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Less Acrimony and Delays – solving the problems of the Family Justice System

June 21, 2019

When they separated, Tane and Imelda could agree on two things – they did not want to end up in Family Court and they did not want their separation to become a battle ground that their children had to survive. They didn’t want their children to look back on this time as one full of endless arguments. They had seen friends and family members who, while not ending up in Court, still battled out their own separations armed with lawyers sending letters back and forth. This appeared to cost a lot, financially and emotionally.

Tane and Imelda wanted a cost effective process that left them with the ability to share their children’s birthdays without stress. In effect, they wanted the “Chris Martin and Gwyneth Paltrow divorce” – one characterised by dignity and goodwill rather than inflamed animosity.

Like Tane and Imelda, many New Zealand couples facing separation may not realise that a resolution process exists that aims to keep them away from the usual horror stories associated with divorce. Using Collaborative Practice, specially trained lawyers and other professionals provide partners with a safe and dignified environment that is geared towards reducing conflict, focussing on children’s welfare and ensuring sound decisions and solutions are found.

During the process there are no lawyers’ letters. Rather, everyone sits down and works together to find solutions that reflect what is important to each party. Agreements reached are legally enforceable but are often more creative and customised to the family’s needs than court orders or agreements reached through more traditional methods of negotiating between a couple’s lawyers. Many clients, on hearing about the process, describe it as simply “common sense”.

On Monday, the final report of the Independent Panel reviewing the 2014 Family Justice System changes was released. When the 2014 Family Justice System changes were made, Collaborative lawyers were concerned at the narrow emphasis placed on mediation. The Panel has highlighted that this narrow focus on mediation is inconsistent with the original policy intent that family dispute resolution be a flexible concept that draws on a range of dispute resolution models to help families reach agreement. My view is that FDR must include a range of more flexible processes than mediation alone.

Access to justice should mean each whanau has access to the appropriate dispute resolution process that best suits that whanau’s needs. For many, this will be Collaborative Practice which enables families to access legal advice and any necessary wrap around professional services in one complete, cohesive process.

Unfortunately, access to Collaborative Practice is not provided for within the current Family Legal Advice Service or Legal Aid system. Those who qualify for Legal Aid are not given the same range of resolution options afforded to the rest of the community and they are left with no choice but to use processes that may not be the best for them, their whanau and their circumstances. They are denied the support and encouragement to self determine their current and future family disputes that Collaborative Practice offers.

The Panel’s report highlights considerable issues within the present Family Justice System including pervasive delays, confusion and limitations around access to legal advice, inflexible and fragmented services, and a need for targeted counselling and culturally responsive services. In one cohesive process, Collaborative Practice addresses these issues and provides couples like Tane and Imelda with the opportunity to move themselves and their children through separation without pitting them against one another. At FLR, we hope the Government will recognise Collaborative Practice when considering changes to the Family Justice System and include it within the menu of choices for families.

If you’d like to explore whether Collaborative Practice may be right for you and your family, feel free to contact us on (09) 282 3574 or at lawyers@familylawresults.co.nz. We’d love to talk with you.

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