Saturday, 8 June 2013

Law of the jungle??

The latest version of the Government's family law reforms will create a "law of the jungle" because many people won't be able to afford justice, lawyers say.

The Family Court has changed over the years. Ask any Family Court Lawyer and they will comment on how every year it keeps changing. One of the changes some years back, was to make it more 'user friendly' basically because a number of litigates were choosing to represent themselves, they had to make the process easier. The process IS easy. Anyone can self-represent in the family court, it's highly recommend to not have a lawyer as lawyers only see it as revenue gathering and not actually about the families. It is also not expensive to go through the Family Court.

Parliament's justice and electoral committee has made no concessions on a proposal to replace free counselling for separating couples with compulsory pre-court mediation by private dispute resolution services for a fee, expected to be about $900, on top of a $220 fee introduced last year for applying for a care-of-children order.

Good. Why should it be free and paid for by the tax payer for parents to engage in immature behaviour in the courts and use children as weapons in their adult games.

It has also specified for the first time that couples arguing over who gets the children will probably pay a third of the costs of reports ordered by a judge from psychologists or other experts, and all costs if a parent wants a second opinion.
They will also have to pay an unspecified share of the costs of a lawyer for the children, although the bill greatly reduces the number of cases requiring lawyers for children by allowing judges to decide if it is necessary for a child's wellbeing.

Sigh, this is already established (for sometime now) in the current system of the Family Court were parties can AND do end up paying these costs. It always interests me why they do this, its already in the law, but make out like it isn't?

Otago University law school dean Mark Henaghan, the lead author of Butterworths Family Law in New Zealand, said the fees would drive many parents to accept what the other parent or a mediator proposed, even if it wasn't in children's best interests, because they could not afford to fight.
"The law of the jungle means the more powerful party will dominate," he said.
"We are abandoning people to their own devices, which ends up in more fights, more arguments, and that has consequences for the children."

I total disagree with this. Already now, people pour heaps of funds into their legal battles. These changes will not change that. These 'fees' are implemented in Australia Family Law (Which New Zealand is finally modelling) and it is working just fine. You can't get better than shared care like the norm now is in Australia.

The Law Society's family law chairman, Garry Collin, said provisions banning lawyers from acting for separating couples until after mediation, and then only at a judge's discretion for an initial settlement conference, would not stop wealthy parents paying for legal advice outside the court but would bar partners on lower incomes from getting advice on legal aid.
"Those who are wealthy will do just fine," he said. "The poor are often women who don't have income, can't pay for advice and won't get it."

Well, well, well, There's a name I know. Gary Collins. I have had him in the past. He was appointed a 'lawyer to assist' and he sided completely with me on the case. I suspected he would given my argument was based on the law. I don't waste courts time on vexatious, mud slinging matches. And the courts don't like it either. Anyway, I somewhat disagree with what he has said. Lawyers should be banned completely! Its the lawyers that cause the most trouble in cases. They see it as easy money and problems arise when lawyers don't advise their clients appropriately. Case example, would be the one Gary Collins was involved in. Stephanie Marsden lawyer for the other party has lost against me twice now, because she can't advise her clients right. In the 2009 case I had to sit there and listen to her bleat on for an hour and a half, I spoke, what 10 minutes?? and won. If she had bothered to tell her client that my case was strong (and had taken note of what Gary Collins filed), it would have saved him thousands of dollars. Then she came back for more. Her and her client got the biggest blasting from Judge Russell and she ran away with her tail between her legs- not before posting her bill to the client however.
There is nothing stopping 'poor women' as he puts it, from getting legal advice. There is the community law branches that help out all the time.

The select committee has allowed up to four hours of legal advice on legal aid before a dispute reaches court and up to three hours' counselling before mediation.
It says about 60 per cent of disputes going to mediation would qualify for aid.
"People above the [legal aid] threshold would be required to arrange FDR [family dispute resolution] privately and pay for it themselves," the committee said.
"FDR is likely to be less expensive than hiring a lawyer and proceeding to a defended hearing in court."

Totally agree. I think it will be a good outcome. All that is needed now is for shared parenting to be the default position for when parents separate, have Judges and Lawyers held accountable when they get it wrong and HAVE to apologise to the families and I think New Zealand children may have some chance at having a normal childhood without being alienated from one parent by another and by the Courts.

User-pays justice
Separating parents will pay:
• $220 fee to apply for a care-of-children order.
• $900 fee for compulsory mediation.
• One-third of the cost of expert reports ordered by a judge.
• All of the cost of second opinions.
• Some of the cost of lawyers for children.

From another long time Family Court advocate, says;

The Family Court Review was addressed at the quality of outputs and the cost of operation of the Family court.
Although in essence this would mainly involve social issues, the Committee’s focus has been on detailed legislative changes. They have avoided looking at the social issues that are the foundation for having a Family Court at all. Their report does not address the issue of how well Family Court operation parallels the legislation on which it should be based. Perhaps this is unsurprising, given the background and training of most of the members of the Committee and the extreme difficulty for them to get a window on what happens in Family Court.
The detailed changes to legislation can be expected to be very constructive, if the Family Court follows them?
To fully address the social issues would be a huge undertaking. Given the huge financial and social costs of social policy, this is long overdue. Many of the submissions addressed issues ranging from quality of children’s upbringing, parenting skills, training and parental suicide to the technical legal issues. The report has ignored the wider social issues, despite these being where the largest costs and opportunities lie.
Alternative Disputes Resolution (ADR) will be helpful and cost saving, for the people who generally can solve their own disputes anyway. The parties who slug it out in Family Court are those like Kay Skelton, who take advantage of the perverse opportunities that the Family Court secretly makes available. This does not serve children, in any way. She was only brought into line, when her long duration abduction of Jayden made it impossible to hide from the public. Hundreds of thousands of children suffer a little each day as a result of parents responding to the perverse incentives of the Family Court.
Public policy is about giving positive incentives to parents and to Family Court workers to behave constructively. The Government has not actively managed incentives within Family Court. These people make more money by winding up disputes and prolonging them. This does not serve children and is a dangerous perverse incentive. When a judge does not order costs or other penalty against a parent breaking court orders or who provides dishonest information, then the incentive is against the interests of the children and the parties too. Any parent of a toddler understands this principle.
It is only by encouraging good faith negotiation that all parties will receive proper protection. The ADR providers will do this, as their incentives encourage this. However, the available recourse to the existing Family Court will hamper the ability of the ADR providers to deliver good outcomes, especially in cases where one or both parents have poor mental health or anti social behaviours. These people need strong positive incentives, an area in which this legislation offers only minor improvements.
Providing constructive incentives for good behaviour and good faith negotiation is the single most critical aspect of Family Court success or failure.

My own statement of conflict of interest:
I have children who might one day be forced to deal with Family Court, so I have a vested interest in family disputes being solved competently and cost effectively. I have more hope that ADR can serve the public than Family Court, by allowing the public to manage ADR employment. I do not earn any income related to Family Court. I sometimes give my time to help people forced to deal with Family Court, usually fathers, but some mothers too. This costs me time and a little money.

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