When they separated, Tane and Imelda could agree on two
things – they did not want to end up in Family Court and they did not want
their separation to become a battle ground that their children had to survive.
They didn’t want their children to look back on this time as one full of
endless arguments. They had seen friends and family members who, while not
ending up in Court, still battled out their own separations armed with lawyers
sending letters back and forth. This appeared to cost a lot, financially and
Tane and Imelda wanted a cost effective process that left
them with the ability to share their children’s birthdays without stress. In
effect, they wanted the “Chris Martin and Gwyneth Paltrow divorce” – one
characterised by dignity and goodwill rather than inflamed animosity.
Like Tane and Imelda, many New Zealand couples facing
separation may not realise that a resolution process exists that aims to keep
them away from the usual horror stories associated with divorce. Using
Collaborative Practice, specially trained lawyers and other professionals
provide partners with a safe and dignified environment that is geared towards
reducing conflict, focussing on children’s welfare and ensuring sound decisions
and solutions are found.
During the process there are no lawyers’ letters. Rather,
everyone sits down and works together to find solutions that reflect what is
important to each party. Agreements reached are legally enforceable but are
often more creative and customised to the family’s needs than court orders or
agreements reached through more traditional methods of negotiating between a
couple’s lawyers. Many clients, on hearing about the process, describe it as
simply “common sense”.
On Monday, the final report of the Independent Panel
reviewing the 2014 Family Justice System changes was released. When the 2014
Family Justice System changes were made, Collaborative lawyers were concerned
at the narrow emphasis placed on mediation. The Panel has highlighted that this
narrow focus on mediation is inconsistent with the original policy intent that
family dispute resolution be a flexible concept that draws on a range of
dispute resolution models to help families reach agreement. My view is that FDR
must include a range of more flexible processes than mediation alone.
Access to justice should mean each whanau has access to the
appropriate dispute resolution process that best suits that whanau’s needs. For
many, this will be Collaborative Practice which enables families to access
legal advice and any necessary wrap around professional services in one
complete, cohesive process.
Unfortunately, access to Collaborative Practice is not
provided for within the current Family Legal Advice Service or Legal Aid
system. Those who qualify for Legal Aid are not given the same range of
resolution options afforded to the rest of the community and they are left with
no choice but to use processes that may not be the best for them, their whanau
and their circumstances. They are denied the support and encouragement to self
determine their current and future family disputes that Collaborative Practice
The Panel’s report highlights considerable issues within the
present Family Justice System including pervasive delays, confusion and
limitations around access to legal advice, inflexible and fragmented services, and
a need for targeted counselling and culturally responsive services. In one cohesive
process, Collaborative Practice addresses these issues and provides couples
like Tane and Imelda with the opportunity to move themselves and their children
through separation without pitting them against one another. At FLR, we hope
the Government will recognise Collaborative Practice when considering changes
to the Family Justice System and include it within the menu of choices for families.
If you’d like to explore whether Collaborative Practice may be right for you and your family, feel free to contact us on (09) 282 3574 or at [email protected]. We’d love to talk with you.