Govt backdown follows attack by family judges

Laurence Ryan

Justice minister promises her officials will address judicial concerns over "unsafe" reforms

The Government has backed down from radical Family Court changes which would have banned lawyers from acting in the early stages of disputes over the care of children.

The proposed changes, designed to save $15 million a year, have been slammed as "unsafe" in an outspoken submission by Family Court judges.

Principal Family Court Judge Laurence Ryan, on behalf of the full Family Court Bench, said a proposal to ban lawyers until the final stages of parental disputes would drive parents into more allegations of domestic violence so that they could get legal aid.

"There is an assumption that these changes will reduce the overall cost of supporting the Family Court," the judges said. "We consider, on the contrary, that there will be no cost savings at all. Many people will avoid [mediation], the lack of legal representation will mean that fewer cases settle, more judicial time will be required and more cases will go to defended hearings."

Justice Minister Judith Collins told the Weekend Herald that her officials had listened and would recommend changes that would address most of the judges' concerns.

"There will be more involvement by lawyers than indicated," she said. "There are likely to be opportunities for lawyers to be involved in relation to children as well." She accepted that financial savings would be less as a result.

Mrs Collins has described the bill as making "the most significant changes to the family justice system since the Family Court was established in 1981". It would require most parents with disputes over the care of children, except in family violence cases, to go first to a private mediator approved as a "family dispute resolution (FDR) provider".

The Government would pay a fixed mediation fee of $897 where the incomes and assets of both parents were below the legal aid thresholds. Parents above the thresholds would have to negotiate fees.

Lawyers would be banned from acting for parents in mediation and in the court until a case is set down for a full defended hearing. Long-standing provisions banning children's contact with a parent alleged to be violent, known as the "Bristol clauses", after Wanganui man Alan Bristol killed his three children and himself in 1994, would be abolished.

Mrs Collins said the bill was "a proposal to get feedback" and she expected changes when it came back from a select committee in June.

"We will be definitely proceeding with FDR. However, we have listened very much to the judges and their concerns, and the departmental report coming back to the select committee is likely to reflect that listening has occurred."

She said judges would also be able to direct parents to counselling before mediation. "For some people, counselling may be just what they need before FDR, or instead of it."

On the Bristol clauses, she said the bill's aim was to ensure judges focused on children's safety. The revised bill would make this clearer.

Family Court bill

Original version:

• All care-of-children disputes, except family violence cases, go first to private mediation before access to Family Court.

• Mediation fee $897 unless income above legal aid threshold.

• Lawyers banned from acting in mediation and in Family Court, except in family violence cases, until case reaches defended hearing.

• Abolition of long-standing provisions banning children's contact with allegedly violent parent.

Revised version:

• Care-of-children cases will still have to go to mediation first.

• Mediation fee unchanged.

• Lawyers allowed earlier in process, possibly including lawyers for children during mediation.

• Possibly new risk or safety criteria to guide decisions on children's contact with parents.