Yet the truth is that the process for resolving most family law disputes works surprisingly well in this country. The lawyers in this area tend to be specialists who do this work not only because they enjoy it but because they are good at it. Some choose to enter public service and later become a Family Court judge.

What is sometimes overlooked is that only a small percentage of cases ever end up in the Family Court. Many are resolved through the private mediation process, which is an effective way for the parties and their lawyers to see whether a compromise can be reached. The mediators are often retired judges or specialists in the relationship property field, as many people prefer to privately settle their disputes.

The cases that end up in a court fall into one of three categories. They are either factually complicated, legally complex or involve parties who are intractable.

Inevitably, there will be complaints because one of the two parties will lose.

While it’s tempting for critics to say the Family Court is “broken”, aside from disgruntled litigants, there are three main problems affecting the court right now.

Our court system is still suffering the ill-effects of the 2014 reforms, which were wrongly based on the idea that the Family Court would function more efficiently without the involvement of lawyers. While those reforms have thankfully been repealed, the court still has a huge backlog of cases.

Secondly, there is a pitiable amount of legal aid available. The eligibility criteria means that only those on government benefits qualify and the rates paid to lawyers make it virtually uneconomic to practice in this area. This has resulted in a considerable increase in the number of self-represented litigants, which places an even greater burden on the system.

Another ongoing problem is the lack of appropriate funding for the Family Court, which successive governments have failed to tackle.

Despite these challenges, in the last 12 months there have been a raft of changes that have resulted in improvements to the operation of the Family Court. Fifteen new judges have been appointed and administrative changes have led to more efficient management of files, with the aim being to have the same judge manage a case from the outset. While there is always room for improvement in the courts, hearings are now being allocated promptly.

Beyond the court itself, one of the main complaints is the need to amend the Property (Relationships) Act, primarily because the 2002 amendments failed to provide adequate remedies to claw back trust assets into the property pool.

The current act deals with both relationship property on separation and also what happens when one of the parties dies. Reform is needed in both these areas.

Last year’s Law Commission report focused primarily on relationship property and not the broader area of succession.

The report on succession has recently been released for consultation and once it is finalised, it will hopefully prompt immediate legislative reform. Clearly, this is overdue and should address many of the issues raised in the recent media articles.

Every judicial system in the world suffers from complaints about delay. The various processes inevitably take time – marshalling evidence, obtaining discovery, preparing affidavits, followed by inevitable pressure on obtaining hearing times.

Family Court judges have the difficult task of balancing the need to progress cases to trial with ensuring that all relevant evidence is available. Often, one side wants urgency, the other wants delay.

These opposing objectives have to be balanced by the judges who have the ability to award significant costs in the case of flagrant breaches of judicial directions.

We have each worked in this field for over 30 years. We have little hesitation in saying that most of the lawyers we work with are experienced, competent and dedicated; they do their very best for their clients. They try to negotiate and resolve cases away from court to avoid the cost, delay and inevitable emotional toll on those involved.

The New Zealand Family Court, for many decades held up as a world leader, is not perfect
but it is far from irrevocably broken as its critics would have you believe.

• Antonia Fisher QC and Vivienne Crawshaw QC are Auckland-based lawyers, specialising in relationship property and trusts.

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