Family Court crisis creates more incentive to use FDR and mediation – to ‘make peace, not war’

It’s a crisis!  There are not enough judges!  Judge time is having to be moved from District Court criminal cases to Family Court cases!  Family Court registry staff are overloaded!

All of this is true.

‘[D]elays in Christchurch are such that a colleague was told on 6 April that if her matter was ready for hearing immediately it was not likely to be heard until the second quarter of 2019.’ – Kirsty Swadling, chair, NZLS Family Law Section, in Family Advocate, Winter 2018.

So let’s use mediation, unless there is an overwhelming reason not to.

The law already provides for mediation, even if the parties do not want it.

And, even if the parties think they do not want it, mediation can be effective.

Not wanting mediation, or thinking it will be pointless, is itself an early stage of mediation, as described eloquently by Gary Direnfeld in his recent blog, ‘Getting Through the 6 Stages of Mediation.’

‘[T]he pre-mediation phase can create the impression that one or both sides will not negotiate in good faith; will undermine the process intentionally; will remain unmovable in their position. It is vital to appreciate that these are the typical conditions through which virtually every separated parent first enters mediation. If not for these conditions, you wouldn’t be considering mediation in the first place.’ – Gary Direnfeld, Getting Through the 6 Stages of Mediation (June 2018).

This article considers the use of compulsory mediation in parenting/guardianship cases under COCA.  A later article will consider its use in care-and-protection proceedings under the Oranga Tamariki Act.

Compulsory mediation in Care of Children Act (COCA) cases

FDR (Family Dispute Resolution) is required – before starting most types of COCA court proceedings – unless an exemption is granted or children will be harmed from the delay.

When it was introduced in 2014, FDR was a bit shambolic. It was under-resourced and inflexible. It was also a symbol of unwelcome changes forced on lawyers and courts by the then government.  Instinctively it was to be avoided.

Four years later, that no longer applies. FDR is well organised (through FairWay and FamilyWorks), well resourced (12 hours instead of the initial 5), and flexible in approach. It follows international principles of best-practice mediation, including repeated and effective screening for cases where mediation is inappropriate. It incorporates specialist  ‘preparation for mediation’ at little or no extra cost to participants. It need not be final – the outcome of the initial mediation can be scheduled for review in (say) three months.

Some lawyers are sceptical about FDR that occurs without overtly incorporating ‘the voice of the child’ through a children’s lawyer, although FDR processes do include the children’s perspective using a variety of tools. The parties can employ their own, joint ‘lawyer for child’ (and share the cost), or agree to the mediator meeting separately with the child/ren, or add a child psychologist to the mediation process, or use other processes depending on the child and the parents’ preferences.

Even if FDR does not occur before proceedings start, or is tried without resolving the issues, it is not too late.

FDR can be directed after Family Court proceedings have started. In these cases, there is usually the added advantage of a court-appointed lawyer for child.

FDR can be directed in existing proceedings even if the parties have already used FDR within the last 12 months.   If the parties have already used FDR within the last 12 months, a direction to FDR can be made only if the parties consent to going back to FDR.

However, if the parties have not already used FDR within the last 12 months, the Family Court can direct them to use FDR even if they do not want to This is what I believe should happen more often.

Such a direction can only be made if the Judge considers that there is a reasonable prospect that FDR will assist the parties in reaching an agreement on the resolution of the matters in dispute. (Care of Children Act 2004 s 46F(3)(a))

Reluctance by one or both parties is not a barrier to a successful outcome, especially if the parties have lawyers who can coach them towards a positive approach to mediation. See Direnfeld blog mentioned above.

Yes, one or both parties may have to pay $448.50 each towards the cost of FDR, if their income is higher than the threshold for government funding.

They may also opt to pay for Preparation for Mediation (PFM) ($258.75 – but PFM is free for both parties if one party is eligible for government funding).

That is a pittance, compared to the cost of legal fees (usually $200-400+GST/hour) and the time/energy/stress of ongoing court proceedings.

If the Family Court directed more cases to FDR, and if family lawyers supported this with appropriate advice and encouragement to their clients, the court backlog would ease without needing more judges.

It’s worth a try.

 

Cheryl Simes

28 June 2018

‘Judge shortage pushing courts to crisis point, New Zealand Bar Association says’, NZ Herald, 28 May 2018

 

Parents in prison can still use FDR (Family Dispute Resolution)

I love Dad

Dad is in prison. Mum wants a parenting order for day-to-day care of the children.

Before she can apply to the Family Court, Mum is required to attend a parenting-information programme (‘Parenting Through Separation’).

She is also required to use Family Dispute Resolution (FDR), to try to reach agreement with Dad without Family Court proceedings.

Huh? But Dad is in prison.

OR – Dad wants to have some contact with his children.  He too is supposed to use FDR before applying to the Family Court.

Again – huh?  Dad is in prison.

Yes, Dad is in prison.

But that’s not the end of the story….

Although Dad is in prison, he can still access FDR – thanks to FairWay, the Department of Corrections, Pillars (charity providing support for children of prisoners), and the commitment of some specialist mediators.

FairWay is the largest FDR supplier, contracting with mediators throughout New Zealand who provide FDR mediation services. FairWay also provides initial information and screening, and ‘Preparation for Mediation’ services.

And FairWay can provide those services, even if a parent is in prison (though not if on remand).

How come?

I’ve just discovered an article I must have missed first time round – it was published in the Family Advocate (Spring 2016) and is also on the FairWay website:Improving the lives of  children – delivering FDR into New Zealand prisons.’   Written by Keri Morris, FairWay’s FDR Scheme Director and Senior Resolution Practitioner.  It’s worth reading in full – it only takes a couple of minutes.

That article about FDR in prisons explains:

  • why it matters – including, ‘The hope is that by providing a way for a parent and child to remain connected, that will decrease the likelihood of that child ending up in prison themselves, as well as reduce the rate of reoffending.’
  • what it achieves – including, ‘FDR enables parents (including those in prison) and caregivers to make a plan as to how the children can continue having contact with the parent in prison.’
  • how safety risks are monitored and managed –  including,‘We are … very aware that FDR could be used to re-victimise a person and our antennae are up for signs of process abuse.’ 
  • practical issues and learnings so far, including,Reality testing each part of the agreement: If a parent is now allowed to write to a child, is the parent literate? And if literate, do they know how to begin the daunting process of connecting or reconnecting?’

And there’s more. Read it.  And smile, because it is a sign of hope.

 

Cheryl Simes

26 June 2018

(This blog was inspired by reading Keri Morris, ‘The mystery of FDR: common questions and misconceptions,’ 19(4) Family Advocate (Winter 2018), 32-33. Like the 2016 piece mentioned above, this later article is also available on the FairWay website.)

See also earlier blog: Prisoners don’t cease to be parents.

Creative use of s46G counselling orders – with one psychologist per party, using peace-making therapeutic skills in a collaborative approach

New Zealand First’s election platform included a policy of making Family Court counselling more effective. We hope that the new government will encourage more creative use of the existing system, before making changes that may prove unnecessarily disruptive. The collaborative approach outlined below is one such creative innovation, achieved within the existing system.

Court-directed counselling can be used within Care of Children Act proceedings to provide one parent with input by a psychologist – for instance, if a s133 specialist report identifies a need for this.  It can also be used to provide both parents with individual input by separate psychologists (one for each parent).

Such input is not therapy.  That would be taking the scope of ‘counselling’ too far.

However, the psychologists can use therapeutic techniques to help each party understand their own personality and the other parent’s personality, improve their communication, express feelings, needs and interests, understand child development and children’s psychological needs, address historical issues that impede current parenting, and liaise with specialists if intensive therapy is required.

The psychologists can also work together collaboratively, facilitating joint meetings if appropriate, to help the parties improve their relationship as co-parents and/or to improve the effectiveness of a parenting order.

If authorised by the parties and the court, the psychologists can also liaise with a court-appointed specialist report writer (under s133 of the Care of Children Act 2004, or s 178 of the Oranga Tamariki Act 1989).

This is different from the traditional approach under s46G which sees the court appoint one counsellor who works with both parties, usually in joint sessions, with no liaison with any other specialist.

Moreover, this alternative approach is possible under the existing wording of section 46G of the Care of Children Act 2004. Although section 46G refers to ‘parties’ (plural) and ‘counselling service’ or ‘counsellor’ (singular), section 33 of the Interpretation Act 1999 allows the singular to be read as plural, and vice versa (see also section 4).

‘Counselling’ has an extended definition  (tracked through regulations and departmental guidelines) – linked to the qualifications accepted by the Ministry of Justice, which include clinical psychology.

And, although there is a statutory block on disclosing anything said by the partiesto the ‘counsellor’ (s 46L of the Care of Children Act), there is no such statutory block on disclosing something the ‘counsellor’ has said or perceived. The only restriction would be the usual obligation of confidentiality. Therefore, if a party consents, ‘their’ psychologist may disclose limited information to a specialist report writer.

In theory it would be possible for such a ‘counsellor’ also to give evidence in court, not of what a party had said (barred by s46L as above), but of what the counsellor had said, and of the counsellor’s assessment of the party, and of the work done by the party with the psychologist.  In practice, even if a party consented, this would breach ethical rules which separate a psychologist’s therapeutic role from a forensic role.  The psychologist would have a reason to refuse. However, in truly exceptional circumstances, a court might require such a psychologist to give limited evidence even if the client party did not consent, if this was deemed in the interests of the child.

Kiwilaw was recently involved in setting a High Court precedent for such a collaborative-style approach to Family Court counselling. We are happy to provide more information on request, and to receive comments from professionals and parents with insight in these matters.

Cheryl Simes

1 November 2017

Keep others honest and yourself humble – it’s legal to record your phone conversations, without disclosing the fact

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In New Zealand, that is. Do NOT rely on this if you are outside New Zealand.

 

In general terms, if you are on a phone call to someone else, you may record that call. Except in special circumstances (e.g. if you are a member of a profession with a specific ethical code that requires disclosure, or if specific contractual provisions apply), you are not required to disclose the fact that you are recording.

 

Do not expect government agencies, or professionals, to be happy about the fact that you are recording.  It will increase their suspicion of you. It may be held against you if they are assessing your attitude. (That can be a good reason not to tell them.  However, if they specifically ask whether you are recording, do not lie. Instead, tell them you are recording, show them this blog, and invite them to make their own recording as well.)

 

Reputable, competent and informed professionals will not object if you disclose that you are recording.

I have learnt from the experiences of some of my clients. I now recommend to many clients that they routinely record interviews and phone conversations with professionals and agencies, such as social workers, teachers, medical staff, and anyone else where an issue may arise about what was said. The System can be too ready to believe other members of The System.

A client may subsequently need to prove that they were indeed given particular advice that proved to be unwise (and that is subsequently denied by the advice giver or their employer).  Or that they did not say something. Or that they did. Or that the social worker (or other professional) did or did not say something.

However, recording interviews and phone calls can also enable the lawyer to provide better advice to the client. The client does not always accurately remember (or relate) the conversation. If a crucial call or meeting was recorded, the client and/or lawyer can listen to the recording and, if necessary, gently correct any misunderstanding, before the misunderstanding creates a new problem. A client who is humble enough to accept that they may perhaps have been mistaken, and who agrees to check this before escalating a conflict, should be applauded.

It is reasonable for a lawyer to insist on listening to the recording herself before quoting or using it on a client’s behalf. This expense is insignificant compared to the cost of unnecessarily prolonged proceedings. The lawyer may also identify reasons why using the recording in evidence could backfire, even if the client believes it helps their case.

Just knowing that the recordings are there if needed can help boost a client’s confidence in dealing with agencies. There should be no need to retrieve the recording – unless a dispute arises about what happened.

However, if a client records phone calls or interviews, the existence of such recordings may subsequently have to be disclosed to the court and to other parties, if the recordings are relevant to legal proceedings. The content of the recordings may also have to be disclosed, unless there is a basis to claim confidentiality or privilege.  It is also illegal to destroy recordings (or other documents) that may be relevant to legal proceedings. Wise clients keep this in mind and ensure nothing is said in a recorded call that may reflect adversely on the client.  In many situations it is wise not to volunteer the fact that such recordings exist, especially if there will be no routine procedural ‘discovery’ requirement.

Covert recording may backfire if a party is trying to ‘set up’ or ‘entrap’ another party by asking leading questions or trying to manipulate a conversation.

Even if no such entrapment occurs, covert recording may also be interpreted as breaching a relationship of trust and confidence. Do not covertly record a conversation with your spouse!  Consider how the other person will react if they learn you have been recording and you have not disclosed it at the time. Knowing you have a legal right to do something does not always prevent negative consequences if someone objects. Use discretion and judgment.

Finally, making the recording is one thing. Disclosing its contents to a third party is a different matter.  Legal privilege allows anything to be disclosed in confidence to a lawyer for the purposes of obtaining legal advice. Disclosure to anyone else who was not a party to the recorded conversation may breach privacy laws or incur liability for defamation or breach of confidence, or even criminal liability in some instances.  Caution is advised.

I repeat – this article broadly reflects New Zealand law. Elsewhere the law may be different. Even within New Zealand, the general information in this article may not fit your own specific circumstances. Exceptions exist that have not been mentioned here. This article should not be relied on as legal advice.

 

Cheryl Simes

Prisoners don’t cease to be parents

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A prison inmate has the same legal status as any other parent/guardian.

So a serving prisoner may apply for parenting orders or orders involving guardianship disputes.  A prisoner may also defend applications for such orders.

If a Family Court judge (or registrar) agrees that the interests of justice require the prisoner to attend court in person, the prisoner may have to pay the reasonable expenses incurred in facilitating this.  I say ‘may’ because  I do not accept that this is compulsory in every instance.

I have been told that such costs are recoverable from Legal Aid as a disbursement. From a colleague’s recent experience, the main difficulty seems to be in obtaining timely information from the prison as to the amount that needs to be deposited.

This will be a greater challenge in non-urgent Care of Children Act proceedings where, in initial stages, parties are required to represent themselves and cannot have lawyers acting for them, and are not eligible for legal aid.

Section 65 of the Corrections Act 2004 specifies that, in a civil proceeding (i.e. not a criminal proceeding), any person who applies for an order to produce the prisoner to court must pay those costs.

Contrary to the belief of some practitioners and judicial officers, the statute does not say that the prisoner must pay the costs. It imposes the obligation on the party who applies to have the prisoner brought to court.

The prisoner could be needed as a witness, rather than as a party. If a witness is required for cross-examination, it is the party who filed the witness’s affidavit who becomes responsible for ensuring the witness is available for cross-examination. This is usually done by applying to the court for a witness summons, and then serving the summons along with specified witness expenses.

The order to produce a prisoner is similar to that summons. It is the party who seeks to rely on the prisoner’s evidence who will apply for the order to produce the prisoner. It may indeed be the prisoner, but only if they are a party to the proceedings.

I am aware of two recent cases – both involving prisoners who were parties to the proceedings – where neither party applied to the court for an order to produce the prisoner.

In the first case, I suggested that the court could make an order of its own motion, if the judge considered it necessary in the interests of justice for the prisoner to be present. (The judge declined. It was too soon to say whether the prisoner’s attendance was required.)

In the second case, the presiding judge made the order so that the hearing could proceed, and minuted the expectation that the prisoner would pay the relevant costs.

With great respect to the presiding judge, I consider the latter minute may have been misguided.

The statute only requires ‘the person applying’ to pay the costs.

If the order is made on the court’s initiative, that section ought not to apply.

At least, that’s my interpretation. I confess I have not (yet) checked for any case law on this. One day, in my spare time, just for fun,….

Cheryl Simes (Kiwilaw)

(Originally posted on 13 December 2015. Now transferred to a different page.)

 

Bemused family lawyer? Let’s start at the beginning… with the Interpretation Act 1999

Want to meddle with the Official Forms? Or use discretion to make two parenting orders instead of one? Or set clear contact or changeover times in Family Court orders?  Help is at hand. You need not wander, lonely as a dog, over a riverbed, chasing a rainbow…

Introducing…not Superman, but the Interpretation Act 1999 (drum roll, please)

‘I haven’t read the Interpretation Act,’ said someone who should have known better. I won’t identify him, for fear of causing significant offence. The comment was made in conversation following a chance meeting. (Doesn’t everyone discuss the Interpretation Act, in chance meetings?)

It had already become distressingly apparent to me that many family lawyers had not read (or at least understood) the Interpretation Act 1999.  Some had been appointed to the bench and had still not read it.

Please do, if you practise family law in New Zealand. Or if you adjudicate on it. It may save you some embarrassment, as well as saving the taxpayer (or private clients) some money.

The Interpretation Act helps with interpretation of statutes – including the Care of Children Act 2004.  It also helps with interpretation of delegated legislation (what used to be called regulations), including the Family Courts Rules 2002.

There is more to it than the celebrated introductory sections of the Interpretation Act – about purposes and principles – to which the bench and bar regularly refer.

There are three later sections that particularly interest me – relating to singular/plural meanings, time (the meaning of ‘from’), and the potential to adjust prescribed forms. Sound riveting? Read on….

Words in the singular include the plural (and vice versa)

Within the Interpretation Act, my favourite section is section 33.  It provides that, unless the context otherwise requires, words in the singular include the plural, and vice versa. So ‘parenting order’ means also ‘parenting orders’. ‘Interim order’ includes also ‘interim orders.’ ‘A directions conference’ means also ‘Several directions conferences’.

Thus, unless the context otherwise requires:

  • COCA section 48 may refer to more than one parenting order (thus allowing split orders?)
  • FCR rule 416U(5) may allow more than one ‘directions conference’ on the without-notice track (while not allowing any other type of conference)

It is not difficult.

Yet, taking one of the above issues as an example, to date there have been at least four Family Court decisions on whether ‘split orders’ are available (i.e. a final day-to-day care order with an interim contact order, or vice versa): two for and two against. There are at least two commentaries: one for and one against. (Contact me for details.) None of those decisions or commentaries mention the Interpretation Act.

There is now a High Court decision pending. UPDATE: The High Court confirmed that split parenting orders were possible, citing (para [37]) the Interpretation Act in its decision. See Johnson v Johnson [2017] NZHC 1564.  

In my respectful submission, the intervention of the High Court should not be needed, in order to draw the attention of the family bench and bar to a basic tool of statutory interpretation.

‘From’ does not equate to ‘beginning on/in’

I cannot pretend that I do not know about section 35(2). I cannot say that I ‘like’ it. It makes life unduly complicated.

Section 35(2) equates ‘from’ with ‘after’.  (Now read that again. Yes. ‘After’.)

Contrast this with common parlance where ‘from’ equates to ‘beginning on’.

I once tried to interest a Family Court judge in the statutory definition of ‘from’, when attempting to interpret a Family Court order. The learned judge was singularly unimpressed. ‘Never before in my time in the Family Court,….’ she began, incredulously.

Admittedly, the Interpretation Act applies only to legislation, not to court orders. (I have since learnt that case law applies similar principles to court orders, contracts and other documents.)

Applying section 35(2) of the Interpretation Act would mean that ‘From 1 February’ meant ‘Beginning the day after 1 February’, and ‘From March’ meant ‘Beginning in April’. ‘From the first week of the school holidays’ would mean ‘beginning on the first day of the second week of the school holidays’.

I have not found case law considering this issue in the specific context of a Family Court order. The issue has arisen in disputes about other types of documents. In those cases the governing factor is whatever the context implies, with preference – if the context does not imply otherwise – for the same meaning as above.

Personally I now try to avoid using ‘from’ in a parenting agreement or proposed parenting order. It is too ambiguous. Children do not need their parents to be confused by ambiguous wording in a document that is intended to make life easier for the children by spelling out clear arrangements.

And I long for a High Court decision that spells out the default meaning of ‘from’ in a Family Court order. Because somebody needs to sort this out.

Prescribed forms may be altered (don’t let the bureaucrats bully you)

Soon after the 2014 Family Court ‘reforms’ were introduced, I was driving over the Kaimais (from Hamilton to Tauranga) after filing urgent without-notice applications in Hamilton for a protection order and interim parenting order. The Family Court manager phoned to tell me my applications ‘could not be processed’ because I had failed to provide a separate ‘information sheet’ for each application.

Prior to the ‘reforms’, one filed a single ‘information sheet’ which covered all applications being filed at the same time. It had not dawned on me that the bureaucrats who devised the ‘reforms’ now expected lawyers or parties to compile two different, separate ‘information sheets,’ containing the same information, when making urgent and potentially life-saving applications to the Family Court in tight timeframes.

I was not going to drive back to my office to compile a second form that added nothing to the information already provided. Nor was I going to allow this to wait until the next day.

Fortunately, I knew the Information Act would ride to the rescue.  I informed the hapless manager that I was currently driving over the Kaimais, and I did not know the section number, but somewhere in the Information Act was a section that meant you didn’t have to use the prescribed form as long as you provided the same information.

Bless him, he shortly rang me back to say he was processing the applications.

That was section 26. My paraphrase to the manager was a bit rough but not too far off. Under section 26, minor differences in the form were acceptable as long as the form still had the same effect and was not misleading.

Does the same reasoning apply to the ‘approved forms’ in COCA proceedings, referred to in FCR 416?  I am unaware of any decisions on that specific point.  I would however be astonished if any court ruled otherwise, once section 26 was drawn to the judge’s attention.

And I will leave it there, for now.  Comments, anyone?

 

Cheryl Simes (Director/Lawyer, Kiwilaw)

 

Updated 26 October 2017