Information is Power - Why the Family Legal Advice Service is so important for parents’ attending FDR

Keri Morris, Scheme Director and Senior Resolution Practitioner –  FairWay Resolution Family Dispute Resolution (FDR)

Since 2014 parents who cannot agree on parenting arrangements after separation will in most cases attend FDR mediation through the Family Dispute Resolution Service (FDR).

FDR involves a number of services which are designed to work together and complement each other.  The first of these services is the Parenting Through Separation (PTS) course which is an education programme provided free by Ministry of Justice (MoJ). Some parents reach agreement without needing to access any further parts of the FDR system.  For those who need more help they can access the other parts of the service which include the Family Legal Advice Service (FLAS), Preparation for Mediation, and Mediation. Where a parent is eligible for a government-funded service they are able to access these services at no cost. For those who are not eligible for the subsidised service then these services are available at a very reasonable fixed cost.

Parents who want to use a government-funded service need to do that through a ‘Supplier’. FairWay Resolution Ltd is the only nationwide Supplier of FDR for the MoJ. The benefits of FDR to families and the Family Court are clear. For example, more than 80% parents who access FDR through FairWay reach agreement on at least some matters at mediation.

In some cases parents have been referred to FDR by a Family Court Judge. These cases are dealt with promptly and parents have the benefit of accessing Preparation for Mediation as well as mediation. 

The widespread experience of FairWay’s FDR Providers is that obtaining FLAS advice prior to starting mediation is of huge benefit to parents, making a significant contribution to the success and effectiveness of the mediation process.

The Family Legal Advice Service (FLAS) enables parents to get legal advice prior to starting mediation (FLAS 1), and supports them either in their application for a Court Order or in having a mediated agreement turned into a Consent Memorandum (FLAS 2). FLAS services are free to parties who are eligible for a government funded service under FDR.

However, uptake of FLAS has not been high. Since 2014 just 66% of eligible parties have accessed FLAS 1 and 18% FLAS 2.

Where all parties are funded there has been a 65% uptake. Where one - but not all - parties are funded, there has been a 16% uptake. Where no parties are funded there has been a 19% uptake.

The reasons for this are not clear. When people call FairWay to see if they are eligible for a funded service our Resolution Co-ordinators will encourage them to access legal advice through the FLAS if they are eligible for a funded service or through a family lawyer if they are not. As an FDR Supplier we are strongly committed to encouraging people to obtain FLAS advice prior to mediation. Mediators are not permitted to provide advice about parents’ legal rights and responsibilities, so having that independent legal advice is vital.

When parents come to mediation without the benefit of family legal advice, both they and the mediator, start on the back foot.  A common example will be a parent with majority care thinking they can make unilateral guardianship decisions about their child, such as what school they go to, their religious upbringing and where they live; including the ability to relocate. Equally, a parent without majority care may think they are unable to play a part in such decisions. This puts stress on mediation from the outset and puts the mediator in a very difficult position because they can’t give that advice.

FLAS enables the client to gain legal advice about matters which they cannot receive in any other part of the FDR service. This is crucial to the processes later down the track.

That includes, for instance: what potential legal and other costs they might face if the case proceeds to court; information about the possible involvement of a lawyer for the child and/or psychologist reports; how the in-court process will flow, and; how to access legal advice/representation beyond that provided through FLAS.

Legal advice provides parents with a much clearer picture of the Care of Children Act (COCA) and the paramountcy principle. A lawyer can explain the reality of what a hearing would involve, including talking about cross examination and evidence, the impact this conflict can have on the relationship between parents and how the judge makes the final decision.

FLAS also supports the out-of-court process on a ‘human level’ by the fact that the lawyer’s obligation is still to promote conciliation between parents and making sure the clients know what resources exist to help them reach agreement. That can be practical as well as legal.  For instance, is there a family member who both parties trust to help? Is there a safe public place to meet and talk, perhaps after both parties have done PTS?

FairWay’s experience is that when people come to mediation having taken FLAS advice they know where they stand in terms of their rights and responsibilities as a parent. They have had opportunity to work through how they feel about that and to plan and they are more likely to come to the process calmer, better prepared, future focused and more able to reach common agreement.

FairWay works with Christchurch-based Ebborn Law who provides FLAS New Zealand wide, via a video service, phone or Skype, including to prisoners and to overseas-based parents of New Zealand resident children. They have handled 489 FLAS cases since 2014 and find most take about an hour to complete.

Chief Executive Jarrod Coburn says not having to invoice – payment arrives automatically once you have completed the service – supports ease of delivery.
There is also no risk of ‘overservicing’ with FLAS 1, as, unlike Legal Aid cases, the client ceases to be your client as soon as the work is completed.

“FLAS is a perfect example of where lawyers can add value.  Anyone who goes to FDR without legal advice is at an immediate disadvantage. We get to see the value of it, when people have mediated their feelings and let go of a lot of emotions.  Our lawyers enjoy providing FLAS because they can see it makes a real difference.”

Coburn emphasises that FLAS providers need to be careful not to “over deliver” with FLAS 2. The contract with the Ministry does not require the provider to complete court documents for the client – it is the client’s responsibility to produce court documentation.

“We provide the client with the court documents to fill in. It’s in their interest for it to be in their own voice and, if the judge asks them a question in court, they will be better prepared to understand and answer that.  We then go through the completed form with them and provide help and assistance in areas where it might be needed.”

Inevitably, allegations that a parent’s behaviour is of concern will sometimes be raised in a FLAS session. Coburn says:

“If a notification of concern about a child’s safety or parent behaviour is raised, we deal with it appropriately, but there is no obligation to provide any service over and above what we are contracted to.

“Depending on what it is, we may advise them to contact police or CYFS.  In the case of domestic violence, they can, if they want, instruct us to commence domestic violence proceedings or we will link them to the relevant community services, such as Women’s Refuge.”

FairWay’s FDR service is committed to providing a full service to help and support families to make the best decisions for the parenting of their children and to enable the Family Court to focus on the most urgent and complex cases. We want to work with lawyers to provide this full range of complementary services.

As FDR Scheme Director, I am committed to providing the best service possible for our clients and I would like to work with the legal profession, including existing contracted FLAS providers to ensure that we encourage greater provision and uptake of FLAS.

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