Opinion: Family Court Review – go where the evidence leads

In 2010, The New Zealand Family Court (thereafter “the Court”), managing proceedings covering 23 Acts of Parliament, received 68,666 new applications to assist in resolving various types of family conflict, with Court expenditure reported by Justice Minister Simon Power having increased by 63% as at 2009 – 2010, from $83.9 million to $137 million p/a, since 2005 .

In 2009-2010, $60.7 million p/a of Court expenditure was allocated to Counselling, Mediation, and Psychological reports, $50.3 million p/a of Court expenditure was allocated to Legal Aid, $26.1 million of Court expenditure was allocated to Court operating costs, and $52.3 million p/a of Court expenditure was allocated to Care of Children applications.

Increased expenditure has reportedly not resulted in better client or service outcomes, particularly for children. In fact, it does not appear to be clear as to what client or service outcomes are being measured, how they are being measured, or by whom. The Ministry of Justice recently confirmed that in the 31 years that the Family Court has been in existence, Outcome measures for service providers have never been collected.

Some Outcome research has indicated that every child who is submitted to the Family Court process loses an average of 5 years of life expectancy, and most Parenting Orders and Mediation agreements arbitrated by the Court have a shelf life of around six months before they “fall over”, costing around $5000 – $7000 per party per application.

Processing times for cases are slow: 537 adjournments were recorded in 173 Care of Children cases sampled by the Court in the 2011 public consultation paper, awaiting various types of specialist reports; 165 adjournments were recorded in the same sample, awaiting either the appointment of Counsel for Child, or appointment of Counsel to assist the Court; while 150 adjournments were recorded in the same sample for judicial monitoring of proceedings.

There are also some worrying aspects of role responsibility by various Court-appointed Practioners. Family Court Lawyers acting for applicants and respondents hold their primary loyalty to the Court, a secondary loyalty (termed “Collegiality” in the legal profession) to their legal colleagues, and a third –tier tertiary advocacy role “loyalty” to their clients. Counsel for Child Lawyers, who receive just three days training in working with children, are not actually responsible for the accuracy of the reports that they deliver to the Court.

Psychologists have been statutorily gifted what the Outcome Research reveals is a false “expertise elevation” in their role as specialist report writers and experts on what is best for a family or child in crisis. The type of professional role, level of training, and years of experience account for just 1% of a positive client service outcome in the delivery of an effective intervention. There is not even a standardised template in the Court for specialist report writing.

Counsellors and Mediators are appointed by the Court on ideological, as opposed to evidential grounds – being a member of a Professional Association is identified in the Outcome Research as making absolutely no difference to achieving positive client service outcomes, and nor does such membership have any significant influence on Practitioner accountability. No-one in the Family Court system is measuring client service satisfaction, and no meaningful feedback is being sourced from consumers of Court services for the current Family Court Review. The false premise of “if we have worked with clients, we know what is best for clients” is thus still alive and well at policy level.

The New Zealand Family Court thus presents as a fractured matrix of ideology, special interest groups, popular opinion, questionable professional practice, and with a none-too-subtle allergy to evidence in terms of practicing the principles of what actually works when assisting families in crisis.

It is sincerely hoped for by this Counsellor, Family Mediator, and Outcomes Researcher that the Family Court Review goes where the evidence leads, as opposed to in the direction of the most well-funded and / or vociferous lobby group.

Steve Taylor is the Director of 24-7 Ltd, a private practice Counselling, Supervision, Mediation, and Training organisation based in Auckland. Steve is currently writing a Master’s Thesis on Social Service Outcome Research, and will be making a formal submission to the Ministry of Justice Family Court Review.