24 Jul 2018

Delayed review into pressured Family Court to get underway

11:28 am on 24 July 2018

The government's promised review of the pressured family court system is about to get underway - three months later than it should have.

Andrew Lititle speaking at Waitangi, 5 February 2017.

Photo: RNZ / Claire Eastham-Farrelly

The government is poised to announce details of who will carry out the inquiry and the terms of reference.

Late last night the UN repeated its call for a Royal Commission of Inquiry into the court's treatment of victims of domestic violence saying it was worried the review would not go far enough.

The overhaul of the Family Court four years ago put the onus on parents to resolve custody disputes and got lawyers involved only in the most urgent cases where there were allegations of violence and abuse.

As a result, there was a dramatic increase in urgent applications as parents worked around the system to get access to lawyers.

In April Justice Minister Andrew Little told RNZ he was setting up a review panel and an expert advisory group to look at what was going wrong and he expected to finalise appointments and terms of reference by the end of that month.

However, that did not happen and Otago University law professor Mark Henaghan said the lack of action was disappointing.

"I thought it was really getting underway much earlier in the year, I thought it would be well underway by now because I think there are a lot of people who work in the Family Court, there are reports coming out, things coming out, the United Nations," Prof Henaghan said.

"We need to be looking very closely at how the reforms have worked, what we need to be doing to ensure we have the best family court system, that we have," he said.

Law Society's chair of the family law section Kirsty Swadling said family lawyers met the minister in April and also thought the review would be starting soon.

She said the court had problems that needed to be solved quickly.

"The longer the delay goes on, the less time may be available for a full consultation as to how things can be improved and that could impact on the ultimate outcome of the review. It's important to have the time to actually examine how best to improve the situation", she said.

Mr Little said the last details were finalised yesterday and all the positions on the panel and the advisory group have been filled.

The cabinet will sign off on the proposal and agree to the terms of reference in the next couple of weeks.

Mr Little said finalising details of the review took longer than he expected, but he would not say why.

"I'm not going to go into that, because you are dealing with a variety of different people and getting a number of different people from a number of different backgrounds together on what is going to be a quite challenging exercise, has taken more time that I had expected," he said.

"But I'm confident that we have an outstanding team of people who will be involved in this process. They know there is a fair amount of work to do because we want good quality stakeholder engagement."

Mr Little would not say who he had appointed to the three-person review panel.

The advisory group included experts on domestic violence, child development as well as legal academics.

However Prof Henaghan, who was researching the impact of the reforms, questioned why there needed to be more than one group.

He said more consultation only delayed much needed change.

"Everyone knows that ex parte orders have got totally out of control, which is clogging up the court and judges are struggling to get through it. We know that we're taking counselling out of the court, which a lot of people say was a big gap," Prof Henaghan said.

"We now know from the Backbone report that there is a strong perspective by many women who have been through the court that they don't feel they've been listened to, and their concerns with regards to violence are not being heard.

"Those are serious issues, it would be good to start talking about what we need to do to start turning those around."

Mr Little said he could appreciate the sense of urgency but it was important both groups did a thorough job.

"There's been some analysis based on data and there's anecdotal evidence, that is true," he said.

"But I think there needs to be a systematic review, particularly of those who have used the court and to get an understanding of why it is 70 percent of the applications to the court are on a 'without notice' basis. We need to get to the bottom of that."

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