New era for child law

New era for child law

16 June 2006

By Andrea MilnerContent supplied by NZ Lawyer Issue 42NZ Lawyer is published by LexisNexis

Principal Family Court Judge Boshier has signalled major changes ahead for the dispute resolution process used in children's cases, including the possible adoption of the non-adversarial process to be used in Australia.

Speaking at a child law conference in Auckland recently, Judge Boshier unveiled his vision for refining Family Court processes regarding resolution of childcare proceedings, which represent over a third of the work of the Family Court. He described the Court as "the final step" if all else fails, or where there is an urgent situation requiring decisive intervention.

The conciliation services of counselling and mediation should be expanded and made available to more people, he said. "Mediation should be separate and clearly defined as a final means of resolution between the parties, without needing to involve the Court." The Family Court has been running a mediation pilot which takes mediation sessions away from Judges and into the hands of specialist mediators.

Australia has been trialing a non-adversarial process which Judge Boshier advocated could be successfully adapted to New Zealand. Its Family Law Amendment (Shared Parental Responsibility) Act 2006, which comes into force on 1 July, moves the initial counselling phase outside of the Court's management and into the community.

Family Relationship Centres (FRCs) will be established throughout Australia. They will be separate from the Family Court, and offer a community-based disputes resolution service. FRCs will be contracted out to existing providers, and offer a variety of services, including free mediation sessions, some legal advice, and referrals to specialist services. Parties will be required to attend an FRC before being granted access to the Family Court, unless the case involves sexual abuse, violence, or contravention of a Court order.

Judge Boshier also referred to a programme trialled in the Sydney and Paramatta Family Courts aimed at reducing the adversarial nature of proceedings, and implementing a more child-focused dispute resolution forum. One objective of this Children's Cases Programme (CCP) is to reduce the amount of delay and harm caused by "the filing of vast amounts of irrelevant evidence," Judge Boshier said.

"Parents are parents for life. They separate from each other, not from their children. It is for the Court to encourage an ongoing relationship, as required by the Care of Children Act, by creating processes that are conducive to agreement, rather than the process itself becoming a hindrance to cooperation."
He said this can partly be achieved by Judges playing a more active role in steering the course of proceedings; deciding what the key issues are, and what evidence is required to prove them, rather than this being determined by the parties' perception of those issues, and their selective evidence.
"If the Judge can take a proactive role from the start, the irrelevant evidence can be eliminated, and the evidence that the Court truly requires can be drawn out," he said.

An evaluation report of the CCP recently delivered to the Australian Family Court compared the outcomes for families that had entered the programme with those who had gone through the traditional Court system. It suggests many parents received benefits from the Judge taking a more active role in resolving the dispute, while the parent's relationship with their child was seen to have suffered as a result of the mainstream process.

The Australian Family Law Amendment (Shared Parental Responsibility) Act makes it possible to roll out a less adversarial dispute resolution process over the entire country. The changes make it possible for the Court to dispense with certain rules of evidence without the consent of the parties, as is currently required for involvement in the CCP.
Judge Boshier said New Zealand needs to "seriously consider" implementing a system along the same lines.