Lawyers take note
The new duty on Family Lawyers from 16 August 2023
By Will Story for the Family Advocate, Spring 2023
From 16 August 2023, family lawyers will need to be familiar with their new legislative obligation. The introduction of the Family Court (Supporting Children in Court) Legislation Act 2021 (“the Act”) has been a while in the making, but it is a game changer.
Of significance is the new duty imposed on family lawyers by the addition to section 7B of the Care of Children Act 2004. Section 7B currently sets out a number of duties upon lawyers when providing legal advice to a person about arrangements for the guardianship or care of child, or both. While lawyers must currently consider the mechanisms for assisting resolution of family disputes, the new duty upon lawyers goes much further to ensure that “before commencing a proceeding under this Act, a lawyer must take any steps that, in the opinion of the lawyer, assist in enabling the issues in dispute to be resolved as safely, fairly, inexpensively, simply and speedily as is consistent with justice.” [1] So what does this really mean for family lawyers? And how did it come about?
Background
In 2018, the independent panel reviewing the reforms to the family justice system in 2014 concluded in their report Te Korowai Ture ā Whānau that “the evidence is compelling that it’s in the best interests of children and young people to make arrangements about their care and other decisions about their lives with the least conflict and without having to go to court, which is inherently adversarial.” [2] Based on this, the panel recommended that the Care of Children Act 2004 be amended to introduce an obligation on lawyers to facilitate the just resolution of disputes as quickly, inexpensively, and efficiently as possible, and with the least acrimony in order to minimise harm to children and families. [3]
There were other recommendations made by the panel in the same context (promoting early resolution) which included making Family Dispute Resolution (FDR) free – to remove another barrier, and to give the Court more teeth when it came to directing parties to attend FDR. [4]
When the Bill made it to Parliament, one of its main aims was summarised as to “require lawyers to facilitate the efficient resolution of disputes in order to minimise harm to children, families, and whānau”. [5]
New obligations
Five years following Te Korowai, the panel’s recommendation is about to take effect and lawyers will now be under a statutory obligation to advise their clients to engage in what can be summarised as the least interventionist and least adversarial process of resolving the dispute possible. In practical terms, this means that from now on, not only are parties obliged by statute to attend FDR, but their lawyers are also under a statutory obligation to consider it. It is expected (and I suspect anticipated by the independent panel and Parliament) that the uptake of FDR will increase markedly.
Based on the law from 16 August 2023, as I see it the current ratio of Court proceedings to FDR cases is simply not sustainable. The intention of the legislation is that Court proceedings ought to follow attempts at early resolution. After all, Court proceedings are often expensive, become complex, and are slow to resolve. Over five years, the number of families waiting more than three years for a resolution from the Family Court has tripled to 1165. [6] They can also be destructive on relationships, which is not a consideration underlying section 7B but nonetheless another valid rationale for avoiding Court. If implemented well, the Act should see the current ratio of Court proceedings to FDR cases turned on its head.
Of course, for cases involving serious family violence or other immediate risk to the safety of individuals, section 7B rightly so retains discretion for lawyers to advise clients to commence Court proceedings (where appropriate). But for standard track matters, early resolution and FDR must be the first stop.
What does this mean for those cases which end up on the without notice track, which really shouldn’t be there? In their commentary to the Bill, the Justice Committee observed that the bill did not specify how compliance or non-compliance with section 7B would be assessed or enforced. [7] The Committee went on to note that “statutory responsibility for the regulation of lawyers, including lawyer for child, sits with the New Zealand Law Society (NZLS), as prescribed in section 65 of the Lawyers and Conveyancers Act 2006. Any systemic issues that might arise in relation to compliance would be identified and addressed by the NZLS.” [8]
This represents a clear signal from Parliament that non-compliance with section 7B will be taken seriously, and lawyers will be accountable for their decision making in this regard. However, if it is to be truly successful, early resolution as best manifested by the FDR model must be supported by all family justice system players. This begins with Court staff, Kaiārahi and other justice system providers together with lawyers and perhaps most importantly, Judges. The number of Judge referrals to FDR remains very low overall; however, section 7B in theory will give Judges more latitude when it comes to examining the course of action taken by parties, directing parties to attempt or revisit FDR, and when making awards as to costs.
Other changes
While this article has focused on section 7B, there are a number of other changes effected by the Act surrounding child participation in Court proceedings and FDR.
In the Court space, the main change surrounds appointment of lawyers for children, providing that the appointee’s suitability (including personality, cultural background, training, and experience) must be taken into account when determining the best fit for each child in every case. [9]
In the case of FDR, the Ministry of Justice is in the process of developing a Quality Practice Framework for Voice of Child Specialists. At this point in time, it is too premature to comment on how this will look in practice – and exactly how this will change how children participate in FDR. What is clear is that FDR is shaping up to be a more child-inclusive process, and that has got to be a change for the better.
Reflecting on the spirit of the Act, as family justice professionals we must all rise to the challenge of helping parties move their focus from their own adult issues to the touchstone underlying Care of Children Act matters – the welfare and best interests of the child in his or her circumstances must in all cases be the paramount consideration.
In an increasingly self-centred world and one full of conflict, this challenge is not for the faint-hearted. It is, however, one which we all need to embrace if we are to achieve better social outcomes.
About the author
Will Story BA LLB is an experienced family lawyer (not practising) and Operations Manager of Family Services at Fair Way Resolution Limited.
References
[1] Section 9, Family Court (Supporting Children in Court) Legislation Act 2021.
[2] Te Korowai Ture ā Whānau, page 10.
[3] Ibid, page 13.
[4 ]Ibid.
[5] Family Court (Supporting Children in Court) Legislation Bill Commentary, as reported from the Justice Committee, page 2.
[6] Parliamentary question 17791 (2023), Chris Penk to the Minister for Courts, published 14 June 2023.
[7] Family Court (Supporting Children in Court) Legislation Bill Commentary, as reported from the Justice Committee, page 3.
[8] Ibid.
[9] Section 7, Family Court (Supporting Children in Court) Legislation Act 2021.
