Recently, the Law Commission has delivered two reports, both of which are important for the Family Court.

By far the more significant is its report on Dispute Resolution in the Family Court which came out just on one year ago. Much more recently, a far-reaching report called Delivering Justice for All came out and that report deals with the whole of our court structure including the Family Court.

Both reports however are important because they raise serious issues so far as the Family Court is concerned.

Arguably, the Family Court is the most important court so far as the public is concerned. It is a court dealing with human experiences from pre-birth right through to post-death. It is a court to which people come not because they have broken the law but because they need assistance or are in crisis.

A whole range of human behaviour is on parade, from the joy and elation of a new baby being adopted through to the anguish of a bitter separation, the anguish of having to look after and make arrangements for an elderly parent and finally the grief of adult siblings in conflict over a deceased estate.

Because many of these issues are so inherently personal, the 1978 Royal Commission on the Courts recommended that the Family Court should do its work in private, so as to afford adults the ability to resolve disputes or have them resolved by the court, away from public gaze. Even more importantly, the sensitivities of children and their vulnerability to damaging public exposure was felt to be a compelling case for confining a dispute to the courtroom and requiring no further knowledge of it beyond that forum.

Consistent with this theme, successive Parliaments have enacted legislation and, without exception, prescribed in Acts of Parliament that only those concerned with the proceedings are permitted to be in court, and that, furthermore, publication of proceedings is limited to professional reports.

One of the most important Bills that we may enact shortly is the Care of Children Bill, and that too presently reflects a wish that matters affecting children’s care arrangements be dealt with by the court in private.

However, the Law Commission has signalled that the Family Court’s processes need to be reviewed.

In dealing with criticisms of the Family Court, it is proper to put them in context. The Law Commission says that:

We should not forget the key factors that make the Family Court of New Zealand a world leader in its field.

Those key factors are said to be that the Family Court of New Zealand:

Is a specialist Court with specialist judges. It has comprehensive jurisdiction over family matters. The legislation provides the appointment of legal representatives for children involved in most cases which go to defended hearings.

Few other countries have this degree of specialisation in this area.

However, what prompted the Law Commission’s comprehensive report on the Family Court was a reference from the Government because of “wide spread criticism of the Family Court”. Allegations included that the system is biased against men, that without notice applications are granted too readily, that where orders are made without notice it takes too long for the other party to be heard and that matters generally take too long to resolve. There was also concern that not all Family Court professionals were properly trained and skilled.

We must be alive to these criticisms and must respond in a constructive fashion. That we perceive that criticism of the Family Court is often extravagant and misplaced is not, and can never be, an excuse to do nothing.

There are two important points I want to make at the outset. The first is that without any doubt at all, the Family Court system works well for most people. Our statistics tell us that only 6% of cases exit the Family Court after a defended hearing. Of a sample of custody and access cases analysed between July and September 2000, 69% of cases which were referred for counselling were resolved through that process.

Of cases that went on to a mediation conference, 88% were resolved in that fashion. In all, 52% of custody and access cases once filed in court were resolved independent of the court’s formal processes.

What the data tells us is that in our highest case group, which is custody and access and guardianship cases, well under 10% ever need to be resolved by the court by way of defended hearing. We should remind ourselves time and time again that conciliation and mediation are the best way to resolve most cases and they work.

However, the other important point I want to make is that for the percentage that do require court determination, there is considerable room for improvement. Our delay, and method of dealing with custody and access cases that clearly need court determination, need, in my view, to be revisited by us all.

As my colleague Judge Jan Doogue recently highlighted in a paper she gave on domestic violence, many parents, but particularly men, are disenfranchised from having contact with their children because we do not deal with and resolve cases in which abuse and violence are raised, as quickly as we should.

These issues are best discussed away from any suggestion of blame or fault. The fact is, the Family Court’s jurisdiction has grown enormously since 1980. The complexity of that work, and I talk here about relationship property, family protection and protection of personal property means, as everyone knows, that the Family Court has replaced the High Court and has simply become too busy to do some of its core work effectively.

I would like to talk a little about these problems and how they might be addressed.

The question has been posed, would not opening the Family Court up for scrutiny so that the public can see what goes on be a complete answer to addressing the sort of criticisms that the Law Commission talks about - delay, bias, and disservice to children?

The importance of the openness debate cannot be understated. On the one hand, a court that is so private that it is accused of being secret is bound to suffer in its credibility. Unless what goes on is understood, how can there be confidence?

The counter-balancing argument is exactly the one that prompted the Royal Commission to suggest privacy in the first place. It is simply the argument that people torn in the midst of personal crisis deserve the right to have their most private affairs and issues kept to their own family units and not be subjected to the further indignity and the torment of public titillation. Children, already anxious because their parents are separating, should not be thrown into the despondency of comments in the playground or on the sports field.

If we focus on the issue, which is allowing the court’s processes to be scrutinised, then I think we start to head in the right direction. There is a world of difference between protecting individuals and protecting the system.

If the court is to recapture public confidence and operate with the high self esteem that it did 20 years ago, then seeing how the system works, working out how long cases take to get resolved, reading what the issues in cases are, and hearing what a judge has to say and why, must be principles we have to embrace.

The Law Commission has suggested that public scrutiny can occur by allowing accredited members of the media into court and by permitting the media to report on all cases but preserving privacy for those affecting children. This is certainly a step but I think we can go a good deal further. There are three ways in which I think this can be done. The first is to promote a comprehensive website so that the half million households in New Zealand who currently have access to the world wide web can easily and painlessly seek information about the court’s processes. We can help further by making access available to potential court users who do not otherwise have access to a computer and the web.

The second and related strategy is to have more personalised information available in the form of access to an 0800 number or through the ability to attend a court user information course. Sessions of this type are currently being piloted in the North Shore and I think they have to become more widespread.

The final and important ability to scrutinise the court’s processes relates to making easily available judge’s decisions and at times, some of their directions in cases. Having the ability to post these on a website has enormous appeal to me because it so easily makes available information to those who seek it.

Last Sunday, the Sunday Star-Times published a judgment of Judge Fleming, which dealt with custody in the context of a same sex union, and a biological father. It would be progressive, if such interesting and significant judgments could be accessed, routinely.

I understand and appreciate that before cases involving children are made available for inspection on the web, there needs to be provision for privacy. I do not think that this is insurmountable and I think that with a simple coding system, those with genuine concern can be given access to a particular case and decisions on it by the removal of identifying details.

Of real concern to me is delay and poor management in cases. Whether there is greater public scrutiny of our work or not, we need to revisit our high risk core work and be permitted to concentrate on it more than has been the case.

When the Family Court was created, the 1978 Royal Commission saw the court as primarily a conciliation service with a court attached to it as a last resort. In fact, the lines have become a good deal more blurred than that.

I do not think we have ever properly come to grips with clearly compartmentalising the functions in the Family Court system. Counselling for instance is therapeutic in its science and it should be seen as that. It really has nothing to do with the court process at all.

Conciliation and mediation are the processes by which people in conflict are brought together and solutions explored and found. Often, judges make natural mediators and most are very good at it. But, as long as conciliation is seen as part of a Family Court process, I think it is a distraction from the core judicial work, which is making decisions.

In an effort to be genuinely helpful and promote settlement, Family Court judges have emphasised the importance of parties reaching their own decisions and have tried to assist in that. But I wonder whether we have not created a rod for our own back. Perhaps we have become too user friendly and have been seen as far too accessible. Have we permitted too many cases to return to court time and time again on often the most trivial of matters because the court is seen as having supermarket capability? Answers are sought from judges on everything from choice of school to choice of surnames.

Are we at times putting off decisions which really should have been made long ago because of a genuine wish to guide parents towards making their own decisions? When decisions finally come, are they treated with less respect than other courts because the judge is still seen as an affable mediator?

I think the Law Commission is absolutely right when it says that when cases enter the Family Court there must be a clear gate-keeping process so that those suitable for mediation are mediated and those that are not are identified as requiring a determination. We should then get on and do it.

The Law Commission believes that mediation of family disputes should not be undertaken by judges. Pilots for non-judge led mediation are about to start. If the cases requiring therapeutic intervention and mediation are clearly identified and carved off from the Family Courts work, I believe it would create a much better focus for the court to deal with the work that it really should be dealing with.

So what is that work? Where there are allegations of domestic violence or sexual abuse or allegations of child abduction or failure by one parent to promote co-parenting by denying the other parent care time, then the court needs to intervene promptly and either settle the situation or move towards speedy determination.

Mostly, the court’s work in resolving adoptions, divorces, protection of personal and property rights work, and, I suggest, relationship property is quite adequate. But the court’s ability to pay close attention and give appropriate time to domestic violence cases, abuse of children and so on, is presently so compromised by the mass of other work that there are unacceptable delays.

In suggesting the reorganisation of the way that the Family Court goes about its work, the Law Commission is not the first to say such things. I do not think wholesale reform of the Family Court is at all necessary. Rather, some obvious business decisions need to be made about core work and other work and, in those areas where there is heavy public criticism and disquiet, we need to be able to demonstrate speed and efficiency.

This brings me inevitably to the part that counsellors, court appointed experts and counsel for the children play.

For many people who come to our court, their lives are in temporary crisis. Some are suicidal, some are belligerent and angry, but the majority are anxious and fraught. I would like to see such cases being steered away from the court all together and being processed expertly and quickly through therapeutic counselling coordinated by seasoned counselling managers.

Counsellors need to be able to get to these cases quickly. If I was experiencing a real live family crisis I would want to see a counsellor within days. A week is too long. I think we need to stress that counselling is to prepare people for resolution, not to achieve resolution, although of course that may be a bi-product.

Counsellors need to be able to report in relation to key indicators. They need to be able to say promptly that there are key indicators present, such as violence, drug or alcohol abuse and mental health issues, which could mean that a case is much more suitable for Family Court determination than through therapeutic counselling and later conciliation.

It follows that if the Family Court truly concentrates on the cases which raise clear welfare issues and not the personal crises of parents then its armoury to deal with this very important work needs to be increased.

In this respect I would like to see counsel for the child becoming very clear and very focused in their task. There are two aspects to every counsel for the child’s appointment. The first is of course, what does the child say. How are the child’s wishes in a case to be represented and become influential?

The second and important task of counsel for children is to test the cases of the parents so that the true issues for the children emerge.

I think it is a mistake to look to counsel for children to provide overviews, to comment on allegations and to become too distracted by trying to find the middle ground. Children whose parents are in crisis need to have their lives stabilised quickly and have decisions made. This is not achieved by straying too far from the core job.

I am not suggesting for a moment that counsel for children should never mediate between parties nor try to act as facilitators. That part of the job can be important, but I think where there are key indicators which mean that we have to get on and resolve these cases, that is exactly what all counsel should do but particularly counsel for the children. Undertaking a variety of steps in well meaning fashion can cause unacceptable delay.

Inevitably that brings me on to the use of experts in the Family Court. Sometimes, we need data on cases before they can be resolved, and often we turn to psychologists to assist us. Clear focused psychological reports are a powerful part of the Family Court’s processes. But perhaps we overuse psychologists. We may have unwittingly developed a culture wherein we dare not move without asking for a psychological opinion. This is hardly good litigation practice.

One of my fervent wishes is to re-establish social work reports under section 29 of the Guardianship Act as potent weapons for assembling data in order to address welfare issues. In many cases, a good social worker’s report will provide the data upon which good decisions can be based.

But because social work reports have become hard to obtain we have become more and more reliant on psychologists to provide a panacea of answers on issues that are sometimes of marginal relevance, or alternatively, they are really issues that a court could otherwise fairly easily determine.

Recently, I undertook a case which had been subjected in my view to unacceptable delay. A mother was endeavouring to obtain access to her two children. A psychological report existed, but had been obtained in another court and on slightly different issues. Still, it was an immaculate report.

A social worker’s report was obtained and was absolutely excellent. For reasons which escape me, that report seemed to be sidelined and a further psychological report was requested. Inevitably there were months of delay while this came to hand. I do not believe the third report was required and the case should have been resolved when the social worker’s report was available. It contained all the essential data to enable decisions to be made.

I think we risk asking psychologists to provide too much information on too many issues. Some issues, and violence is a very good example, need to be heard and determined by a judge, on the facts. I wonder how helpful it really is to ask for psychological opinion on likely risk. The statute dictates that that is a judicial function.

In short, psychological reports can be vital, but at other times they need not be. Unless we get the balance right, we create unacceptable delay in waiting for reports. My challenge is to be clear, focused and confident in the tasks that we do. We should not be seeking psychological or psychiatric assistance unless it is demonstrably necessary to do so.

In looking then at the map of what lies ahead we need to think about the following things.

Firstly and foremostly we have a Family Court which has in the past, had high standards as a specialist court, and we need to once again recapture those high standards.

We need to be clear on those cases which require court intervention and determination and we need to be able to concentrate on those cases more than we are able to at the moment.

Therapeutic counselling and conciliation remains the preferred way of resolving the vast majority of our cases. Faster access to counselling needs to occur and conciliation and mediation of many disputes can and should occur through a non-judicial led process. Properly trained and experienced lawyers and other professionals might be a better option than use of judge time.

We need to be very sensitive about delay, and the consequences of that, where children are not seeing both parents. We have to reduce delay by concentrating on our core work and by getting on with the job of making determinations in certain cases.

But finally, and importantly, I do not think that criticisms of the Family Court should be brushed aside. Scrutiny of the court’s processes should occur more than is the case at the moment. Where that scrutiny reveals shortcomings, we have to work hard to fix those.

Unfortunately, the nature of Family Court work is emotional and with the best will in the world, greater openness and more scrutiny will not remove all of the criticism. That does not bother me. I think if the system is sound and if there is sufficient scrutiny the results will speak for themselves. My sincere wish, as I enter my term, is that the majority of New Zealanders will see just how professional the Family Court is and that those who are disaffected are that way, not because of the Family Court process, but because of their own sad, personal situations.

It is time for robust debate and discussion. But let us keep a sense of perspective and balance. Let us continue to focus on the welfare of those who use our court, including their children, as the most important consideration. The views of all others are important, but they are not as important as those who pass through the Family Court and who need to feel that they have been treated with fairness, with justice, and most of all, with dignity.