D.I.Y. Lawyering in the Family Court?

Last week the Family Court Proceedings Reform Bill got its first reading in Parliament.  There are 58 family courts around the country, and while it is a place most people would no doubt prefer to avoid, the courts nevertheless have a very high case load, especially in regards to the Care of Children Act.

The Court has been around since 1980, and a review of the activities and processes of such an institution is not in itself a bad thing.  The changes being proposed however have set major alarm bells ringing, and we are opposing the bill. We believe that potentially it makes  vulnerable parents and children less safe; creates serious financial and other barriers to  access to the Court, and will in the long run increase rather than reduce social and economic costs.

Our opposition to the Bill is shared by Labour, the Maori Party, and Mana. NZ First have supported the Bill, but made it very clear that there will need to be significant changes made if their support is to continue beyond first reading.

According to the Minister in charge of the Bill;

“The changes in the bill respond to widespread concerns that the court is not able to focus enough on the most serious cases, has processes that are difficult to understand, and has seen its costs greatly increase in recent years. The cost of running the Family Court grew 70 percent, from $84 million in 2004-5 to $142 million in 2010-11. This increase in cost is despite application numbers remaining comparatively stable.”

The real reasons for the cost increase require closer investigation, but one way the reform  seeks to cut costs is by reducing the involvement of lawyers in the Courts’ processes.  Once again quoting the Minister :

“Lawyers for parties will attend care of children proceedings in which they are needed. Lawyers do not need to be involved in the initial stages, except for urgent cases. This reform is designed to give family members the opportunity to resolve their disputes themselves, with the assistance of the judge. But if a case proceeds to a defended hearing, parties may choose to have a lawyer.”

The bill as drafted significantly reduces the right of lawyers to appear in the family court.  Putting aside the lawyer jokes and some of the less favourable perceptions of that much maligned profession, we need to ask how it can be a good idea to oblige lay people who are already under stress, and in some cases living  in dangerous situations, to endeavour to navigate their way through a complex legal environment.

At the moment applicants to the Court can choose to represent themselves.

“Although it is rarely advised, you can elect to represent yourself in Court, rather than engage a lawyer to act for you. You must still follow all the rules of the Court and the Court’s practices and procedures”.

That statement comes from the Family Court website,  along with other cautionary advice to ‘self-litigants‘.   “A self litigant is a person who chooses to appear in Court ‘for themselves’ and is not represented by a lawyer. It is not as simple as it might sound. All the rules of the Court, and the Court’s processes and procedures, must still be followed. This requires a substantial understanding of the legal process.” (italics added by me)

So you, a member of your family, a friend, while in the middle of a messy and difficult relationship break up and trying to do the best for any children involved, might be obliged to ‘self-litigate’, despite the obvious ‘warnings’ against such a course of action by the Ministry of Justice.

You can have a say about this bill via a petition , and by making a submission (before closing date of February 13th) to the select committee.


2 Comments Posted

  1. Seems like a great idea to me.

    THe “processes and procedures of the court’ are there, in part, to ensure no one but a trained lawyer understands what is going on. The usual situation is that a lawyer, being paid by legal aid, swans up to the waiting area reading their brief; they ask the client what they expect from the day’s procedings, they tell them is it’s possible or impossible, and then get a detailed ‘briefing’ on the subject from the client. (the words ‘just remind me about . . . .’ are often heard. In the court room, the lawyer applies the well learned process and procedure, and recites the often poorly learned and/or understood ‘facts of the matter’, and is given a ‘finding’ which may be ‘come back in six weeks’ up to ‘divorce granted’ or ‘custody assigned to . .’.

    Having a simple process, like the small claims dispute process, where a sensible person listens to what the parties have to say for themselves and, based on their experience, gives a binding determination is, to my simple mind, a much better approach than wigs, gowns, clerks and hangers-on.

  2. The Family Courts Act will be renamed as the Family Disputes (Resolution Methods) Act 1980, making the process (at least initially) a “dispute”.

    The de-courting is not just in name, they are de-lawyering it, so that this will mirror the disputes tribunal (and copyright tribunal) where legal representation is verboten.

    Presumably the idea is the hearer can hear directly from the parties themselves rather than a lawyer-interpreted version. So there is no “D-I-Y lawyering” involved.

    Sounds a good idea to me.

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