Mahvash Ikram
Delays in the Family Court have reached the point where fixtures are being allocated well into 2027 and some are even being set down for 2028.
Judge Alan Goodwin
And practitioners could do a lot to reduce the backlog, attendees at a recent family law conference, hosted by The Law Association, were told.
Long-winded affidavits, applications filed in haste, and undefined relationship property claims are clogging the courts, say conference presenters Judge Alan Goodwin from the Manukau Family Court and Judge Annette Gray from the Auckland Family Court.
Family court proceedings are routinely stalled or reset because of the way counsel file and prepare their cases, Goodwin said.
As an example, he cited at least two or three long cause relationship property hearings which had fallen over this year because on the morning the hearing were due to begin, it was discovered that a third party held an interest in the property and had not been served.
Long cause fixtures are extended defended hearings with complex issues that are expected to last more than five days.
It is primarily these hearings that are now being set down for 2028. “It’s very dispiriting for parties to think they have to wait that long,” Gray said.
Filing oversized evidence
Gray was critical of lengthy affidavits which prolong hearings and increase costs for both clients and the courts.
“I find with affidavits that a client might want to tell their entire story, and you’ve got a 50-page affidavit with 200 pages of exhibits of every text message they ever sent to each other,” she said
Cutting it back to what is genuinely in dispute can take a three-day hearing down to a single day.
“Those affidavits must take hours of work from counsel, and it would be much more helpful if they were pared back to what’s actually going to be in dispute between the parties.”
In instances where English is a second language, affidavits are translated, meaning substantially larger bundles, with copying costs that run to thousands of dollars.
The same pattern appears in relationship property, Goodwin said.
“[I] have had a… multi-day hearing, where there were eight or nine bundles, and I think only one bundle actually got referred to during the hearing.”
Even multi-day hearings will turn on focused issues, he said, and assuming a thick file means a four- or five-day fixture is lazy.
“Not everything is in disagreement. I’m a great fan of trying to promote agreed facts.”
Delays in parenting matters
In parenting disputes, most “without notice” applications are filed by lawyers, Goodwin said.
These ask the court to restrict one party’s contact with the child before that party is notified and are decided by a judge on the papers. However, they often prolong the client’s case, he said.
Such orders usually result in supervised contact with one parent and cannot be reversed without a hearing, which can take months. But in most cases the court ends up deciding the order was not needed in the first place, Goodwin said.
Each judge on duty looks into 18 “without notice” applications, a day and each can take between 20 and 25 minutes to decide.
“It’s very hard when you’re faced with only one side of the story… There are clear risks and you’re thinking what’s going to happen if you don’t make orders.”
Similarly, breach applications can also cause significant delays when filed mid-proceeding and without considering other options, he said.
Under s 68 of the Care of Children Act 2004, one party can ask the court to admonish the other for breaching a parenting order, or to vary or discharge the order. But before the court can admonish anyone, it must make a formal finding that the breach occurred.
“It’s not a case of just throwing something in and expecting some judge to tell somebody off,” Goodwin said.
“You can get stuck into a bit of a spiral of going backwards instead of going forwards because you’re having to deal with the breach.”
Such applications are often made in a knee-jerk reaction to a breach of the parenting agreement, with little consideration of the outcome the client wants, Gray said.
“If you’re making a s 68 application, have a really clear idea what remedy is being sought.”
Where the parenting order no longer suits the family, both judges said the answer was an application to vary its terms, not a s 68 application to admonish the other party.
‘A general punt for property’
Several relationship property cases return to the discovery stage 18 months to two years after they were filed, when counsel and their clients manage to figure out what the claim actually entails, Goodwin said.
For example, many applications never set out which assets are being claimed or on what basis. “It’s just a general kind of punt for property without actually thinking and defining where that case is and where the claims are.”
Late claims can have the same effect. A claim against a family trust, or one under s 182 of the Family Proceedings Act 1980, which lets the court redistribute assets of a trust set up during the marriage when the marriage ends, can be filed a year into a proceeding. This sends the case back to discovery, Gray said.
Use of settlement conferences and “the magic of mediation” can help resolve a case within a week or two, because it is often the first time the parties have sat across a table and had a reality checks. Compared with the cost of a multi-day hearing, Gray said settlement conferences are worth it, even where the case is complex.
Other delays
Not all the pressure comes from counsel, the judges acknowledged.
The fastest-growing work in the Family Court is applications under the Protection of Personal and Property Rights Act 1988, which allow the court to appoint someone to make decisions for a person who can no longer make them alone. Goodwin put the growth down to the ageing population.
Currently, Family Court associates are struggling to deal with the volume of those applications, he said. A judge in a metropolitan court works through 40 or 50 files on the papers in a day, and up to half can be matters only a judge can determine.
Missing consents make matters worse, Gray said. Files stall where the court-appointed lawyer has reported back but no consent has been filed from a rest home or an estranged family member. The file then comes back a second time, creating unnecessary delay, Goodwin said.
I am a family mediator and the the reason mediation works so much of the time is because it helps parents/caregivers to work things out together which is essential for their ability to have effective, ongoing interactions.
Because the Family Court process is so adversarial it does nothing to support people to build a positive co-parenting relationship. Sure, there are many cases that do have to be resolved in court but many would be better served if lawyers weren’t involved. A ‘one side against the other’ system destroys the ability for families to find a way to work better together in the interests of their children.
Taking tens of thousands of dollars from parents who are in an extremely stressful and vulnerable time in their life, and putting them in a system which creates more conflict rather than trying to reduce it is pointless, cruel and wasteful.
The whole Family Court system needs a big overhaul, to put families at the centre, helping them to work better together in the best interests of their children.