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Conciliation and the New Zealand Family Court: lessons for English law reformers
Published online by Cambridge University Press: 02 January 2018
Extract
Conciliation has formed an integral part of the New Zealand Family Court’s management of family disputes since 1980. The Family Court is a tiered structure, designed to encourage the parties to resolve their own disputes by providing opportunities for conciliation within a statutory process. The first two tiers, counselling and judicial mediation, are procedures intended to empower the parties, enable self-determination, and encourage a conciliatory rather than combative attitude towards both each other and the dispute. Consequently, the parties are compulsorily channelled through the conciliation tiers of the court even if the ultimate goal of one of them is a court room battle. The hope is that the third tier, adjudication by a Family Court judge in the Family Court, will be avoided.
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- Copyright © Society of Legal Scholars 1996
References
1. Introduction to ‘A Review of the Family Court: A Report for the Principal Family Court Judge’ (New Zealand, Auckland, 1993) p 24.
2. Ibid.
3. Cm 2799 HMSO 1995.
4. Report of the Royal Commission on the Courts (1978) New Zealand.
5. The Family Courts Act 1980.
6. Family Proceedings Act 1980, s 9(1) enables any spouse to request counselling, and s 7A extends this to the parties to a relationship which is not a legal marriage.
7. Family Proceedings Act 1980, s 2 defines counsellor as 'a person nominated by an approved marriage guidance organisation or counselling organisation; or nominated by a Court to act as a counsellor under the Act; or a counsellor appointed pursuant to the Family Courts Act 1980.
8. Family Proceedings Act 1980, s 9(3) provides that any fees charged by the counsellor shall be met out of public money.
9. Family Proceedings Act 1980, ss 11, 17.
10. Family Proceedings Act 1980, s 19 places a duty on the court always to consider the possibility of reconciliation or conciliation and take the necessary steps to achieve this. Counselling may be one of those steps.
11. Family Proceedings Act 1980, s 10(4).
12. Family Court Judges in Wellington informed the author that referral to counselling in custody and access cases had, in practice, become mandatory.
13. A person nominated by an approved marriage guidance or counselling organisation, or a person approved by the court (generally selected by the counselling coordinator).
14. Family Proceedings Act 1980, s 12 (a) and (b).
15. Family Proceedings Act 1980, s 11(2)(a) and (b). Where counselling is the result of an application having been filed and the couple agree to continue their marriage, the original application is deemed to have been struck out after the expiration of 3 months.
16. The likelihood is that most cohabiting couples receiving counselling are doing so as directed by the court once a custody application has been tiled.
17. Family Proceedings Act 1980, s 13.
18. Family Proceedings Act 1980, s 14(2).
19. Family Proceedings Act 1980, s 17.
20. Family Proceedings Act 1980, s 14(7), (a) and (b).
21. Family Proceedings Act 1980, s 15.
22. Family Proceedings Act 1980, s 8.
23. Family Court Practice Note, 1 January 1982.
24. Family Proceedings Act 1980, s 39 substituted by Family Proceedings Amendment Act (No 2) 1985, s 39.
25. ‘A Review of the Family Court: A Report for the Principal Family Court Judge’ (New Zealand, Auckland 1993) para 5.2.2.
26. Maxwell et al ‘Counsellors’ Views on the Family Court - Part I' (1990) 2 New Zealand Family Law Bulletin 70.
27. Rhonda Pritchard, counsellor in the Family Court, Wellington since its inception 15 years ago, in ‘“Access to the Family Court-Meeting the Needs and Finances of the Consumer-A Counsellor's Perspective” (1991)’The Family Court Ten Years On, New Zealand Law Society, cited in Atkin & Henaghan ‘Family Law Policy in New Zealand’ op cit p 94.
28. Pritchard above at 93.
29. Simon Roberts ‘Alternative Dispute Resolution and Civil Justice: An Unresolved Relationship’ (1993) 56 Modem Law Review 452 at 456.
30. Above p 457.
31. Dingwall & Greatbatch ‘Divorce Mediation - The Virtues of Formality?’ in Eekelaar and MacLean (eds) A Reader on Family Law (Oxford University Press, 1994).
32. Above p 397. The authors attempt to counter this by devising a basis for the regulation of the practice of mediation.
33. The Family Court Counselling Co-ordinator allocates clients to counsellors on the basis of her personal assessment. There can often be a mis-match made, in either personality or cultural terms. See Maxwell et al, above, Part I p 71.
34. Maxwell et a1 ‘Counsellor's Views on the Family Court - Part 11’ (1990) 2 Family Law Bulletin 82.
35. Henaghan ‘Legally Rearranging Families’ in Atkin & Henaghan Family Law Policy in New Zealand (Auckland: Oxford University Press. 1993) p 90.
36. Family Proceedings Act 1980, s 10.
37. New Zealand Women's Refuges claim that current Family Court conciliation practices lack understanding of the effects and dynamics of family violence.
38. ‘A Review of the Family Court - A Report for the Principal Family Court Judge’ (New Zealand, Auckland, 1993) para 5.2.3. Counsellors claim that cases involving physical or emotional abuse of one party by the other, and cases where child abuse has occurred have been referred to them. Counsellors did not regard these cases as suitable for conciliation.
39. See Henaghan Legally Rearranging Families above, p 91; Bottomley in Brophy and Smart (eds) Women in Law (Routledge Kegan Paul, 1985); O'Donovan Sexual Divisions in Law (London: Weidenfeld & Nicolson, 1985).
40. Guardianship Act 1968, s 23, where the welfare of the child is the first and paramount consideration.
41. R Mnookin ‘Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy’ (1975) 39 Law and Contemporary Problems, 226.
42. Guardianship Act 1968, s 23(2).
43. C Bridge ‘Shared Residence in England and New Zealand A Comparative Analysis’ (1996) 8 CFLQ 12.
44. Communicated to the author in Wellington, New Zealand in September 1995.
45. Studies by Barry & Henaghan ‘Mediation in the Family Court’ (1986) 1 Family Law Bulletin, 84, and Harland ‘Custody and Access Orders: Interviews with Parents about their Court Experience’ (1991) Dept. of Justice, confirm that participants in mediation conferences approved of judges taking the lead and being directive. Wellington judges confirmed this to the author.
46. Barry & Henaghan (1986) above.
47. Ingleby In the Ball Park: Alternative Dispute Resolution and the Courts (Carlton: Australian Institute of Judicial Administration, 1991).
48. Ingleby ‘Court Sponsered Mediation: The Case Against Mandatory Participation’ (1993) 56 MLR 441.
49. Henaghan ‘Legally Rearranging Families’ in Atkin & Henaghan (eds) Family Law Policy in New Zealand (Auckland: Oxford University Press, 1992) p 93.
50. Family Proceedings Act 1980, s 16 allows either party or the mediation judge to determine that that judge should not hear the proceedings. In practice it is exceptional for a judge to disqualify himself in this way. See Webb et al Family Law in New Zealand (Wellington: Butterworths, 1993) para 2.11.
51. Throughout the country there are 29 Family Court Judges sitting variously in 64 Courts, which are divisions of the District Court.
52. Barry and Henaghan (1986) op cit.
53. Family Proceedings Act 1980, s 15(2).
54. Ingleby ‘Court Sponsered Mediation: The Case Against Mandatory Participation’ (1993) 56 MLR 441 at 450.
55. Hereafter The Review.
56. The Family Court was initially established following recommendations made by the Royal Commission on the Courts in 1978 and emphasised conciliation. Terms of Reference for the enquiry in ‘Review of the Family Court’ (1993) n 1 p 28.
57. The legal role in the mediation conference is perceived by some lawyers as decidedly adversarial. See Barry and Henaghan op cit.
58. The Review pp 22 and 27.
59. Ibid, pp 41–48.
60. The Review p 49.
61. The Reivew, pp 52–64.
62. Ibid, p 66.
63. The Reivew, p 60.
64. Ibid, p 68.
65. Ibid, p 67.
66. Ibid, pp 71–73.
67. The Review p 157.
68. The method of attaching income would be modelled on that used under the Child Support Act 1991.
69. Particularly Ms Innes Kent, Mr I Macduff.
70. Section 2 of the Draft Report of the National Working Party on Mediation, (1995) New Zealand. (Pages of the draft report are not numbered). Other models of mediation highlighted by the Draft Report include ‘evaluative’, ‘community based’, ‘narrative’, ‘therapeutic’ and ‘hybrids’.
71. ‘Looking to the Future: Mediation and the Ground for Divorce’ Cm 2799 London HMSO p 37, Family Law Act 1996.
72. Section 1 of the National Working Party on Mediation, Draft Report, above, citing Tillet (1990).
73. Above. See also Gulliver ‘On Mediators’ in Hammett (ed) Social Anthropology and Law (London: Academic Press, 1991); M Roberts ‘Who is in Charge? Reflections on Recent Research on the Role of the Mediator’ (1992) 5 JSWFL 372.
74. M Roberts above p 382.
75. Tyler ‘Procedure or Result: What do Disputants want from Legal Authorities?’ in K Mackie (ed) A Handbook of Dispute Resolution: ADR in Action (London: Routledge, 1991).
76. Counsellors, a counselling co-ordinator in the Wellington Family Court and Family Court Judges all expressed concern about this to the author.
77. Ogus et al Report of the Conciliation Project Unit on the Costs and Effectiveness of Conciliation in England and Wales (1989) Lord Chancellor's Department.
78. Walker, McCarthy and Timms ‘Mediation: the Making and Remaking of Cooperative Relationships - An Evaluation of the Effectiveness of Comprehensive Mediation’ (1994) Relate Centre for Family Studies, Newcastle, p 79.
79. ‘Looking to the Future’ op cit at para 5.4 for example, where it is claimed that mediation can deal with feelings of hurt and anger.
80. Table 1 of the Draft Report of the National Working Party on Mediation (NZ) sets out, in a comparative way, the differences between counselling, mediation and legal practice, under the respective headings of ‘goals, values, focus, control over dispute definition, expression of feeling, role requirements, nature of outcomes, procedures.’
81. Dingwall and Greatbach 'Divorce Mediation - ‘The Virtues of Formality’ in Eekelaar & McLean (eds) A Reader on Family Law (Oxford University Press, 1994) p 391. The authors cite the extent of mediator control over outcomes as a recurrent finding in their ten year research programme. Note though the criticism of their research methodology by Roberts, above, p 376.
82. See Ingleby's ‘definitional argument’ in (1993) 56 MLR 441 at 445.
83. Draft Report, op cit at para 1.5, 1.6.
84. The Review op cit p 119. See also Dingwall & Greatbach 'Divorce Mediation-The Virtues of Formality? in Eekelaar & McLean (eds) A Reader on Family Law (Oxford University Press, 1994) p 396 where the authors claim the formality of the court room clarifies and makes explicit the rules, procedures and ‘source of power’.
85. See Fricker and Walker ‘Alternative Dispute Resolution - State Responsibility or Second Best?’ (1994) Civil Justice Quarterly 29 at 39.
86. Ibid p 38.
87. Cain in Informal Justice? Matthews (ed) (London: Sage 1988), cited by Ingelby in ‘Court Sponsered Mediation: The Case Against Mandatory Participation’ (1993) 56 MLR 441 at 450.
88. Ingleby (1993) 56 MLR 441 at 451.
89. S Roberts ‘Mediation in the Lawyers’ Embrace' (1992) 55 MLR 258 at 262.
90. ‘The Review of the Family Court, A Report for the Principal Family Court Judge’ (Wellington 1993) paras 5.7.16 and 5.7.15.
91. ‘Looking to the Future: Mediation and the Ground for Divorce’ Cm 2799 London, HMSO pp 374; Family Law Act 1996 ss 8(9)(f) and 12(2)(a)(ii) and (b)(ii) with respect to information, s 13 with respect to directions to attend mediation and s 27 for the provision and availability of mediation.
92. Three months after an initial meeting a party can file a statement of marital breakdown, Family Law Act 1996, s 8(2); the period of consideration and reflection is then nine months, s 7(3) extended by a further six months where there is a child of the family under the age of 16.
93. ‘Looking to the Future: Mediation and the Ground for Divorce’ Cm 2799 at para 5.27.
94. Family Law Act 1996, ss 9, 11, and Schedule 1.
95. Cm 2799 at para 4.38.
96 Family Law Act 1996, s 23 provides free marriage counselling during the period of reflection and consideration for parties eligible for full legal aid.
97. Cm 2799 at para 5.4.
98. Ibid para 5.5.
99. Ibid at para 5.6.
100. Ibid at para 5.7.
101. Ibid at para 5.20.
102. Cm 2799 at paras 5.4 and 5.21. During mediation referral to marital counselling is ‘appropriate to attempt to save the marriage’ and ‘can occur at any time and the door to reconciliation is always kept open…’.
103. Family Law Act 1996, s 8(6)(b).
104. Orbach & Rosenblatt ‘Therapy before Mediation before Divorce’ [1996] 26 Fam Law 435.
105. Cm 2799 at 5.28.
106. Family Law Act 1996, s 29 (3F)(b).
107. Family Law Act 1996, s 29(3H) (a).
108. Family Law Act 1996, s 27(3).
109. Family Law Act 1996, s 29 (3H).
110. The Legal Aid Consultation Paper Cm 2854 had recommended restricting legal aid applications to cases where mediation had been refused, by the parties, for ‘acceptable reasons’.
111. Family Law Act 1996, s 8.
112. Gwynn Davis ‘Divorce Reform - Peering Anxiously into the Future’ [1995] Fam Law 564.
113. Family Law Act 1996, s 8(3).
114. Family Law Act 1996, s 8(2) and (5).
115. Family Law Act 1996, s 13 (1) (a) and (b).
116. Family Law Act 1996, ss 13(2) and 14(1).
117. District Judge Bird ‘The Shape of Things to Come’ [1996] NU 949 at 950.
118. Family Law Act 1996, s 8 (9)(b)and (c).
119. See Davis et al Simple Quarrels (Oxford University Press, 1994).
120. Davis ‘Divorce Reform-Peering Anxiously into the Future’ [1995] Fam Law 564, at 565
121. Barry and Henaghan ‘Mediation in the Family Court’ (1986) 1 Fam Law Bulletin 84.
122. See for example, Richards ‘But What About the Children? Some Reflections on the Divorce White Paper’ [1995] 7 CFL Q 223; Bridge ‘Shared Residence Orders in England and New Zealand: A Comparative Analysis’ [1996] CFLQ 12.
123. Guardianship Act 1968, s 30.
124. ‘The Review of the Family Court: A Report for the Principal Family Court Judge’ (1993) op cit at 87.
125. Para 5.33 of the White Paper ‘Looking to the Future: Mediation and the Ground for Divorce’ [1995] Cm 2799 states that ‘thinking in relation to the involvement of children in mediation is developing rapidly…future mediators will be specifically trained to deal appropriately with the interests of children…’.
126. Family Law Act 1996, s 27 (8)(a)and (b).
127. Family Law Act 1996, s 1l(4).
128. Douglas, Murch & Perry ‘Supporting Children when Parents Separate - A Neglected Family Justice or Mental Health Issue?’ [1996] 8 CFLQ 121 at 130.
129. ‘A Review of the Family Court: A Report For the Principal Family Court Judge’ (1993) op cit 151.