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Opinion piece by Bruce Tichbon
Family Court review a good start – but real vision is needed 
19 June 2011

In ancient Greek mythology, the Hydra was a venomous serpent-like creature with many heads.  Each time a head was cut off, two grew in its place.  The Hydra was defeated by the hero Hercules.

In New Zealand today we have our own Hydra; our system of family law.  Like the multiplying heads of the mythical Hydra, the costs and delays of the Family Court have grown out of control.

Enter our modern day hero, Hercules Simon Power, Minister of Justice.  Does he have the where-with-all to defeat the new ‘Hydra’?  He has made a good start with his review, but we must question if his mythical golden sword is up to the job.  His proposed review is short on vision; this paper will discuss later what is really needed.

In the past few weeks a lot has changed for the Family Court.  Its veneer has cracked.  After years of us being told by MP’s, officials and Judges that our Family Court is world class and the envy of overseas jurisdictions, many NZ authorities now admit there are serious problems.

It seems once again the holy grail of the Family Court (the best interests of the child) are not being put first – to quote Simon Power “In particular, we have to ask whether the current system is really incentivised to put children first and the argument second – or the other way around.” [i]

The quality of the Family Court’s work is being called seriously into question.  Power talks of “an ill thought-out and dysfunctional system” [ii]  The cabinet paper explaining the review talks of “This fragmented approach to family law” [iii]

Anyone who has suddenly found their marriage falling apart will understand the following statements made with the announcement of the review.  Steve Taylor, the director of Auckland-based counselling and mediation organisation 24-7, said the "tattered legal jigsaw within the court's system was unsuitable for helping families in crisis”.[iv]

The above statements indicate that there are serious policy problems in our family law and Family Court, but it seems to be the costs getting out of control that is driving this review.

To quote Simon Power “Over the past four years the volume of substantive applications in the Family Court has increased by 7% but costs overall have increased by over 40%. ….. That is a huge monetary increase for such a relatively small increase in volume.”[v]  Power goes on to say “many child complainants …. are often forced to wait for an average of 15 months for their cases to be processed through the courts”.[vi]  These delays make for a significant increase in costs.

The Family Court and the family law system are displaying the classic tendencies of a state bureaucracy out of control.  Family Court costs are growing way out of proportion to the services being delivered.  Family Court costs reached $137.1m per year in 2009/10 – this is not the total, many costs such as judge’s salaries are excluded.[vii]  The quality of Family Court services is declining; for instance disposal times for orders are increasing.  The quantity of family legislation has also increased dramatically; the Family Court when founded in 1980 had to consider 8 Acts of Parliament, in 30 years this has increased to 23 Acts, administered by many different government agencies.

When the Family Court was put in place 30 years ago, NZ seemed to believe it could afford a gold plated legal system (and a gold plated benefit system as well).  In 2011 record government deficits and debt tell us those days are over.  The gold plated family law system was meant to protect the vulnerable, especially the children.  It does not achieve this.  The review is needed, and it needs to find better ways to protect the vulnerable.

The Principal Family Court Judge Peter Boshier has quickly entered the fray with a carefully worded speech pointing out all the recommendations that had been made over the years to improve the Family Court[viii].  These past recommendations seem to cover most of the aspects of the upcoming administrative review.  That Judiciary and Cabinet seem to want similar changes must be a good starting point.

The misery of the legal system gets worse by the day.  Tony Molloy QC also joined the fray, claiming NZ law is making an “international laughing stock” of itself and making “a hash of its legal structures”.[ix]

The cries for real reform of the legal system are becoming a crescendo.

Can Simon Power slay the Hydra with his review of the Family Court?  There are serious flaws in what he is proposing to do, as follows:

Ministry of Justice Simply Reviewing Itself – The Family Court review is to be led by the Ministry of Justice.  The Ministry is not independent; it will be reviewing its own empire and actions over the past 30 years.  It seems the source of the governance failures that caused the problems is now to review itself.

It is noted in the Cabinet Paper the idea of an independent reviewer was rejected, for seemingly superficial reasons, such as a potential lack of specialist Family Court knowledge.  The Family Court brings in expert advice when it does not have the expertise, but apparently the reviewers are incapable of doing this.

Now is the time for a strongly led independent review of all law that affects families.

Review Has a Fragmented Approach – The Hydra extends into a range of other departments and ministry’s besides Power’s own Ministry of Justice. Many of these other departments administer Acts that are within the jurisdiction of the Family Court.

Other Acts are outside the jurisdiction of the Family Court, yet have a profound impact.  The Social Security Act (administered by the Ministry of Social Development or MSD) is a prime example, because it is the genesis of the Domestic Purposes Benefit (DPB).  People who know how the system works know that for divorcing parties it is exclusive control and possession of the children, that gives the right to receive the DPB.  This is the major driver of many cases in and out of the Family Court, hence112,000 people on the DPB (the vast majority are sole parents), incurring an annual expenditure of more than ten times the annual dollar amount Mr Power is seeking to trim with his review.

So we must add the Ministry of Social Development to the raft of other Ministries and Departments with legislation that is within the jurisdiction of the Family Court, but seemingly not covered by the review. These include the Ministry of Health, Department of Internal Affairs, and the Inland Revenue Department.

While the Cabinet paper talks of a “fragmented approach to family law,” the review is itself just as fragmented.  Mr Power is looking at the pennies and not the pounds.  Notwithstanding, it must be said that there is merit in the parallel work by government to reduce legal aid costs.

Policy Not Included – the cabinet paper states “It is not the purpose of the review to examine individual family law acts and the policy rationale that underpins them.”[x]  These words surprisingly are not included in the official Terms of Reference (TOR) for the review, but the next round will have to include this.

It is NZ’s disjointed and unworkable family law policy that is the real Hydra head Mr Power needs to cut off.  The Care of Children Act (CoCA) itself is tantamount to a declaration of war between separating parents, and another major source of the high costs experienced in the Family Court.  The problem with CoCA is it does not give a clear status to biological mothers and fathers that they are equal parents.  Instead it encourages ‘day-to-day care’ to be given to one parent (it used to be called ‘custody’) and the other parent has ‘contact’ (it used to be called ‘access’). The provisions for guardianship in CoCA are a shell, they have little or no practical consequence and they do not foster true parental equality.  The outcome is that most often one parent is made the winner of the children; the other the loser. 

Family law over the past decades has been largely ideologically driven, and used to redefine NZ social policy and hence society itself.   A preference for maternal sole custody has driven a major downgrading of the family, enabled by the transfer of tens of billions of tax dollars via the DPB and other benefits. Property and child support legislation has resulted in the transfer of tens of billions of dollars (mostly from men to women).  Yet such policy is specifically excluded from the review.  The focus seems to be just on government costs.

The Vision. - The government needs a clear vision on how to deal with the problems.  The objective must be a family law system that is simple for the public to understand, treats parents as equals, encourages cooperation, and is cost effective.

The review must be independent. Using the same hacks who have taken NZ down the wrong path for the past 30 years will not give the review good outcomes or credibility.

The review must take a holistic approach and look at the whole family policy picture that has driven NZ towards expensive and unworkable social/legal solutions.

If Mr Power wants to cut the cost of the Family Court by half at a stroke he should help end the war between parents and introduce equal shared parenting, where the starting point for biological parents is that they are equals in terms of care of their children.  This removes all the uncertainty about which parent is to be the winner and which one is the loser, and hence it removes most of the Family Court combat.  ACT MP Muriel Newman sought to introduce such common sense law a decade ago.  She placed the Shared Parenting Bill before Parliament, but the then Labour led government voted it down.  It is salutary to reflect on the billions of dollars that could have been saved in the past decade on Family Court and benefit expenses if Muriel’s Bill had been allowed to become law.  The best Mr Power can hope to save with his current review is trivial by comparison.

The Hydra can be defeated, but it will take the skill of a Hercules.  New Zealanders will celebrate when the wretched creature is slain at last.  This review lacks the vision to kill the beast, but the one following can do it.