Controversial Changes To The Family Justice

International Journal of Law, Policy and The Family, 2015, 29, 183–204
doi: 10.1093/lawfam/ebv001
Article
Controversial Changes to the Family Justice

System in New Zealand: Is the Private Law/
Public Law Division Still Useful?
Bill Atkin*
Professor of Law, Victoria University of Wellington, New Zealand.
*Corresponding author. E-mail: Bill.Atkin@vuw.ac.nz
Downloaded from http://lawfam.oxfordjournals.org/ at :: on September 23, 2015

ABSTRACT
Many countries have grappled with the mechanisms for dealing with the care of chil-
dren on family breakdown. To what extent should the state play an active part? To
what extent should the system rely on the principle of self-determination? Until
recently, the trend has favoured a major facilitative role for the state, with a blend of
judicial and non-judicial procedures in assisting parents to resolve differences and to
ensure that the welfare of the child and the child’s views are advanced. However, fiscal
constraints have led to cutbacks, undergirded, it is suggested, by an ideology that runs
against state involvement and is suspicious of family court and family lawyers. New
Zealand has recently introduced user-pays mediation as a compulsory step before most
issues can go before a Family Court Judge. Limitations on the role of lawyers and
restrictions on the hitherto automatic appointment of a lawyer to represent the child
make access to justice harder. Self-litigation is strangely built into the new system.
Gaps in the legislation on mediation raise fundamental questions, for example, about
who can attend and what place, if any, children play in mediation. Important matters
such as these are left to the contract between the mediator and the parents, a form of
‘privatization’ and ‘secret justice’. It is argued that this is based on the dubious distinc-
tion between private law and public law. In this area of the law, resort to the discourse
of ‘private law’ is misleading and should be discarded.
I . N E W SY S T E M D R IV E N B Y ID E O L O G Y ?
How to deal with family breakdown has been a crucial social concern since the end
of World War II. In many jurisdictions the formal laws on divorce have slowly been
reformed and made easier, along with those dealing with children and finances.
Much has also happened to the procedures for assisting parties with family law dis-
putes. As a generalization, policy-makers have seen value in spending money on a
blended system involving judicial and non-judicial mechanisms for easing the passage
through separation and divorce. This has often involved the creation of specialized
family courts and the use of non-legal professionals to try to avoid conventional
court hearings.
C The Author 2015. Published by Oxford University Press. All rights reserved.
V
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183
184 Bill Atkin
The global financial crisis has put pressure on the funding of such blended sys-
tems. Cutbacks in legal aid represent an obvious response to the crisis and other
steps have been taken to restructure systems in ways that are supposed to save
money. Yet, if the New Zealand experience is anything to go by, such structural
changes may more truly reflect underlying ideological positions that do not in the
end have anything to do with international money collapses. The size and role of
the state are at stake. How far should the state go in helping people sort out their
family disputes and to what extent, on the other hand, should the principle of self-
determination rule? The pendulum appears to be swinging away from an active role
for the state to a lesser one. This is less true where things like partner violence or
child abuse are present, but is apparent in classic cases of separation.
Underlying recent developments is the distinction that has traditionally been

drawn between public law and private law. In the former, the law’s protective role is
to the fore in order to assist victims of abuse and those who are unable to act for
themselves. In the latter, the state may provide a framework for the settlement of
disputes but otherwise the parties themselves have the responsibility for sorting
out their lives. Within this traditional model, many variations are possible and the
ideological position of minimal intervention is by no means comprehensive. The
distinction has been blurred. The question may be better defined as one about
where to draw the line between state action and the private sphere. Principles of self-
determination and personal responsibility are no doubt very valuable but for some
caught up in the tensions of relationship breakdown they can be counsels of perfec-
tion that belie the realities. So we need to ask whether the private/public divide
remains useful at all. Should we abandon that divide, not just when we are talking
about issues like domestic violence but also when we are examining the wide range
of family law issues?
This article focuses mainly on the procedural aspects of family justice, rather than
substantive law. It concentrates on recent controversial reforms in New Zealand,
which are driven in many respects by the non-interventionist ideology. The New
Zealand version of family justice has many more elements of ‘user-pays’ and privat-
ization than before. Some of the new ground rules are set out in legislation but a
number, most notably some critical aspects of mediation, are left to the private
contract between mediators and parties, creating a dubious scheme that may be
labelled ‘secret justice’. Some of the changes in New Zealand echo what has hap-
pened in other countries such as Australia and UK,1 but, because of an ostensible
antipathy towards courts and lawyers, it may be described as an extreme model.
Positive features are over-shadowed by the negative ones.
II . T HE M O V EM E NT T O WA R D S FA M I LY C O U R T S
In earlier times, family disputes were seen largely the same as other civil cases. Few
concessions were made to the distinctive features of such cases, the emotional
aspects and the knock-on effects for others such as children. In New Zealand, the
impoverishment of this approach was identified by a Royal Commission on the court
system that reported in 1978.2 The report made a wide range of recommendations
but the stand-out one was the creation of a Family Court. The Family Courts Act
Controversial Changes to the Family Justice System in New Zealand 185
was enacted in 1980 and the Family Court came into existence in 1981. It has there-
fore operated for over 30 years.
The special attributes of the Family Court included the appointment of judges
with special aptitude and experience for family cases, the relaxation of some of the
formalities of the ordinary courts, the use of experts such as child psychologists,
close links to non-judicial counselling (a conciliation arm), the use of judge-chaired
‘mediation conferences’ prior to a formal hearing, and privacy in relation to proceed-
ings. Another important aspect of the process was found in an amendment to the
Guardianship Act 1968 to provide for the mandatory appointment of a lawyer to
represent the child.3
The Court is strictly speaking part of the District Court, and Family Court judges
are also District Court judges. They are expected to spend some of their time doing

civil and criminal cases in order that their experience is not too insular. In the British
Commonwealth tradition being part of the District Court means that the Family
Court is an ‘inferior’ court and not a ‘superior’ one. Superior courts have greater
status and advantages such as inherent jurisdiction.4 The inferior/superior distinction
is one that may have outlived its usefulness but it remains. It could well be argued
that the Family Court should be given higher status. On the other hand, if it is to be
‘a people’s court’ and a part of local communities, then being a superior court may
not always be so suitable.
The Family Court in New Zealand has grown in scope. At various points it gained
extra jurisdiction, for example to deal with child abuse, mental incapacity, mental
health, and some inheritance cases. It has not been without its detractors. Criticism
has come for example from men’s groups but, since changes to publicity rules and
rights of attendance,5 those criticisms have been muted. The fundamentals of the
Court and its allied system of counselling and legal representation for children
remained until recently. In March 2014, this changed. The Court faces its greatest
upheaval.
The New Zealand movement towards a Family Court is echoed in other places
but of course with differences of detail. In England unified and separate family courts
were created only in 2014,6 although there has long been a division of the High
Court to deal with family issues. In Australia, the Family Court was established on
5 January 1976 and is a superior court of record.7 It has specialist judges headed by a
chief justice.
I II . UN D ER ST A ND I N G TH E N EW Z E A LA N D C HA N G E S
The recent changes in New Zealand were incorporated in the Family Court
Proceedings Reform Bill. This was enacted in 2013, when it was split into various
separate Acts, the main ones being amendments to the Care of Children Act 2004
and the Family Courts Act 1980, and a new Act called the Family Dispute
Resolution Act 2013. The key provisions were brought into force on 31 March 2014.
The legislation did not have wide parliamentary support, eventually passing by just
4 votes (61 in favour, 57 against). Cutbacks have also occurred to legal aid, although
not as drastically as the Legal Aid, Sentencing and Punishment of Offenders Act
186 Bill Atkin
2012 in England and Wales (LASPO), which has effectively removed legal aid from
private family matters.8
The previous system, as partly explained in Section II, had several hallmarks
including:
• An integrated approach whereby counselling and other services were seen as

clearly linked to the Court, even if carried out by independent professionals;
• Ready access to the Court;
• An endeavour to avoid a full adversarial hearing; and
• Legal representation, in particular for children.
The new version eats away significantly at the first, second, and fourth of these

and advances the third as almost an overriding priority. Some of its hallmarks are:
• The centrality of mediation;

• A system separated into various silos;
• A major reduction in ready access to the Court;
• Significant barriers to legal representation;
• Significant costs to be incurred by the parties;
• A significant element of secret justice, with secret rules and procedures; and
• Exceptions for vulnerable parties such as victims of domestic violence.
Some of these will be examined in the following sections.

The path to the new system was a long one. Two decades ago, a report by Judge
Peter Boshier, later the Principal Family Court Judge, recommended that greater
emphasis be placed on mediation.9 The Law Commission made similar recommen-
dations.10 In 2008, Parliament in fact passed legislation, originally contained in the
Family Courts Matters Bill, that made mediation into one of the non-judicial avenues
for resolution of disputes. That aspect of the legislation was not implemented
because, following an election late in 2008, a change of government occurred and
the waves from the global financial crisis were starting to be felt. The government
was looking for ways to reduce expenditure, not increase it.11 Despite this, judges
found an indirect way of introducing mediation. They had power to appoint a lawyer
‘to assist the court’, an amicus curiae, and they considered that this extended to the
appointment of a lawyer with appropriate qualifications to ‘assist the court’ by carry-
ing out a mediation. This of course excluded non-lawyer mediators but one advan-
tage was that the mediators were well versed in the law.
The government was concerned about the cost of the Family Court. The
Ministry of Justice reported that Family Court costs had risen from NZ$84 million
in 2004–2005 to $137 million in 2009–2010.12 Concerns also arose in relation to
delays in the Court processes. In part this had already been addressed by the judges
themselves, with the establishment of a ‘triage’ system, under which urgent cases
were distinguished from standard ones. This triage procedure is now found in
the Family Courts Rules 2002 as amended by the Family Courts Amendment Rules
(No 2) 2014.13 The rules also set out various ‘conferences’ that can be held,
including a settlement conference, which may lead to a resolution before the case
reaches a hearing and the judge’s granting of ‘consent orders’ to reflect the
settlement.14
Under the previous system, parties could make a ‘request’ for counselling through
the Family Court.15 Lawyers would typically suggest to clients that they make such a
request. Counsellors provided six free sessions paid for by the state (latterly reduced
to three16). Statistics showed a sizeable uptake of counselling. Counsellors endeav-
oured to get the parties to reconcile or else to resolve their differences, and were
often at least partially successful. Counselling was designed, among other things,
to get people to understand the implications of the situation they found themselves
in. Mediation is much more focused on addressing the specific issues in dispute and
finding solutions rather than working through the emotional and relational aspects.

The ‘request’ model has been abolished and replaced by the new structure with
its focus on mediation. Counselling now has merely a residual role: counsellors may
be used to help people prepare for mediation,17 a somewhat obscure role for coun-
sellors. This is not actually legislated for and is provided for ‘operationally’, which
means it can be implemented or stopped at the whim of administrators without sanc-
tion of Parliament. This is part of what the present author calls ‘secret justice’ or
‘ad hoc justice’, and is a rather undesirable development. The Court can also refer
people to counselling once child proceedings have been commenced but this is
expected to be rare.18 Primary weight for avoiding the Court is now placed on par-
enting information programmes (PIPs) and private ‘family dispute resolution’
(FDR). These two steps are in most instances mandatory before the Court can be
approached. The new system has its complexities, as will emerge from the following
discussion.
IV . IN F O R M A T IO N SE S SI O N S
PIPs are based on a successful programme called ‘Parenting Through Separation’,
which has been running for several years and is funded by the Ministry of Justice.
A PIP must be approved in accordance with regulations made under the Act,
Parenting Through Separation being the only one approved.19 The mandatory
nature of PIPs is somewhat obscurely provided for in section 47B of the Care of
Children Act 2004: an application for a parenting order or a variation of an order
must contain a statement that the applicant undertook a PIP within the previous
2 years. Alternatively, the application can state that the undertaking of a PIP is not
necessary because ‘the applicant is unable to participate effectively’ in a PIP, or be-
cause the application was made without notice to the other party. The applicant
must produce evidence of attendance or inability to participate, and in the absence
of adequate evidence the court Registrar can refuse to accept the application.
The latter raises some issues. What does inability ‘to participate effectively’ mean?
Would transport problems to get to a PIP be enough? Would work demands be
enough? Would language problems for someone for whom English is a second lan-
guage be enough? Would emotional distress or mental health issues suffice? What
steps can someone who has had an application declined take? Although not provided
for, could the person appeal to a Family Court judge? A more expensive route would
188 Bill Atkin
be judicial review in the High Court. Undertaking a PIP is not that demanding, so
most people are likely to comply, but it is a pity that the legislation did not spell out
the answers to these questions. A judge dealing with a parenting order application
may send parties to a PIP so long as they have not been within the preceding two
years.20 This will be rare because attendance at PIPs will usually have occurred
before an application is made.
PIPs have a parallel in the new England and Wales law. Under section 10(1) of
the Children and Families Act 2014, parties must, subject to some exemptions,
attend a family mediation information and assessment meeting (MIAM) before
applying to the court.21 However, on further examination, the parallel is short-lived.
Only an authorized mediator can conduct a MIAM and the information provided is
only about mediation and other non-court kinds of dispute resolution. This is a far

cry from the parenting through separation programme, which is about adult and
child experiences following separation, ongoing parenting and care options, and legal
information.22
V. M EDI ATI ON
The real lynchpin of the new system is ‘family dispute resolution’. In reality, this is
mediation but the long-winded title is what Parliament chose, copying Australia.23
While this allows for flexibility and the possibility of diverting from mediation to
some other form of dispute resolution in the future, it is somewhat unfortunate that
the statutory language is not direct in specifying what FDR really is.
As already noted, mediation was legislated for in 2008 (using the word ‘mediation’)
but not implemented as such, and ‘lawyers to assist the court’ were given mediation
tasks. Prior to the 2008 Act, mediation had been ‘trialled’ with reasonable success. In
an evaluation 59 per cent of mediations produced agreement on all matters, with
another 28 per cent agreement on some matters.24 A more recent study involved inter-
views of professionals and parents.25 Two interesting outcomes were as follows:
• The role of mediation needs to be examined further. Court professionals expressed

concern about pressures of time and the need to come to settlement, and parents
found mediation to be the least helpful aspect of the Court process.
• The roles of Lawyer for Child and Expert Report Writers are pivotal, and should
be supported and enhanced.
While this is hardly a vote of confidence in mediation, it is not a condemnation. It

sounds a cautionary note about seeing mediation as the panacea to all the problems of
family breakdown.26 Certainly, the new system in New Zealand puts most of its eggs
in the mediation basket. Australia has a similar approach, but the new regime in
England and Wales is not mandatory mediation, only MIAMS, the mandatory informa-
tion sessions to help people decide whether or not to choose mediation (see above).
1. Mediation before Getting to Court

The complexities of the new system surface graphically when the law on FDR is
examined. The principal rule that mandates mediation is found in section 46E of the
Care of Children Act 2004, as amended in 2013. A person cannot apply for a
parenting order or go to court over a guardianship dispute unless ‘a family dispute

resolution form’ accompanies the application. The form must have been obtained
within the previous year: thus, for example, a form following mediation that occurred
2 years earlier will not suffice. Seven exceptions to the rule exist:
• Where the other party has already applied for an order;

• Where the application is ‘without notice’, that is, it has some urgency;
• Where it is for a ‘consent order’, that is, one that both parties agree should be
made;
• Where it seeks to enforce an existing order;
• Where separate proceedings about alleged abuse of the child are under way;
• Where a party ‘is unable to participate effectively in family dispute resolution’; or

• Where one party has subjected the other, or a child, to domestic violence. The lat-
ter phrase probably bears the meaning that it has in the Domestic Violence Act
1995, which is wide and covers physical, sexual, and psychological abuse.
The last two exceptions must be accompanied by evidence in an affidavit, suffi-

cient to satisfy a court registrar. If the registrar is in doubt, the decision can be
handed over to a judge. Questions about what is an inability ‘to participate effect-
ively’ were raised in the previous section in the context of PIPs.
2. FDR Forms
The rules on FDR forms are found in a different statute, the Family Dispute
Resolution Act 2013. This is awkward but possibly explicable. Although FDR applies
only to child cases, this could change. Having some of the operational rules about
FDR in a separate statute means that it can be extended in the future to other
matters, such as relationship property.27 Suggestions to this effect have been made.
FDR forms can be obtained in five situations. The first two are:28
• Where the mediator decides that the mediation should stop because the dispute ‘is
unable to be resolved within a reasonable time’, both parties will receive a form in
this situation, setting out what has been resolved and what remains unresolved. The
form must also state whether a settlement conference might help and whether legal
representation would be needed at such a conference. The mediator’s good judg-
ment comes heavily into play when deciding on these matters, with no obvious form
of challenge. If the dispute goes to court, the judge is not bound by the recommen-
dations about settlement conferences, but is likely to be influenced by them.
• Where the dispute has been completely resolved, the form must state the matters
that were resolved and the agreement reached. The form will enable the parties to
go to court if the agreement breaks down but, as noted above, its life is only 1 year.
The form may also be useful if the parties seek a consent order from the court.
The other three situations where a form can be obtained are:
• Where a party ‘is unable to participate effectively in family dispute resolution’

(duplicating the similar reference in the list in the previous subpart above);
190 Bill Atkin
• Where one party has subjected the other, or a child, to domestic violence (again,
as above). ‘Domestic violence’ is expressly defined in section 4 to have the mean-
ing in the Domestic Violence Act 1995; and
• Where the FDR provider decides on ‘reasonable grounds’ that FDR ‘is inappropri-
ate for the parties to the family dispute’.
Any one of these reasons may prevent FDR occurring in the first place or cause it
to stop after it has started. This means that the mediator must first filter out those
cases that should not be mediated.
Once a copy of the form has been provided to each of the parties, they can pro-
ceed to court. However, if the reason why FDR is not appropriate is that one of the
parties refuses to co-operate – the person will not attend FDR or refuses to continue

– then that party will not receive a form and will thus be blocked from the court.
This raises an issue about a party, for example the mother, who abandons FDR
because she feels pressured, disempowered, or ignored. Prima facie, she does not get
a form but the mediator retains the power to decide that FDR has ceased to be
appropriate, not because of the mother’s refusal to attend, but because of the way in
which the mediation has gone. The difference is subtle but crucial, and relies heavily
on the mediator’s good judgment. The party who has not been given a form has no
express appeal rights. Because most of what goes on in FDR is privileged, it would
be hard to produce evidence to support, for example, a judicial review claim, assum-
ing such a claim were possible.
3. Privilege
What is said in FDR is privileged and is not ‘admissible in any court or before any
person acting judicially, unless the statement is recorded in a family dispute reso-
lution form’.29 This raises two questions. Can a statement be disclosed to someone
not acting judicially? For example, if the parties have to go back to FDR in 2 years’
time, can the first mediator brief the new one? The answer is no, unless the person
who made a particular statement consents. Without such consent, the mediator com-
mits an offence. Can one of the parties disclose statements made by the other?
Except in judicial proceedings, the answer appears to be yes.
The second question is about how much detail can appear in the form. The
description of the matters that had been in dispute could be described in very curs-
ory terms or in a more detailed way that captures the real essence of the parties’
particular circumstances. The latter may reveal aspects of the FDR process that a
party might have believed to be confidential. Much depends on how the mediator
interprets the Act.
VI . SO M E F U R T H E R I S SU ES A R IS I NG OU T O F F D R
The legislation described in the previous section is somewhat opaque in places. This
becomes even more apparent as we ask some more questions about the scheme.
1. Quality Controls
FDR providers are ‘new quasi judicial gatekeepers’, to adapt the language of Doughty
and Murch.30 As already seen, they have critical decisions to make in addition to
facilitating the mediation process itself. How they make these decisions can have a
significant impact on whether someone can access the judicial system. Mediation is
not without its critics. Much may depend on power imbalances, the ability to be
articulate, prior knowledge including legal advice, the emotional state of the parties,
and so forth. Much will turn on the mediators and yet leading researchers, Maclean
and Eekelaar, raise questions about how neutral mediation is.31 How unbiased are
mediators in reality?
These questions are relevant to other means of dispute resolution and can, for
instance, be asked of traditional adjudication. They are cautionary and are in part
addressed by the quality controls that are put in place. In New Zealand, the courts
no longer have any role in the appointment of mediators. FDR operates independ-
ently of the courts: the integrated approach has gone in favour of a semi-privatized

one. FDR providers are appointed either by the Secretary for Justice (the head of the
Ministry of Justice) or by an ‘approved dispute resolution organisation’, an
‘ADRO’.32 The latter are also approved by the Secretary for Justice but then are
trusted to make acceptable appointments of mediators. The ground rules for
appointments and, also for suspensions and cancellations, are found in regulations.33
For organizations, these include having a code of conduct, a complaints and discip-
linary mechanism, and ‘a proven track record in assessing people’s competence in
mediation’. For individual providers, they must belong to an approved organization,
and must have the appropriate experience and skills, including being ‘culturally
aware, in particular of Māori values and concepts’, to be a mediator.34 In addition
but sitting outside the legislation are FDR ‘suppliers’. These are agencies with at least
five providers on their books and may in some instances be state funded. The explicit
law on suppliers is curiously missing and hardly adequate.
Three organizations have been approved: the New Zealand Law Society, which
approves lawyers who are also mediators, LEADR, an Association of Dispute
Resolvers, and AMINZ, the Arbitrators and Mediators Institute of New Zealand
Incorporated.35 So, while the system may be called a privatized one, the leading
players are three professional bodies. Suppliers are FairWay, which is govern-
ment-owned, and Presbyterian Support (called Family Works). Fly-by-night
operators are highly unlikely to be approved, thus hopefully avoiding a drop in
standards.
2. Cost and other Ground Rules – Secret Justice

In the past, officially ordained non-adjudicative procedures were free. This is still
true of counselling (with its much reduced role) and PIPs but not of FDR. The cost
rests largely with the parties but the state will pay if a person meets the tight legal aid
conditions. It has been suggested that the latter will apply to 60 per cent of medi-
ations but this appears ambitious and only time will tell how true it is.36
In very many instances the parties will have to pay for FDR themselves. This
represents a further barrier to reaching the courts. Neither the legislation nor any
regulation lays down how much the fee should be. The conventional amount is
NZ$897, approximately US$780, to be paid upfront. However, unless it is a state-
funded mediation covered by a contract between the state and the provider, nothing
stops a provider from charging more, especially if some ‘frills’ are added. In the end,
192 Bill Atkin
the cost is a matter of contract and what the market can bear. Charges may well vary
in the future and what people actually pay may depend on the availability of medi-
ators, timing, venue, and so forth.
The number of sessions that people get for their money is also unregulated and
depends on the contract. Suggestions that this should be in the legislation were
rejected.37 The lack of transparency on this, and other issues, is bemusing. Some
parties may reach agreement very quickly; others only after a very long time. In
some cases the mediator may immediately realize that FDR is a waste of time while
in others this may emerge only after several sessions. Is there not the risk of unfair-
ness, which could have been avoided by appropriate official regulation?
3. Attendance

Who can attend FDR apart from the parties? Can someone have a support person?38
Can family members attend? In Māori culture, a communal approach rather than an
individualistic one prevails but no provision exists for what is in effect a family group
conference.39 The FDR contract may allow for it but nothing mandates consider-
ation of a culturally appropriate mechanism.
Can lawyers attend? Under the 2008 reforms, the parties’ lawyers could attend
unless the mediator decided otherwise. A lawyer appointed to represent the child
had a right to attend. The 2014 model is silent on the place of lawyers and again it is
matter of secret contract. Parenting issues are often ones where the parties have to
talk through options for their own particular situation. Nevertheless, this is in the
shadow of the law, to use Mnookin’s memorable expression.40 Lawyers may play a
vital role in helping their clients to see the implications of various proposals and may
well be able to nudge them towards an acceptable position. It should be remembered
that mediation is a formal procedure, far more so than counselling where legal repre-
sentatives do not usually have a place.
However, the question of the place of lawyers needs a little more exploration.
The New Zealand system does not prevent a person seeking advice from a lawyer
and paying privately in the usual way. This adds to the parties’ financial burden and
raises the possibility that one of the parties may be able to afford legal advice while
the other cannot. Partly because of this, the government instituted a scheme of four
hours legal advice for those who meet the strict criteria of legal aid, which could
cover advice during and after mediation, or even the identification of a right to
proceed to court without mediation, as in cases of domestic violence.41 This is an-
other policy that is not expressly legislated for and can presumably be reversed at
any point without parliamentary scrutiny. Its existence is therefore flimsy. Many law-
yers consider the financial return for this kind of work is too low or non-existent and
have opted out of doing it. The policy may in time collapse because of its weak
foundations. That aside, some parties in a very low financial position may obtain a
modest amount of legal advice. That leaves a number of others who will choose not
to go to a lawyer because of the cost. They could be at a considerable disadvantage
at a mediation if the other party has a lawyer present or has separately received legal
advice.
The attendance of children is discussed in Section VII.
4. Outcomes
What can mediation achieve legally? Can the outcomes be challenged?
A successful mediation will manage to achieve agreement on all matters in dis-
pute. Although FDR has been created as an attempt to reduce the number of parent-
ing cases that go to court, issues apart from parenting may arise, including property,
accommodation, maintenance, and child support. It is generally accepted that FDR is
not confined to parenting and can consider other topics. The resolution of some of
these may depend on other legislation. For example, an agreement relating to rela-
tionship property must satisfy various formalities, including independent legal advice
for both parties.42
Leaving those other items to one side, what happens if the parenting dispute is
resolved? The FDR form, as already mentioned, must identify the matters that have

been resolved and incorporate them into an agreement.43 The parties could decide to
take no further action but should be made aware that the agreement as such is
unenforceable. The better course is to have the agreement embodied in a court order.
Before applying to the court, the parties should check the agreement out with their
lawyers, if they have them and can afford the cost. If a lawyer raises questions about
the agreement, the FDR form could be used to gain access to the court, with submis-
sions that the agreement should be amended. If the agreement is not questioned, then
the parties can seek a consent order. In most instances such an order is likely to be
granted, but the judge’s role is far from being a rubber-stamping one. The judge may
raise doubts about the fairness of the agreement, especially from the child’s point of
view, and send the parties back to FDR or to counselling. In so doing, the judge may
seek submissions from the parties and may decide to appoint a lawyer for the child. In
the end, the judge must be sure that any agreement is in the welfare and best interests
of the child and cannot simply rely on the FDR process for this.
A consent order can be appealed or a variation sought. However, a new rule
makes it much harder to apply for a variation.44 If it is essentially the same (‘substan-
tially similar to’) as the consent order proceeding, then a variation cannot be sought
within 2 years of the previous order. It would be different if a change of circum-
stances had occurred, for example relocation to another country.
V I I. I S T HE RE A N Y PL ACE F O R CH IL DR EN ?
1. General Principles
Much of the discussion so far has been adult-focused. Why has it not been
primarily child-focused? As will become evident, the New Zealand law has taken
backward steps as far as children are concerned. To what extent can and should
non-adjudicative methods of resolution accommodate children? Children are surely
supposed to be the centre of parenting disputes.
As is well known, Article 3 of the United Nations Convention on the Rights of
the Child makes the best interests of the child a primary consideration. Article
12 requires countries to give children the right to express their views and in particu-
lar they must be given the opportunity to be heard in ‘judicial and administrative pro-
ceedings’. Like most jurisdictions, New Zealand stands tall on these points as far as
194 Bill Atkin
judicial proceedings are concerned but the position in the context of FDR is
obscure. FDR is not a judicial proceeding and whether it is an ‘administrative’ one
is doubtful. As a matter of principle however, the Convention ought to apply to
FDR.
Under section 4 of the Care of Children Act, the welfare and best interests of the
child are the paramount consideration in proceedings involving parenting.45 Section
5 elaborates on the principles that must be taken into account when determining
welfare and best interests. Section 6 has a strong rule about the views of the child.
A child, irrespective of age and maturity, must be given a reasonable opportunity to
express views on the dispute and these views must be taken into account. Such views
do not bind a court but they are influential. Over many years, the courts have built
up much experience and skill in assessing both welfare and best interests and the

views of the child, and this is accompanied by a sizeable literature.46 There is no
need to explore this further for present purposes.
2. Children and Mediation

The real question is how children are involved in a mediation process. Some
disturbing comments have come out of England. Barton and Pugsley, both involved
in mediation, stated that ‘research consistently shows multiple benefits for both
children and parents – and yet the voice of the child is too often inadequately
heard in family proceedings and often barely heard at all in mediation’.47 Professor
Barlow concluded an article setting out some preliminary research findings as
follows:48
Perhaps most striking, is that children’s voices are largely absent from these
[out-of-court] processes other than through adult perceptions of what is ‘just’
from their perspective. We found little child-inclusive mediation being prac-
tised despite practitioners having been trained.
These statements suggest that mediation runs the risk of largely ignoring the
child’s perspective. Should then the child have full rights of participation? The
answer to this is inevitably muffled and controversial.49 The child does not have such
rights when separated parents negotiate by themselves and determine how the child
will be cared for. Wise parents will take the child into their confidence but the law
does not mandate this. So, if mediation as legislated for in New Zealand, Australia,
and England and Wales is essentially founded upon private contracts, why should
the law lay down rules that it does not impose on ordinary negotiation? On the other
hand, if non-adjudicative mechanisms are instead seen as a legitimate part of society’s
social policy response to family breakdown, then the precepts of the United Nations
Convention should be integral to the legislative scheme.
If we accept the latter view, which this author does, the question still remains as
to how children should be involved.50 The answer may need to be a nuanced one.
Several options emerge:
1. A right to attend mediation, depending upon age and maturity;

2. A right to attend part of a mediation in order to be heard and questioned;
3. A right to have views presented, either by a legal or other representative,

through discussion with the mediator, through a child-version of an affida-
vit, or by other means;
4. A right to be consulted after the conclusion of the mediation sessions but
before an agreement is signed off;
5. A right to have the child’s best interests independently presented to those
at the mediation; or
6. A right to have the parties reminded of the need to keep the child’s best
interests paramount.
The weakest of these options is the last one and this is what New Zealand
recently opted for. In 2008, the New Zealand Parliament chose the first option, sub-

ject to the child’s attendance being agreeable to the mediator.51 The contrast
between the ill-fated 2008 law and 2013 could hardly be starker.
This is not to say that children should have an automatic right to attend mediation
sessions. They face real risks in being exposed to harmful arguments between their par-
ents, not fully appreciating what is being said and what emotions their parents are
going through. Possible delays and manipulation by unscrupulous parents are also
risks.52 Nevertheless, some active role for children warrants careful exploration. This
ought to be Parliament’s responsibility, not left as a matter for speculation.
3. Welfare and Best Interests

In section 4 of the Family Dispute Resolution Act 2013, one of the two purposes of
FDR is ‘ensuring that the parties’ first and paramount consideration in reaching a
resolution is the welfare and best interests of the children’ and in section 11 an FDR
provider ‘must make every endeavour to . . . assist the parties to reach an agreement
on the resolution of those matters that best serves the welfare and best interests of
all children involved in the dispute’. The subtle differences between these two provi-
sions are bemusing. For example, ‘ensuring’ is prima facie a stronger word than the
phrase ‘endeavour to assist’. Which in law is the real duty of the mediator? Having
tried hard to get the parties to focus on the children’s interests, must the mediator
do more to ‘ensure’ that they do so if the appearances are that they are pursuing their
own interests?
In this regard, the New Zealand Law Society’s submissions to the parliamentary
select committee that considered the Bill are interesting. The Society recommended
that the mediator have power to decline to endorse an agreement that clashed with
the children’s welfare and best interests,53 but this suggestion was not taken up.
Other submitters to the committee surmized that the mediator would have to
become an advocate for the child in order to carry out the statutory duties, which
would clash with the convention that mediators are to be neutral and independent.
Government officials recommended that ‘ensuring’ be altered to ‘focusing partici-
pants on . . . ’54 but the select committee rejected this.
We are therefore left with uncertainty about what a mediator’s legal duty is. This
uncertainty is compounded by the lack of any mechanism for identifying what the
children’s welfare and best interests are.55 A court by contrast will have a raft of evi-
dence, often including submissions from the lawyer for the child, a social worker’s
196 Bill Atkin
report and an expert report from a child psychologist or psychiatrist (though the lat-
est changes cut back on these things56). FDR can sometimes proceed, it seems, with
only the parties present and their perceptions of the welfare and best interests of the
child. One hopes that they do this in good faith. A good test of this may be if they
reach an amicable agreement but how can a mediator be sure?
4. Child’s Views
The rules in the Care of Children Act 2004 about the importance of the child’s views
arguably do not bind FDR. Unlike the special provisions in the Family Dispute
Resolution Act 2013 on best interests, no similar rules were enacted for FDR pur-
poses. Ostensibly, FDR can proceed with no account to being taken of the child’s
views. This however would be contrary to international obligations and to good

practice.
The child has no right of attendance, no right to be represented by a lawyer, and
no right to be heard in any form at all. The mediator has no duty to find out the
child’s views nor to urge the parties to do so. All such issues are a matter for the con-
tract between the parents and the mediator, to which of course the child is not a
party and has no right of input.57 This again is an exercise in secret justice, and is
surely objectionable. While the views of the child may not accord with the child’s
best interests, they may nevertheless affect the best interests. An agreement to which
the child, especially an older child, objects is highly unlikely to be in the child’s best
interests, but, except if the private contract allows for it, no examination of this
occurs in FDR.
By way of comparison, neither the Australian law on FDR nor the English and
Welsh law on MIAMS addresses the points just discussed.
5. Summary
The New Zealand FDR system is underpinned by references to the child’s welfare
and best interests. However, this in turn raises significant questions about how
welfare and best interests can be assured, especially given the inherent roles of the
parties and the mediator. Beyond this, the most noticeable feature of FDR is the
invisibility of children. Their rights and their views barely surface, with so much
reliance placed on secret justice.
V II I . W H ER E D O L A WY ER S F IT IN ?
1. Attitudes towards Lawyers and Outcomes
One of the most problematic features of the New Zealand scheme is the equivocal
role of lawyers. Behind the changes lurked a suspicion of lawyers that was largely
unfounded. For instance, the discussion paper that the Ministry of Justice released in
the lead-up to the new legislation had two tendentious subheadings: ‘ . . . some law-
yers’ behaviour may exacerbate conflict and encourage litigation’ and ‘There can be a
tension between the ethical obligations of lawyers to their clients and the best inter-
ests and welfare of children’.58
The basis for hostility towards lawyers is dubious. The New Zealand Pryor
research, discussed above, raises more questions about mediation than the role of
lawyers.59 Lawyers for children in particular received a generally good press. Results
from England similarly paint a much better picture of lawyers than the New Zealand
government allowed. Barlow for example reports that ‘satisfaction rates for both pro-
cess and outcomes are far higher for lawyer-led negotiation than for mediation’.60
Maclean and Eekelaar likewise emphasize the success that is evidenced by settlements
achieved with legal assistance, sometimes combined with mediation.61 Lawyers can
also be important conduits for other non-adjudicative methods of resolution. The
most compelling evidence of this comes from England where the withdrawal of legal
aid from family cases meant lawyers were not in a position to refer parties to medi-
ation. As a result mediation largely ceased: as one commentator stated ‘[t]he public
has trust in the court process and the judiciary and the outcomes they produce. This is
a huge problem for mediation at a point when the industry is on its knees’.62

One consequence of placing barriers in the way of legal representation is a growth
in ‘self-litigants’ or ‘litigants in person’.63 This is a problem in all courts, often causing
delays, confusion and extra time, but it is especially acute in family cases. This has con-
sequences for judges, court staff, the parties themselves and the children. In the end, it
adds to the costs of the community, not only the civil justice system. As we see (below
sub-Section VIII.3), the new system in New Zealand institutionalizes self-litigation.
2. Lawyer for the Child

New Zealand used to pride itself on providing for mandatory legal presentation for
children. Appointments were usually automatic once a case was heading to a hearing,
and only experienced lawyers on the lawyer for child list were appointed. The sub-
missions of these lawyers were often highly influential in the determination of
disputes. Now, a lawyer for the child can be appointed under the Care of Children
Act 2004 only if two hurdles are both jumped:64
a. If the court ‘has concerns for the safety or well-being of the child’; and
b. If the court ‘considers an appointment necessary’.
In introducing the original Bill to Parliament, the acting Minister of Justice stated
that he expected a lawyer still to be appointed ‘in the majority of cases’.65 This of
course invites the comment as to why restrictions were enacted when little change in
practice appears to have been expected. How is the new test to be understood?
‘Concerns for the safety’ of a child is presumably quite narrow in focus. It could
be because of allegations of abuse or something else that raises a risk of harm, includ-
ing psychological harm. On the other hand, ‘well-being’ has a much broader ring to
it. From one point of view, any case that reaches the point of a court hearing or even
preliminary procedures such as a judicial settlement conference raises concerns about
the welfare and best interests of the child. While ‘well-being’ is a different word from
‘welfare’, it is similar in general sense to ‘welfare’, and as the inquiry into welfare and
best interests is central to any case, arguably ‘concerns’ about well-being will be
raised very easily. However, from another point of view, Parliament, because of cost,
deliberately chose a different word as part of a policy to restrict appointments of law-
yer for the child. It could be argued that ‘well-being’ should be interpreted eiusdem
198 Bill Atkin
generis with ‘safety’ and thus refer only to situations where evidence is produced that
the particular child is at some form of special risk not present for most children.
The second hurdle is that the appointment must be ‘necessary’. This does not say
what it must be necessary for. Is it to safeguard the child’s safety or well-being? Is it
to assist the procedures and smooth running of the court? Is it necessary where one
or both of the parties are litigants in person? ‘Necessary’ is also to be distinguished
from words like ‘useful’ or ‘desirable’. In the context of expert assessments of a child,
the Court of Appeal in England and Wales put it this way:66
. . . it ‘has a meaning lying somewhere between “indispensable” on the one

hand and “useful”, “reasonable” or “desirable” on the other hand’, having ‘the
connotation of the imperative, what is demanded rather than what is merely

optional or reasonable or desirable’.
It may not be easy getting an authoritative ruling on the meanings of the above
phrases because no appeal can be taken on the appointment of lawyer for the child.
Judicial review might in theory be possible but it has to be a determined litigant who
takes such action in the High Court. A party may nevertheless object to the appoint-
ment, and one new reason for doing so is that the cost of lawyer for the child is now
usually to be shared one third each by the two parties and one third by the state
(whereas in the past the cost was in general the state’s responsibility).67 A person
who has already paid for FDR and a personal lawyer may not have much money left
to pay for these extra costs.
3. Lawyers for the Parties
A party may instruct a lawyer and pay accordingly. As noted above, in some increas-
ingly rare instances legal aid may assist. Whether a lawyer can attend FDR is unclear,
also as discussed above. It will turn on the details of the mediation contract. Whether
the lawyer can appear in court would, one would think, be less uncertain. However,
the import of section 7A of the Care of Children Act is to keep lawyers out of court
until a full hearing takes place. Parties will thus be litigants in person, by law, on
many preliminary matters. This is irrespective of whether they can speak English
properly, whether they are in a reasonable emotional state, etc. As in much of the
new regime, it is ‘do-it-yourself’ justice.
Lawyers are also prevented from signing and filing documents for their clients in
many instances and from accepting service. Lawyers can still give legal advice, prepare
documents, and negotiate on behalf of clients. The party who can afford this kind of
legal help will be at a considerable advantage over the party who cannot. Concerns
about inequality, access to justice, and fairness speak for themselves. The philosophical
justifications for excluding lawyers from court are hard to find. Even accepting a private
and market model of family justice, the right to be represented in court appears on the
face of it to be entirely consistent with that approach, even demanded by it.
I X . P R I VA T E L A W OR A SO CI E T A L CO NC E R N ?
As flagged at the start of this article, the basis for much of the reforms in New
Zealand, England and Wales, and Australia is that the resolution of disputes arising
from family breakdown is a private matter similar to a commercial dispute. The main
role of the state is to provide a structure to enable disputing parties to determine a
resolution themselves or to have a judicial system that the parties largely pay for.
By contrast, the state’s role changes when the issues are regarded as having a public
character. This occurs typically where someone is ‘vulnerable’, for instance when
violence has occurred, or where a person has impaired capacity. Thus, developments
in the various countries do not impact on child protection functions or on the laws
on mental health and mental capacity.
The public/private divide has been the subject of considerable debate especially
in legal feminist literature. This is not the place to rehearse that particular debate,
although it is an important part of the backdrop. The question is whether the divide
is appropriate in the context of ordinary family breakdown and whether it should

drive policy-making in the way it has done.
Professor Lacey criticized the appeal to ‘private law’ as follows:68
While there might appear a distinction between criminal law and public family
law on the one hand and private family law on the other, the fact that private
family disputes so often have knock on effects on litigants’ welfare needs and
entitlements means that this distinction is quite superficial.
In similar vein, Professor Diduck considered the new approach in England and
Wales as a movement that had less to do with legal principles of justice and more to
do with ‘therapy and techniques of problem solving’:69
This autonomy, or virtual de-legalisation of family disputes by directing law’s

non-intervention in them, reinforces what many feel is a discredited boundary
between public and private that has serious consequences for justice in family
living.
She continued:70
So, while family privacy is important, as is our freedom to choose how to live
in our families of choice, these manifestations of autonomy cannot be detached
from the public, social context in which they are made and experienced and
the public, social consequences they engender. That is precisely why decisions
about the consequences of family disputes should be scrutinized according to
rules regarding the justice of process, legal entitlement, social values and rights,
and not left to be privately determined by individuals in the name of protecting
their autonomy.
These statements raise fundamental questions about the private/public divide.

While self-determination has a proper place, over-emphasis on it can be at the
expense of the rule of law, access to justice, due process and legal rights. It can also
lead to a misunderstanding of the proper place of a family court in our modern com-
munities. A good family court system benefits not only the parties but also children
and other family members, as well as others such as employers who may get caught
200 Bill Atkin
up, perhaps unwittingly, in events. The point is that family courts exist not simply to
resolve private disputes but for the wider common good. The murky distinction
between private and public law distracts rather than enlightens.
In a more specific way, the distinction belies the reality of the cases that reach the
court. The Ministry of Justice’s own discussion paper that preceded the New Zealand
reforms made the point tellingly enough. A survey that it did revealed that most cases
had factors at work other than the relationship breakdown itself: mental health, alco-
hol, abuse and other matters of considerable public concern.71 In other words, the
cases that family justice procedures are primarily designed for are often ones involving
an element of vulnerability72 or some other matter that engages the state’s protective
functions. To treat them as essentially private is to miss the point. Furthermore, the
situations are ones that inevitably affect children. Whatever system is put in place

should ensure proper outcomes for children, and reflect the public interest in the wel-
fare of children. This does not mean that parents cannot freely negotiate an amicable
settlement. However, where this does not happen, the state has certain non-delegable
responsibilities to ensure the safety and welfare of children.
What flows from these points are serious questions about the recent direction
of family law. While mediation arguably should be an option for parties to choose,
should it be mandatory before someone is allowed to go to court? Should it sit
apart from the court, symbolizing it as a competing private approach, rather than being
part of an integrated structure? Should its governing rules be the subject of secret
justice or should such things be open and transparent? Should the system be largely
‘user-pays’ when the public interest is at stake? Should barriers be placed on legal rep-
resentation both for the parties and for the child? Fundamentally, the resort to the
discourse of ‘private law’ is misleading and should be discarded.
X. CONCLUSION
New Zealand has just introduced a compulsory mediation step before parties in
dispute over their children can reach the Family Court. This in itself may not sound
radical. Indeed, mediation is a familiar tool to assist in the resolution of disputes. Yet,
the new model has features that raise more fundamental questions. Should the legis-
lature not lay down the basic policy on questions such as who may attend mediation,
what legal representation is appropriate, and what part the children should play, in
particular the ascertaining of their views? In New Zealand, important matters such as
these have been left to the contract between mediators and the parties. This is a
form of ‘privatization’ and ‘secret justice’. It is based on a dubious distinction
between private law and public law. Family policy should surely be better conceived
than this.
Questions of access to the courts are also raised. In New Zealand, these questions
are compounded by counter-intuitive rules restricting the part lawyers can play repre-
senting the parties in court and a movement away from mandatory legal representa-
tion for children. Further, the users of the system now have to bear a much greater
burden of the cost, in particular at the mediation stage and in relation to the cost of
a lawyer for the child, if one is appointed.
The underlying tension is between the proper role of the state and the responsi-
bilities of disputing parents. Arguably, the right balance remains elusive.
N O T ES
1 See, for example, Eekelaar and Maclean (2013).
2 Report of the Royal Commission on the Courts (Government Printer, Wellington, 1978) at paras
[463]–[602].
3 Guardianship Act 1968, s 30, replicated in s 7 of the Care of Children Act 2004. See discussion of the new
rules in sub-Section VIII. 2 below.
4 ‘Inherent jurisdiction’ refers to the powers that the courts have independently of those laid out in legisla-
tion. They enable courts to make orders for the protection of children and vulnerable adults but only in a
residual way. See the New Zealand High Court decision in Carrington v. Carrington [2014] NZFLR 571
where Katz J held that she did not have such jurisdiction in a case involving an elderly man’s testamentary
capacity and capacity to grant an enduring power because the Family Court had statutory jurisdiction. In
essence, the inherent powers are to be used where there is otherwise a gap in the law.
5 See Family Courts Act 1980, as amended in 2008, ss 11A–11D. Media representatives can attend cases,
but rarely do so. Proceedings can be reported in the media but, if children or ‘vulnerable persons’ are
involved, names cannot be used. Anonymized news stories do appear.

6 Crime and Courts Act 2013, s 17.
7 See Family Law Act 1975, Part IV, ‘The Family Court of Australia’.
8 See for example Blacklaws (2014).
9 P Boshier (chair) A Review of the Family Court: a report for the Principal Family Court Judge, Auckland,
1993.
10 Dispute Resolution in the Family Court (Report 82, NZ Law Commission, Wellington, 2003).
11 In fact, New Zealand ultimately weathered the global financial crisis much better than many countries.
12 Ministry of Justice Reviewing the Family Court A public consultation paper (Wellington, 2011) at para [21].
13 See especially rules 416P–416V. These rules provide for a ‘standard track’, ‘a complex case on standard
track’, ‘without notice track’, and ‘simple track’.
14 Care of Children Act 2004, ss 46P and 46Q. Section 46P states that the purpose of a settlement confer-
ence is to ascertain whether any issues can be settled and then to settle them. Only one settlement con-
ference may be held but it may be adjourned and reconvened.
15 Family Proceedings Act 1980, s 9 (section now repealed).
16 Family Courts (Counselling Sessions) Regulations 2012 (2012/307).
17 Family Court Proceedings Reform Bill Departmental Report (Ministry of Justice, Wellington, 2013) at para
160.
18 Care of Children Act 2004, ss 46G–46N.
19 Care of Children Act 2004, s 8 and the Care of Children (Parenting Information Programme)
Regulations 2014, regulation 3.
20 Care of Children Act 2004, s 46O.
21 See also the Family Procedure Rules 2014 Part 3, and Practice Direction 3A.
22 There is however another system more similar to PIPs, which is voluntary but which the courts can direct
people to: <https://www.cafcass.gov.uk/about-cafcass/commissioned-services-and-contact-activities/
spip.aspx> (accessed 6 May 2015).
23 The term is also used in England: for example, see Eekelaar and Maclean (2013: 37) .
24 Barwick and Gray (2007).
25 Pryor (2012). <http://www.lawfoundation.org.nz/wp-content/uploads/2013/11/Part-1-Parenting-
Orders-in-the-Family-Court-2012.pdf> (accessed 6 May 2015).
Pryor wrote earlier of mediation: Seymour and Pryor (1998) especially at 42–43.
26 See further Eekelaar and Maclean (2013) especially ch 3, 38–41 ‘Criticisms of Mediation’.
27 See O’Dwyer and Doyle (2013).
28 Family Dispute Resolution Act 2013, s 12.
29 Section 14.
30 Doughty and Murch (2012: 354), quoted by Parkinson (2013: 205).
31 Eekelaar and Maclean (2013) especially ch 3, at 39–40.
32 Family Dispute Resolution Act 2013, s 9.
33 Family Dispute Resolution Regulations 2013.
34 Regulations 4 and 7.
35 <https://www.gazette.govt.nz/notice/id/2013-go7312> (accessed 6 May 2015).
36 Family Court Proceedings Reform Bill Departmental Report (Ministry of Justice, Wellington, 2013) at
para 155.
202 Bill Atkin
37 Ibid., at para 4.7.1, rejecting the recommendation of the Regulations Review Committee.
38 The FairWay standard ‘agreement to mediate’, kindly forwarded to the author, allows for ‘one or more
other persons, to support, them, subject to the agreement of the other party’ [commas in original].
39 Such conferences occur in the context of child abuse and youth offending: see the Children, Young
Persons, and Their Families Act 1989. See also Seymour and Pryor (1998) especially at 44–45.
40 Mnookin and Kornhauser (1979).
41 The ‘Family Legal Advice Service’ (FLAS) is a ‘specified legal service’ under s 68(2)(b) of the Legal
Services Act 2011, under which the Secretary for Justice has wide powers in relation to legal aid. The
‘Operational Policy’ is found at <http://www.justice.govt.nz/services/service-providers/information-for-
legal-professionals/information-for-legal-aid-providers/documents/manuals-and-policies/family-legal-
advice-service-operational-policy-october-2014/view> (accessed 6 May 2015). See more generally
O’Dwyer and Doyle (2013: 16–17).
42 Property (Relationships) Act 1976, s 21F.
43 Family Dispute Resolution Act 2013, s 12. See Section V.2 above.
44 Care of Children Act 2004, s 139A.

45 A similar provision is found in s 6 of the Children, Young Persons, and Their Families Act 1989
(child abuse) but not in the Child Support Act 1991 or the Adoption Act 1955 (but under s 11 the court
must be satisfied that an adoption will promote the interests of the child).
46 A sample of Australian and New Zealand publications on the involvement of children includes Caldwell
(2007); Tapp (2006); Fernando (2011); Caldwell (2011); Parkinson and Cashmore (2008) and
Robinson and Henaghan (2011).
47 Barton and Pugsley (2014).
48 Barlow (2014: 623). See also Ewing (2014); this paper is based on a project with Barlow, discussed in
‘Mapping Paths to Family Justice’ [2014] Family Law 1194), Walker (2013) and Stevenson (2013).
49 Seymour and Pryor (1998) refer to ‘considerable debate as to whether, and how, children should be
involved’: at 44.
50 For a study of child-inclusive mediation, see Bell et al (2013).
51 Care of Children Act 2004, as amended in 2008, s 46Z(d) (now repealed).
52 See the succinct summary of such points in a note on a child abduction case: Gilmore and Herring
(2014: 533).
53 New Zealand Law Society Family Court Proceedings Reform Bill [submissions to the select committee] at
para 272(b).
54 Family Court Proceedings Reform Bill Departmental Report (Ministry of Justice, Wellington, 2013) at end
of Part 3.6.
55 The Law Society’s submissions (above) made similar points.
56 Care of Children Act 2004, s 133. This subject is not analysed in this article.
57 The Fairway standard ‘agreement to mediate’, kindly forwarded to the author, does not mention the
views of the child or any involvement of the child in the process.
58 Ministry of Justice Reviewing the Family Court A public consultation paper (Wellington, 2011) at para 5.3.
59 Pryor (2012). See above Section V.
60 Barlow (2014: 620).
61 Eekelaar and Maclean (2013: 7 and 25–26).
62 Blacklaws (2014: 628).
63 See discussion of this, for example, in Maclean and Eekelaar (2012) and Trinder (2014).
64 Care of Children Act 2004, s 7.
65 Hon C. Borrows, First Reading of the Family Court Proceedings Reform Bill (2012) 686 NZ
Parliamentary Debates 7029.
66 Re H-L (A Child) [2013] EWCA Civ 655 at para [3] per Munby P, referring to Re P (Placement Orders.
Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras [120] and [125].
67 Care of Children Act 2004, ss 131(4) and 135A: the court must make a cost contribution order unless it
would cause serious hardship.
68 Lacey (2014: 594).
69 Diduck (2014: 617).
70 At 618.
71 Ministry of Justice Reviewing the Family Court A public consultation paper (Wellington, 2011) at paras
[69]–[70].
72 A good argument is that those involved in family disputes are ipso facto vulnerable (eg see Maclean, M.
et al (2011) ‘Family law in hard times: can we learn from other jurisdictions?’, JSWFL 33, 319 at
331–332) but the approach of the New Zealand and other governments is to distinguish some parties as
‘vulnerable’ such as abuse victims.
ACKNOWLEDGEMENTS
This article was originally prepared for International Society of Family Law World
Conference, Recife, Brazil, entitled Universalities and Singularities August 2014. A
different and shorter version appears on the conference website. Special thanks to
my fine research assistant, Sean Brennan, John Eekelaar, Dr Marg Gilling, Zoë
Lawton, and Sir Geoffrey Palmer for valuable comments that greatly assisted the revi-
sion of the article.

R EF E RE NC E S
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Barton, C. and Pugsley, J. (2014) ‘The voice of the child: are mediators listening?’ Family Law 44,
357.
Barwick, H. and Gray, A. (2007) Family Mediation – Evaluation of the Pilot, Wellington: Ministry of
Justice.
Bell, F., Cashmore, J., Parkinson P., and Single, J. (2013) ‘Outcomes of child-inclusive mediation’,
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Caldwell, J. (2007) ‘Judicial interviews of children: some legal background’, New Zealand Family
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Caldwell, J. (2011) ‘Common law judges and judicial interviewing’, Child and Family Law Quarterly
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Diduck, A. (2014) ‘Justice by ADR in private family matters: is it fair and is it possible?’, Family Law
44, 616.
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Oxford: Hart Publishing.
Ewing, J. (2014) Children’s voices: Centre-stage or Side-lined in Out-of-court Dispute Resolution in
England and Wales? (paper presented at the International Society of Family Law World
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International Journal of Law, Policy and The Family, 2015, 29, 183–204

Controversial Changes to the Family Justice

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• An integrated approach whereby counselling and other services were seen as

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• The centrality of mediation;

Some of these will be examined in the following sections.

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• The role of mediation needs to be examined further. Court professionals expressed

While this is hardly a vote of confidence in mediation, it is not a condemnation. It

1. Mediation before Getting to Court

parenting order or go to court over a guardianship dispute unless ‘a family dispute

• Where the other party has already applied for an order;

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The last two exceptions must be accompanied by evidence in an affidavit, suffi-

The other three situations where a form can be obtained are:

• Where a party ‘is unable to participate effectively in family dispute resolution’

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2. Cost and other Ground Rules – Secret Justice

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2. Children and Mediation

1. A right to attend mediation, depending upon age and maturity;

3. A right to have views presented, either by a legal or other representative,

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3. Welfare and Best Interests

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2. Lawyer for the Child

. . . it ‘has a meaning lying somewhere between “indispensable” on the one

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This autonomy, or virtual de-legalisation of family disputes by directing law’s

These statements raise fundamental questions about the private/public divide.

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