Family Court changes that could affect YOU

In its efforts to balance the books, the present Government is seeking to downsize the role that lawyers currently play in Family Court processes. But at what cost? Every year, some 58,000 New Zealand families are involved in Family Court proceedings. This equates to approximately nine percent of the population, which has an estimated 520,000 families.

These proceedings are often traumatic, involving separation issues, relationship property, children and domestic violence. Moreover, the parties are not always financially equal, with one party having been the money-earner while the other brought up the children. Despite both parties in law having an equal right to relationship property, at the date of separation the employed party often has much greater access to funds. Relationship property law is one area of law that is complex and may be daunting to the parties. The cost of legal proceedings may also be high with many not being aware that they may be eligible for legal aid.

In the case of Family Law, balancing the Government’s books by cost-cutting will actually make proceedings more expensive for many. The Government proposes to make attendance at a Parenting Through Separation Programme and the Family Dispute Resolution Service (FDR) compulsory for both parties before a hearing takes place. While not in itself a bad idea, FDR will carry a fee of $897.00 which, it is proposed, both parties will share. Legal aid will not be available to cover this cost.

If these preliminary steps are unsuccessful, formal proceedings will fall into one of three categories: Fast Track, Simple Track and Standard Track.

Urgent applications for court assistance (such as where domestic violence is involved) will be placed on the Fast Track. Thankfully, parties on the Fast Track will remain able to access legal representation and legal aid (if they meet the specified criteria).

On the other hand, matters deemed relatively basic will be placed on the Simple Track. Even though such matters may be anything but simple, parties on the Simple Track will have no recourse to a lawyer or to legal aid.

The Standard Track will deal with more complex matters such as day-to-day care or one parent’s desire to relocate with the children to a new region. Parties on the Standard Track will be required to represent themselves up until the formal hearings, and will not be eligible for legal aid, or legal representation, until then.

In this preliminary part of the proceedings lawyers are presently able to assist clients with all aspects of the proceedings up to the date of the Family Court hearing. This assistance may include drafting and filing legal documents, explaining and advising on the law and the implications of certain outcomes, attending Judicial Conferences, aiding clients in accessing personal information from government agencies such as WINZ or the Police, preparing evidence in a manner which is admissible and gathering supplementary information as exhibits for affidavits.

So what can lawyers do that the lay person cannot? Lawyers are trained advocates. They have a specialised working knowledge of law and procedure which they apply for the benefit of their clients. The law in family court proceedings can be complex, especially where there are multiple claims. Lawyers are able to identify which matters are urgent, apply the law to the circumstances of the individual case, advise on options that may not be apparent to the client, and advocate for the client’s best interests.

Lawyers have the added advantage of being able to communicate directly with the other party’s lawyer (or directly with that party where he or she may not have engaged their own lawyer) where the circumstances are tricky or inflammatory. In some cases, where a disenfranchised party feels unable to communicate frankly or competently, the lawyer is the client’s critical mouthpiece.

Furthermore, lawyers are there to help explain to you some very complex areas of law and to give you advice on the best courses of action for your circumstances.

Should the proposed reforms be put into action, everyday New Zealanders stand to be deprived of a vital service in their pursuit of justice.

 

November 2012