Advocates for women are calling for a Commission of Inquiry into failures in the Family Court system. Photo / 123RF
In the face of accusations that the Family Court system is "broken" and "brutal", the Government has rejected pleas for a Royal Commission of Inquiry into the court system by advocates who say urgent reform is needed.
Their view is backed by a United Nations women's rights committee which, in 2018, recommended that New Zealand establish a commission of inquiry and asked for a progress report by 2020. The 23-strong UN committee overseeing the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) treaty wanted New Zealand to address "the root causes of the drawbacks for women, the obstruction of justice for women and the hindrances to their safety inherent in the family court system".
The committee says that hasn't been addressed, a view supported by the Backbone Collective, formed in 2017 to provide feedback from its 2000 women members on how the system responded to them when they experienced violence and abuse. Many have gruelling stories to tell, traumatised by a family court system they say allows litigation to drag on for years in an adversarial, win-at-all-costs process.
The collective has repeatedly asked the Government for a commission of inquiry into the Family Court but has had little response.
In its response to New Zealand's 2020 progress report, CEDAW said New Zealand's lack of action was not good enough. Back in 2018, the then Justice Minister Andrew Little rejected CEDAW's recommendation for an inquiry, opting instead for an independent panel to review the family justice system, particularly with regard to the care of children. The panel's report in June 2019 included 69 wide-ranging recommendations on the law, policy and practices that currently govern care-of-children matters.
But critics say the scope was too narrow and neglected to address concerns over abuse women reported facing in the Family Court system. Sharing their experiences with the Herald, women described the court system as "broken" and "brutal". Many had spent years battling ongoing financial and litigation abuse during prolonged relationship property litigation which often included child guardianship issues.
(The Family Violence Act 2018 now includes financial abuse as a form of psychological abuse.)
CEDAW acknowledged the recommendations in the Government's 2019 review but last year said they were not wide-reaching enough. Its recommendation for an inquiry had not been implemented and the quality of information provided was unsatisfactory, it said.
CEDAW wants New Zealand to address the drawbacks and obstruction of justice women faced in the Family Court system, and to make the legislative and structural changes necessary to make the courts "safe and just for women and children, in particular in situations of domestic violence".
New Zealand's progress on the CEDAW treaty was due this month but due to delays caused by the Covid-19 pandemic has been postponed by the committee until July next year. But there's unlikely to be much movement in a year's time.
Recently appointed Justice Minister Kiwi Allan told the Herald that the Government was "not currently considering" a commission of inquiry as requested by CEDAW. A long-term project to "transform" the family justice system was underway following the panel review. In May 2020, the Government allocated $62 million over four years to respond to issues exacerbated by Covid-19, including delays and additional stress on children and families, she said.
Advocates say although that work will help, particularly where children are concerned, it does not address issues like financial and litigation abuse, and violence against women.
Backbone Collective co-founder Deborah Mackenzie says Family Court cases do not fit one mould, particularly where some form of abuse is involved. Violence and abuse presents in different forms, she says, including psychological, financial, litigation, sexual, technology abuse, and using children as a weapon.
"From what victim-survivors have shared with Backbone regarding how family violence is responded to by the people working in the court, it's fair to say the specialist knowledge required about violence and abuse, particularly coercive control and the impact on children, is not there," Mackenzie says.
Fuelling problems in the Family Court is the outdated Property (Relationships) Act 1976. The Law Commission produced 140 recommendations in its 2019 review which the Government is yet to implement. Allan, like Kris Faafoi before her, told the Herald that reform would be years away given the scope of the commission's recommendations, the complexity of the law, and the engagement needed. It would need to be balanced against other Government priorities, she said.
University of Auckland law professor Mark Henaghan thinks the Government's heavy workload is not the only reason the new legislation will not see the light of day for years. He predicts lobby groups and those with vested interests will work to push aside the more contentious parts of the review, such as the commission's recommendation that the courts have greater access to trusts.
"The trust people for example are a very strong lobby. It's a major part of legal practice and it's been extremely lucrative for the profession," he says. "And of course no government, when things are quite tight between the two parties at the moment, wants to go to anywhere controversial and that's the sad reality of it."
He describes the ongoing litigation allowed by the Family Court as "psychologically damaging and financially ruining", and harmful to the health and wellbeing of families, including children.
Divorcee and women's advocate Sarah Sparks says the court system does not take into account the effect on families and children.
"It's not like a bad business deal that has gone wrong and can be sorted out using numbers. In a commercial sense, that's fine. But when you're talking about relationships and people and families that is not fine. "
The methodology is wrong, Sparks says, and so is the court culture. Those working in the court system need to listen to some of the "war stories" so they can understand the collective impact the tactics and "gamesmanship" has on people, often women.
"It's almost like it's acceptable but it's not. It's abuse."
The 36-year-old died on December 19.