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Endnotes

[1] Law Commission Family Court Dispute Resolution (NZLC PP 47, Wellington, 2002).

[2] B Babb "Where we Stand Redux: Another Look at America's Family Law Adjudicatory Systems" (2002) 35 FLQ 627.

[3] The circumstances are more restricted than in New Zealand: Re K (1994) FLC 92_461.

[4] From the Children and Family Court Advisory and Support Service (CAFCASS) set up under the Criminal Justice and Court Services Act 2000.

[5] See the flow chart Dispute Process Under the Guardianship Act 1968, appendix A.

[6] Report of the Royal Commission on the Courts (Government Printer, Wellington, 1978).

[7] Judge PF Boshier "A Review of the Family Court: A Report for the Principal Family Court Judge" (Auckland, 1993, mimeograph).

[8] Report of the Royal Commission on the Courts, above n 6.

[9] Boshier, above n 7.

[10] Sections 8_12 Family Proceedings Act 1980.

[11] Submission 97.

[12] Auckland, Hamilton, Palmerston North, Napier, Wellington, Christchurch, Dunedin.

[13] See above paras 49_51.

[14] Submission 126.

[15] See above paras 78_81.

[16] This requires amendment of the Guardianship Act 1968 in line with s 178(2), (3) and (4) Children, Young Persons, and their Families Act 1989.

[17] B Neale and C Smart Good to Talk: Conversations with Children after Divorce (Nuffield Foundation, London, 2000) 49.

[18] Submission 7.

[19] Submission 36.

[20] N Lowe and M Murch "Children's Participation in the Family Justice System _ Translating Principles into Practice" (2001) CFLQ 137.

[21] N Taylor, A Smith and P Tapp Childhood and Family Law: The Rights and Views of Children (Children's Issues Centre, Dunedin, 2001), 47.

[22] Taylor, Smith and Tapp, above n 21.

[23] Taylor, Smith and Tapp, above n 21, 50.

[24] Taylor, Smith and Tapp, above n 21, 51.

[25] Chapter 11 discusses representation of children in the Family Court system.

[26] Sections 8 and 10 Children, Young Persons, and Their Families Act 1989.

[27] See T v T [1998] 17 FRNZ 133 (FC) Boshier J; K v O (9 October 2000) Family Court Levin, FP 031/106/97 Carruthers J; W v P (10 November 2000) District Court Waitakere, FP 364_93 MacCormick J.

[28] Lord Chancellor's Department Information Meetings and Associated Provisions within the Family Law Act 1996: Summary of the Final Evaluation Report (Lord Chancellor's Department, London, 2001).

[29] See chapter 2 "Conciliation Services".

[30] Even though the Women's Refuge is not funded to provide services for clients approaching them directly, rather than through the Family Court.

[31] In the case of family law, specifically, these are the New Zealand Law Reports (NZLR); New Zealand Family Law Reports (NZFLR); and Family Reports of New Zealand (FRNZ); not to mention reports dealing with other legal areas, such as the District Court Reports (DCR); Criminal Reports of New Zealand (CRNZ); Employment Reports of New Zealand (ERNZ); and the Procedure Reports of New Zealand (PRNZ).

[32] Statistics New Zealand "Table 22 Number of Usual Residents in Household by Access to Telecommunication Systems (Total Responses) for Households in Private Occupied Dwellings, 2001" 2001 Census (Statistics New Zealand, Wellington, 2001).

33 What You Should Know About Family Law in Ontario <http://www.attorney general.jus.gov.on.ca /english/family/famlawbro.asp>. Revised March 2002.

[34] Ministry of the Attorney General A Guide to Procedures in the Ontario Court of Justice (Queen's Printer for Ontario, Toronto, revised June 2000).

[35] Where Do I Stand: A Child's Legal Guide to Separation and Divorce <http://www.attorneygeneral. jus.gov.on.ca/english/family/wheredoi.asp>.

[36] Usually, but not exclusively, related to separation, divorce, and custody and access arrangements for children.

[37] In particular, parents in a high-conflict relationship who are unable to discuss and decide matters about their children co-operatively.

[38] In a New Zealand review of more than 200 studies of the effect of family dissolution on children, its authors Jan Pryor and Bryan Rodgers state that families need information about their children and the likely effects on them of family dissolution. See J Pryor "Family dissolution: What About the Children?" (1998) 2 BFLJ 310, 312.

[39] Family Law Act 1996.

[40] The material is written in a child-friendly manner and, depending on the age and maturity of the child, may include a workbook for the child to complete with a parent or other adult, a worksheet with puzzles, a board-game, and a diary that includes comments from other children whose parents have divorced. These leaflets were reformulated during the trial; they have, in the main, been positively evaluated by parents and children. C Stark and A Rowlinson "Chapter 24 Providing Information for Children" in Lord Chancellor's Department Volume 2: Information Meetings and Associated Provisions within the Family Law Act 1996: Final Evaluation Report (Lord Chancellor's Department, London, 2001).

[41] Lord Chancellor's Department Research in Progress Information Meetings and Provisions (June 1999, <http://www.opengov.uk/lcd/research/general/srp/srpsec3.htm>).

[42] Lord Chancellor's Department Research in Progress, above n 41.

[43] Lord Chancellor's Department Research in Progress, above n 41, 25. It did not, however, result in an increased uptake in mediation services.

[44] Lord Chancellor's Department Research in Progress, above n 41.

[45] Lord Chancellor's Department Research in Progress, above n 41.

[46] Comment from the father of a child aged 16, and twins aged 19, to the Lord Chancellor's Review Team, above n 41, 49.

[47] Lord Chancellor's Department Research in Progress, above n 41, 43.

[48] Courts that deal with a wide range of matters including criminal, commercial and civil cases, as well as family matters.

[49] J Pedro-Carroll, E Nakhnikian and G Montes "Assisting Children Through Transition: Helping Parents Protect Their Children from the Toxic Effects of Ongoing Conflict in the Aftermath of Divorce" (2001) 39 Family Court Review 377, 379.

[50] Arizona, Connecticut, Delaware, Hawaii, Iowa, Vermont.

[51] G Stone, K Clark and P McKenry "Qualitative Evaluation of a Parent Education Program for Divorcing Parents" (2000) 34 Journal of Divorce and Remarriage 25.

[52] M Geasler and K Blaisure "1998 Nationwide Survey of Court-connected Divorce Education Programs" (1999) 37 Family and Conciliation Courts Review 36, 51.

[53] Geasler and Blaisure, above n 52.

[54] This programme was developed by the Children's Institute of the University of Rochester and the 7th District. See Pedro-Carroll, Nakhnikian and Montes, above n 48.

[55] Pedro-Carroll, Nakhnikian and Montes, above n 49, 383.

[56] This is where the parent with physical custody of the child has complete decision-making power, and absolutely minimal contact with, or reference to, the other parent. This is clearly not ideal, but it can reduce the potential for conflict between parents who otherwise have adequate parenting skills, but are unable to co-operate.

[57] Pedro-Carroll, Nakhnikian and Montes, above n 49, 384.

[58] Pedro-Carroll, Nakhnikian and Montes, above n 49.

[59] Pedro-Carroll, Nakhnikian and Montes, above n 49.

[60] Pedro-Carroll, Nakhnikian and Montes, above n 49.

[61] Pedro-Carroll, Nakhnikian and Montes, above n 49, 387.

[62] Pedro-Carroll, Nakhnikian and Montes, above n 49, 386.

[63] C Gray, M Verdieck, E Smith and K Freed "Making it Work: An Evaluation of Court-mandated Parenting Workshops for Divorcing Parents" (1997) 35 Family and Conciliation Courts Review 280.

[64] Gray, Verdieck, Smith and Freed, above n 63, 288.

[65] Gray, Verdieck, Smith and Freed, above n 63, 289.

[66] J Arbuthnot, K Kramer and D Gordon "Patterns of Relitigation Following Divorce Education" (1997) 35 Family and Conciliation Courts Review 269, 270.

[67] Arbuthnot, Kramer and Gordon, above n 66, 276. However, those conducting the study also said there is some evidence that the programme only works as a protective factor when parents participate at an early stage, rather than once litigation has begun.

[68] See also P Feng and M Fine "Evaluation of a Research-based Parenting Education Program for Divorcing Parents: The Focus on Kids Program" (2000) 34 Journal of Divorce and Remarriage 1, 6.

[69] Feng and Fine, above n 68, 16 and 17. However, they found the programme was less effective for people who had been married longer and had older or adult children. Similarly, it was less effective for parents who had been married more than once, who often had much more complicated relationship issues to negotiate.

[70] Parents' Education about Children's Emotions Program. See Stone, Clark and McKenry, above n 51, 30.

[71] The researchers suggest in their summary that role-playing is a key element in changing how people behave. Stone, Clark and McKenry, above n 51, 37.

[72] The negative behavioural patterns they reported formerly indulging in were "bad mouthing" the other parent in front of the child, and using the child as a messenger.

[73] Stone, Clark and McKenry, above n 51, 31.

[74] See C Ahrons The Good Divorce: Keeping Your Family Together When Your Marriage Comes Apart (Harper Collins, New York, 1994); and E Heatherington, M Bridges and G Insabella "What Matters? What Does Not? Five Perspectives on the Association Between Marital Transitions and Children's Adjustment" (1998) 53 American Psychologist 167, 184.

[75] For a discussion of educational interventions that can be helpful for children of separating parents, see R Emery, K Kitzmann and M Waldron "Psychological Interventions for Separated and Divorced Families" in E Hetherington (ed) Coping with Divorce, Single Parenting, and Remarriage: A Risk and Resiliency Perspective (Lawrence Erlbaum Associates Inc, Mahwah, NJ, 1999) 323_344.

[76] See J Pedro-Carroll and E Cowen "The Children of Divorce Intervention Project: An investigation of the efficacy of a school-based prevention program" (1985) 53 Journal Consulting and Clinical Psychology 603. See also J Pedro-Carroll and L Alpert-Gillis "Preventative Interventions for Children of Divorce: A Developmental Model for 5- and 6-year-old Children" (1997) Journal of Primary Prevention 213; and, J Pedro-Carroll, J Sutton and P Wyman "A Two-year Follow-up Evaluation of a Preventative Educational Program for Young Children of Divorce" (1999) 28 School Psychology Review 467.

[77] In total, 152 counties offer children's programmes. R Geelhoed, K Blaisure and M Geasler "Status of Court-connected Programs for Children Whose Parents Are Separating or Divorcing" (2001) 31 Fam Court Rev 393, 394.

[78] For further details about some of the programmes see: Kids Turn <www.kids turn.org>; Parents Forever: Children's Sessions <www.parenting.umn.edu>; Children in the Middle <www.divorce-education.com>; Families in Transition Program <www.aoc.state.ky.us/jefferson/fit.htm>; Rainbows <www.rainbows .org>; Rollercoasters <www.familiesfirst.org>; Sandcastles Program <www. sandcastlesprogram.com>; Children of Separation and Divorce Center, Inc <www.divorceABC.com>.

[79] S Bloch and E Crouch Therapeutic Factors in Group Psychotherapy (Oxford University Press, Oxford, 1985). See also Table 3 in Geelhoed, Blaisure and Geasler, above n 77, 397.

[80] Geelhoed, Blaisure and Geasler, above n 77, 398.

[81] Kids Turn programme evaluation <www.kidsturn.org/others/longterm.htm>.

[82] Families in Transition programme <www.louisville.edu/kent/community/fit/fiteval.html>. See also R Fischer "Children in Changing Families: Results of a Pilot Study of a Program for Children of Separation and Divorce" (1999) 37 Family and Conciliation Courts Review 240.

[83] Taylor, Smith and Tapp, above n 21, 51.

[84] N Lowe and M Murch "Children's Participation in the Family Justice System _ Translating Principles into Practice" (2001) 13 CFLQ 137, 153.

[85] Lowe and Murch, above n 84, 152.

[86] The extent to which this obligation is being promoted is questionable. There is a perception amongst some Family Court co-ordinators we spoke with that some lawyers are now actively disparaging about the counselling process and make no attempt to encourage their clients to approach counselling with an open mind. Section 19 Family Proceedings Act 1980.

[87] Section 10(1) Family Proceedings Act 1980.

[88] Section 10(2) Family Proceedings Act 1980.

[89] Meeting with the Law Commission 24 August 2001.

[90] Particularly in light of the Court of Appeal decision in Quilter v A-G [1998] 1 NZLR 523 where the Court of Appeal held that the wording of the Marriage Act 1955 could not be read to accommodate persons in same-sex relationships.

[91] Section 19(1(b)) Family Proceedings Act 1980 is often used to justify such directions.

[92] Presumably relying upon the inherent powers of the Family Court to make such orders as are necessary to facilitate the adequate disposal of proceedings.

[93] See chapter 13 "Mäori Participation in the Family Court".

[94] See chapter 3.

[95] Chapter 13; chapter 14 "Immigrant Groups".

[96] Submission 128.

[97] Relationship Services courses offer some mediation training, but how comprehensive this is, is unclear.

[98] R Mnookin and L Kornhauser "Bargaining in the Shadow of the Law: The Case for Divorce" (1979) 88 Yale LJ 950.

[99] H Astor "Violence and Family Mediation: Policy" (1994) 8 AJFL 3; F Kaganas and C Piper "Domestic Violence and Divorce Mediation" (1994) JSWFL 265; T Grillo "The Mediation Alternative" (1991) 100 Yale LJ 1545; D Ellis and N Stuckless Mediating and Negotiating Marital Conflicts (Sage Publications, California, 1996); E Kruk "Promoting Co-operative Parenting After Separation: A Therapeutic/Interventionist Model of Family Mediation" (1993) 15 Journal of Family Therapy 235, 246.

[100] Law Commission (England and Wales) The Grounds for Divorce (Report 192, HMSO, London, 1990) para 5.34.

[101] See the discussion of the pros and cons of mediation in A Diduck and F Kaganas Family Law, Gender and the State (Hart Publishing, Oxford, 1999) 354_362. See also M Fineman "Dominant Discourse, Professional Language, and Legal Change in Child Custody Decision-making" (1988) 101 Harv L Rev

727_774; and Grillo, above n 99, 1545_1610.

[102] RE Emery Renegotiating Family Relationships, Divorce, Child Custody and Mediation (Guildford Press, New York, 1994) 243; J Kelly "A Decade of Divorce Mediation Research" (1996) 34 Family and Conciliation Courts Review 373;

J Pearson "The Equity of Mediated Divorce Settlements" (1991) 9 Mediation Quarterly 179; K Mack "Alternative Dispute Resolution and Access to Justice for Women" (1995) 17 Adel LR 123.

[103] S Bordow and J Gibson Report no 12: Evaluation of the Family Court Mediation Service (Family Court of Australian Research and Evaluation Unit Research, 1994).

[104] Bordow and Gibson, above n 103.

[105] If mediation were to be used where there has been domestic violence, it might be desirable to have co-mediators conduct the mediation to ensure sufficient protections and parameters.

[106] His Honour Judge P Mahony "Private Settlement _ Public Justice?" (2000) 31 VUWLR 225, 229.

[107] Submission 95 LEADR, 9 April 2002.

[108] Submission 95 LEADR, 9 April 2002.

[109] See Part X Employment Relations Act 2000.

[110] The salary scales range from $60 000 to $117 000 per annum.

[111] Contrast this with the Employment Relations Authority, which deals with approximately 2500 cases a year.

[112] The average cost of a personal grievance mediation that is a long-term dispute requiring repeated mediations is $800. A simple personal grievance, however, might cost as little as $200 to $250, if it is mediated in a single four-hour session.

[113] In comparison, the average cost of a dispute heard by the ERA is $6000, and disputes in the Employment Court have been estimated to cost $13 000.

[114] For a description of selected US and Canadian models see J McLeod (ed) Family Dispute Resolution: Litigation and its Alternatives (Carswell, Toronto, 1987) 86. See also J Pryor and F Seymour "The Mediation Debate: A Contradiction in Terms?" (1998) 2 BFLJ 261.

[115] Australia, Canada, the United States and the United Kingdom.

[116] See J Pryor and F Seymour, above n 114, which gives a comprehensive overview of the benefits and criticisms of mediation of family disputes. See also Kelly, above n 102; M Benjamin and H Irving "Research in Family Mediation: Review and Implications" (1995) 13 Mediation Quarterly 53_82; J Walker "Family Conciliation in Great Britain: From Research to Practice to Research" in J Kelly (ed) Empirical Research in Divorce and Family Mediation (Jossey-Bass, San Francisco, 1989) 29_53.

[116] continued

However, the Government should probably not assume that such mediation services will be cheaper than judicial intervention. Some overseas studies are cautious about the alleged benefits of mediation in relation to costs. See R Ingleby "Court Sponsored Meditation: The Case Against Mandatory Participation" (1993) MLR 441, 442. See also the references in footnote 12 of page 442 of Ingleby's article.

[117] R Emery and others "Child Custody Mediation and Litigation: Custody, Contact and Co-parenting 12 Years After Initial Dispute Resolution" (2001) 69 Journal of Consulting and Clinical Psychology 323.

[118] Bordow and Gibson, above n 103.

[119] Alberta Law Reform Commission Research Paper 20 Court-connected Family Mediation Programs in Canada (Alberta Law Reform Commission, Edmonton, Alberta, 1994) "The Canadian study". In 80 to 90 per cent of cases, the participants felt the mediator was fair and gave them the chance to express their feelings.

[120] Bordow and Gibson, above n 103, 8, conclusion 5.

[121] Bordow and Gibson, above n 103, conclusion 6.

[122] Bordow and Gibson, above n 103, conclusion 8.

[123] Alberta Law Reform Commission, above n 119, 49.

[124] Forty-nine per cent of the mediated cases studied fully settled. Alberta Law Reform Commission, above n 119, 42.

[125] Fifteen per cent reached a partial settlement. Alberta Law Reform Commission, above n 119, 43.

[126] Joint custody was agreed to in 47 per cent of cases, whereas only 5 per cent of non-mediated cases agreed to joint custody.

[127] Alberta Law Reform Commission, above n 119, 49.

[128] Alberta Law Reform Commission, above n 119, 44.

[129] J Kelly "Is Mediation Less Expensive? Comparison of Mediated and Adversarial Divorce Costs" (1990) 8 Mediation Quarterly 15.

[130] Alberta Law Reform Commission, above n 119, 44.

[131] Bordow and Gibson, above n 103, conclusion 7.

[132] Alberta Law Reform Commission, above n 119, 51.

[133] Although there is scope for this, with or without mediation. Certainly a poorly conducted mediation could have long-term negative effects for the child/ren involved.

[134] See C Menkel-Meadow "Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or `The Law of ADR'" (1991) 19 Florida State University Law Review 1, 10.

[135] Many of these cases might currently settle before trial, but will have progressed down a case-management track towards litigation, potentially incurring significant costs in terms of solicitors' fees, costs for counsel for the child, and psychologists' reports, not to mention the costs of Court staff time and judge time, especially if a mediation conference has been held.

[136] Australian Family Court Rules, r 10(1)(a).

[137] See K Foy "Family and Divorce Mediation: A Comparative Analysis of International Programs" (1987) 17 Mediation Quarterly 83.

[138] Provided that decision is not clearly harmful to any party.

[139] Also known as a facilitative or interventionist mediator.

[140] Guidelines as expressed by E Kruk "Promoting Co-operative Parenting After Separation: A Therapeutic/interventionist Model of Family Mediation" (1993) 15 Journal of Family Therapy 235, 243.

[141] In a model of mediation known as impasse-directed mediation, the mediator will often play an ongoing role in supporting the family while they implement their agreement. See L Campbell and J Johnston "Multifamily Mediation: The Use of Groups to Resolve Child Custody Disputes" (1986_87) 14/15 Mediation Quarterly 137.

[142] We suggest that the Massey University/AMINZ-accredited course and affiliation to a professional organisation is an appropriate level of training.

[143] H Astor Quality in Court Connected Mediation Programs: An Issues Paper (Australian Institute of Judicial Administration) Carlton, Victoria, 2001,

13_14.

[144] Submission 95 LEADR.

[145] See chapter 3.

[146] See chapter 3.

[147] This is the term used by the Department for Courts. We prefer case officer.

[148] See paras 462_467.

[149] As team leaders, case progessors have additional responsibilities to provide performance plans and so on for junior staff.

[150] Submission 20.

[151] Submission 79.

[152] Submission 79.

[153] See chapter 8 "Mediation".

[154] Law Commission, above n 1, paras 73_75.

[155] Law Commission, above n 1, paras 73_75.

[156] Submission 97.

[157] Section 20A Guardianship Act 1968.

[158] Redman v Redman (1988) 4 FRNZ 308; (1988) 4 NZFLR 697.

[159] We acknowledge that men can be victims of violence, but because over 95 per cent of applicants are women, we refer here to female applicants and male respondents.

[160] Domestic Violence Act 1995 s 76.

[161] Domestic Violence Act 1995 s 14.

[162] Domestic Violence Act 1995 s 13.

[163] Domestic Violence Act 1995 s 13(a).

[164] Domestic Violence Act 1995 ss 60 and 70.

[165] Domestic Violence Rules 1996 r 26.

[166] Section 6(1)(b) and (d) Domestic Violence Act 1994 (South Australia); s 4(8) Domestic Violence Act 1999 (Northern Territory); s 12(1)(e) Restraining Orders Act 1997 (Western Australia); s 5(2) Crimes (Family Violence) Act 1987 (Victoria); s 10(1)(d) Domestic Violence Act 1986 (ACT).

[167] Section 36 Domestic Violence Act 1995.

[168] Section 76 Domestic Violence Act 1995.

[169] Section 77 Domestic Violence Act 1995.

[170] H Barwick, A Grady and R Macky Domestic Violence Act 1995: Process Evaluation (Department for Courts and Ministry of Justice, Wellington, 2000).

[171] Department for Courts The Domestic Violence Act 1995 Day "Rules" and the Children, Young Persons, and Their Families Act 1989 60 Day "Rule" (Department for Courts, Wellington, 2002).

[172] Section 76 Domestic Violence Act 1995.

[173] This is the thinking behind the Hague Convention on International Child Abduction.

[174] Section 45 Children, Young Persons, and Their Families Act 1989.

[175] Section 44 Children, Young Persons, and Their Families Act 1989.

[176] Department for Courts, above n 171.

[177] Section 13 Children, Young Persons, and Their Families Act 1989.

[178] N Taylor and others The Role of Counsel for the Child _ Perspectives of Children, Young People and Their Lawyers (Department for Courts, Wellington, and the Children's Issues Centre, Dunedin 1999).

[179] These two focus committees reported in 1999, in Report of the Focus Committees: Representing Children in the Family Court: The Role of Counsel for the Child (Department for Courts, Wellington, 1999).

[180] Both practice notes were issued on 17 November 2000 and came into operation on 1 February 2001. They appear in appendix C.

[181] Trapski's Family Law (loose-leaf, Brookers, Wellington, 1994) vol IV, GA30.11(2).

[182] Trapski's Family Law, above n 181, Part 3 of the guidelines.

[183] Above n 180, guideline 8_6.

[184] Taylor, Smith and Tapp, above n 21, 52.

[185] Taylor and others, above n 178, 4.

[186] Submission 7.

[187] Submissions 19, 20, 24, National Collective of Independent Women's Refuges.

[188] Submission 19.

[189] Taylor and others, above n 178, 6.

[190] Submission 20.

[191] Submission 56.

[192] Submission 40.

[193] Submission 48.

[194] Submission 99.

[195] Submission 105.

[196] Submission 24.

[197] Submission 47.

[198] Submission 5.

[199] Submission 61.

[200] Submissions 5 and 23.

[201] Submissions 88, 99, and National Collective of Independent Women's Refuges.

[202] Submission 61.

[203] Submission 29.

[204] Submission 61.

[205] Submission 61.

[206] Submission 5.

[207] Submission 5.

[208] Submission 83.

[209] See appendix E for a copy of practice note 16 "Specialist Report Writers".

[210] LG v LG (1991) 8 FRNZ 52.

[211] An outline of the Psychologists Board complaints procedure appears in

appendix F.

[212] See also chapter 2 "Conciliation Services", and chapter 9 "Court Management".

[213] Law Commission, above n 1, paras 229_257.

[214] Dated 1 July 2000 between Department for Courts and Department of Child, Youth and Family Services.

[215] Section 15 Children, Young Persons, and Their Families Act 1989.

[216] Section 19 Children, Young Persons, and Their Families Act 1989.

[217] Section 29 Guardianship Act 1968.

[218] Waitangi Tribunal Report findings and recommendations of the Waitangi Tribunal on an application by Aila Taylor for and on behalf of Te Atiawa Tribe in relation to fishing grounds in the Waitara District _ Wai 6 (Department of Justice, Wellington 1983) and Waitangi Tribunal Te Reo Mäori Report _ Y11 (Wellington 1986).

[219] There are differing views as to the etymological route of "whanaungatanga". Some writers consider that whanaungatanga derives from the same route as the word whänau (with the first "a" being long) meaning to be born, while others regard whanau (with a short first "a") meaning "lean inclined bend down" to be the relevant verb. New Zealand Law Commission Mäori Custom and Values in New Zealand Law (NZLC SP9, Wellington 2001), 30, footnote 168.

[220] J Williams He Aha Te Tikanga Mäori (unpublished paper for the Law Commission, Wellington, 1998).

[221] Law Commission, above n 219, paras 137_149.

[222] Law Commission, above n 219, paras 150_155.

[223] Law Commission, above n 219, paras 156_162.

[224] . Law Commission, above n 219, paras 163_166.

[225] Section 10 Family Proceedings Act 1980.

[226] Section 13 Family Proceedings Act 1980.

[227] Law Commission, above n 219.

[228] Law Commission Justice: The Experiences of Mäori Women: Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei (NZLC R53, Wellington, 1999).

[229] F Cram and others Evaluation of Programmes for Mäori Adult Protected Persons under the Domestic Violence Act 1995 (Ministry of Justice and Department for Courts, Wellington 2002).

[230] Cram and others, above n 229.

[231] The Lower Hutt Family Court makes referrals under sections 9 and 10 of the Family Proceedings Act 1980 to counsellors at the Lower Hutt Family Centre who provide counselling services to Mäori clients that accord with Mäori cultural values. The Lower Hutt Family Centre also provides programmes under the Domestic Violence Act 1995.

[232] Statistics New Zealand, 2001 Census: Ethnic groups. Ethnic group (total responses) and by regional council (Statistics New Zealand, Wellington, 2001).

[233] 9057 people.

[234] Statistics New Zealand, above n 232. Ethnic groups selected summary characteristics.

[235] Chapter 13 "Mäori Participation in the Family Court".

[236] Office for Disability Issues New Zealand Disability Strategy: Making a World of Difference _ Whakanui Oranga (Ministry of Health, Wellington, 2001) 7. The statistics cited in this chapter are for 2001, unless specified otherwise.

[237] Office for Disability Issues Briefing to the Incoming Minister for Disability Issues 2002 "Towards a fully inclusive New Zealand" <http://www.odi.govt.nz/about/minister-briefing/chapter2.html>.

[238] Statistics New Zealand: <http://www.statistics.govt.nz/domino/external/web /prod_serv.nsf/ htmldocs/Disability>.

[239] Office for Disability Issues, above n 236, 12_13.

[240] Statistics New Zealand: <http://www.stats.govt.nz/domino/external/pasfull /pasfull.nsf/web/Media+Release+2001+Disability+Survey+Snapshot+1+ Key +Facts?open>.

[241] Office for Disability Issues, above n 236, 12.

[242] Many New Zealanders have more than one disability. Statistics New Zealand: <http://www.stats.govt.nz/domino/external/pasfull/pasfull.nsf/web/Media+ Release+2001+Disability+Survey+Snapshot+1+Key+Facts?open >.

[243] Office for Disability Issues, above n 236.

[244] New Zealand Disability Strategy overview, on Office for Disability Issues website: <http://www. odi.govt.nz/nzds/>.

[245] Office for Disability Issues, above n 236.

[246] "Implementation Work Plans 1 July 2002_30 June 2003" from Office for Disability Issues website: <http://www.odi.govt.nz/resources/implementation /2003/implementation-workplans-department-for-courts.html#7 >.

[247] Statistics New Zealand: <http://www.stats.govt.nz/domino/external/pasfull /pasfull.nsf/web/Media+Release+2001+New+Zealand+Disability+Survey+ Snapshot+6+Sensory+Disabilities?open>.

[248] Submission 109.

[249] Statistics New Zealand: <http://www.stats.govt.nz/domino/external/pasfull /pasfull.nsf/web/Media+Release+2001+New+Zealand+Disability+Survey: +Snapshot +8+Intellectual+Disabilities?open>.

[250] "People with an Intellectual Disability _ Giving Evidence in Court". Committee on Intellectual Disability and the Criminal Justice System, June 2000, on Lawlink, the website of the Criminal Law Review Division of the New South Wales Attorney General's Department: <http://www.lawlink.nsw.

gov.au/clrd1.nsf/pages /dis_report_2>.

[251] "Reasonable Accommodation for People with Psychiatric Disabilities: An On-line Resource for Employers and Educators". Boston University Centre for Psychiatric Rehabilitation: <http://www.bu.edu/cpr/reasaccom/whatis-psych. html>.

[252] Statistics New Zealand: <http://www.stats.govt.nz/domino/external/pasfull /pasfull.nsf/web/Media+Release+2001+New+Zealand+Disability+Survey+ Snapshot+9+Psychiatric+and+Psychological+Disabilities?open>.

[253] Law Commission Striking the Balance: A Review of the New Zealand Court System (NZLC PP51, 2002). This evidence is anecdotal; there are no statistics of the actual numbers involved. D Farrar "Litigants in Person _ The Story So Far" (2001) 15 Australian Family Lawyer 4. At that time, the Australian Family Court had said that 38 per cent of parties in contested cases were unrepresented. This article also gives some US figures _ for example, in 1990 in the Domestic Relations Court in a county in Arizona, 88 per cent were estimated to be self-representing, and in 52 per cent of cases both parties represented themselves.

[254] Law Commission, above n 253.

[255] Law Commission, above n 1.

[256] Submission 15.

[257] J Dewar, B Smith and C Banks Litigants in Person in the Family Court of Australia, Report to the Family Court of Australia Research Report No 2 (Family Court of Australia, Canberra, 2000) para 4.5. A distrust of the legal profession was also cited as a main reason.

[258] Dewar, Smith and Banks, above n 257, 5.5.

[259] See D Thompson and L Reierson "A Practicing Lawyer's Guide to the Self-represented" 19 CFLQ 529 and Family Law Council Litigants in Person: A Report to the Attorney General (Family Law Council, Barton ACT, Australia, 2000).

[260] See the Australian Law Reform Commission findings that the median age of self-represented applicants was 35 years. Some 42 per cent were not in paid employment; of those who were, the average weekly income was $492. Slightly more were male than female. Of respondents, the figures were very similar with 35 per cent not in paid employment and a slightly higher average income.

[261] See Dewar, Smith and Banks, above n 257, para 1.4, and chapter 7 "Counselling".

[262] This was found to be the case in the Australian research by Dewar, Smith and Banks, above n 257, ch 10, 61.

[263] See R Pavone "Do Self-represented Litigants Receive a Fair Trial? The Challenge for the Family Court" (2002) 76 Law Inst Jnl 52, 55.

[264] Compare Lord Woolf Access to Justice, Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO, London, 1996).

[265] See <www.lawlink.nsw.gov.au/lpac.nsf/pages/unbundling>. This site contains a comprehensive discussion of the concept, how it can work in practice, the advantages and disadvantages to clients and to lawyers.

[266] Also known as "discrete task representation" or "limited scope representation" or "coaching".

[267] Dewar, Smith and Banks, above n 257.

[268] Brief of the SRL Project 25 September 2000 on the Family Court website <http: //www. familycourt.gov.au/litigants/html/brief.html>.

[269] See above n 268.

[270] The programme has been run since 1999 by the Registry in conjunction with Monash University Family Law Assistance Program, Victoria Legal Aid, and the Victorian Court Network.

[271] Above n 268.

[272] See Fair Go for All a newsletter from the Family Court of Australia for self-represented litigants, (March 2002) 3.

[273] <http://www.familycourt.gov.au/litigants/brochures>.

[274] <http://www.familycourt.gov.au/litigants>.

[275] <http://www.familycourt.gov.au/brochures/welcome01.pdf>.

[276] In Johnson (1997) FLC 92_764; 22 Fam LR 141 revised in Re F; Litigants In Person Guidelines (2001) FLC 93_072 noting that guidelines must not compromise the neutrality of the Court. "Judicial assistance cannot make up for lack of representation without an unacceptable cost to matters of neutrality."

[277] See Dewar, Smith and Banks, above n 257, ch 10, 60. As far as Court staff are concerned, this need has to some extent been addressed in Australia: see above n 275.

[278] <http://www.nswbar.asn.au/Professional/Publications/Otherpubs /selfrepresented16_10.pdf>.

[279] Rule 7.01 New Zealand Law Society Rules of Professional Conduct for Barristers and Solicitors (6th edn, Wellington, 2000).

[280] Ministry of the Attorney General A Guide to Procedures in the Ontario Court of Justice (Queen's Printer for Ontario, Toronto, revised June 2000).

[281] Hon Justice I Coleman "Self-help Centres in the United States and Canada", a report of a study visit to Canada and the United States, 14 January_14 February 2000, printed at <http://www. familycourt.gov.au/papers>.

[282] Discussed in above n 281, by Justice Coleman, 4.

[283] See <http://www.superiorcourt.maricopa.gov//ssc>.

[284] <http://www.superiorcourt.maricopa.gov//ssc//forms>.

[285] Coleman, above n 281, 5. (Actually, Justice Coleman referred to "unbungled" legal services _ we assume this was just a typographic error!)

[286] Coleman, above n 281, 2.

[287] Submission 112.

[288] Submission 13.

[289] In the United States, 42 of the 50 States had conducted inquiries into gender bias through judiciary-led taskforces by 2000. Canada and Australia have also carried out inquiries, including the Report of the Law Society of British Columbia Gender Bias Committee (Law Society of British Columbia, Vancouver BC, 1992); Federal/Provincial/Territorial Working Group of Attorneys-General Officials Gender Equality in the Canadian Justice System (Department of Justice, Ottawa, 1992); Senate Standing Committee on Legal and Constitutional Affairs Gender Bias and the Judiciary (Canberra, ACT, 1994); Chief Justice's Taskforce on Gender Bias Report of Chief Justice's Taskforce on Gender Bias (The Taskforce, Perth, 1994).

[290] J Morris "Women's Experiences of the Justice System" (1997) 27 VUWLR 649, 662.

[291] Law Commission Women's Access to Legal Services (NZLC, SP1, Wellington, 1999) 8_9.

[292] In D v W (1995) 13 FRNZ 336, Fisher J set out a summary list of non-exhaustive factors to be considered in determining the "best interests" of the child:

a) strength of existing and future bonding;

b) parenting attitudes and abilities;

c) availability for, and commitment to, quality time with the child;

d) support for continued relationship with the other spouse;

e) security and stability of home environment;

f) availability and suitability of role models;

g) positive or negative effects of wider family;

h) material welfare;

i) stimulation and new experiences;

j) educational opportunity;

k) wishes of the child.

[293] Submission 25.

[294] Office of the Commissioner for Children Fathers Who Care: Partners in Parenting _ Focus on Fathers (Wellington, 1998).

[295] L Hecht Schafran "Gender Bias in Family Courts: Why Prejudice Permeates the Process" (1994) 17-SUM Fam Advoc 22, 26.

[296] L Moloney "Do Fathers `Win' or do Mothers `Lose'? A Preliminary Analysis of Closely Contested Parenting Judgments in the Family Court of Australia" (2001) 15 Int J Law, Policy and the Family 363, 373.

[297] Submission 20.

[298] ES Schwarz "When `neutral' doesn't really mean `neutral': Louisiana's child custody laws _ an attempt to erase gender bias in the name of neutrality" (1996) 42 Loyola Law Review 365, 381. In Bezou v Bezou 436 So 2d 592, 594, the Court, in awarding custody to the father, reasoned that although both parties were fit, it was significant that the mother was a professional woman who would be busy with her career and not "a traditional housewife available to her child all hours of the day". Likewise, in Cooley v Cooley 411 So 2d 750, 752 (La App 3d Cir 1982) the Court noted that the mother's housekeeping practices left "something to be desired" and that she was a young woman trying to establish herself in her business career. On this basis custody was awarded to the father who was engaged in full-time work 12 hours per day.

[299] Hecht Schafran, above n 295, 26. See also J Horne "The Brady Bunch and Other Fictions: How Courts Decide Custody Disputes Involving Remarried Parents" (1993) 45 Stan L Rev 2073, 2083.

[300] Minnesota Supreme Court Task Force for Gender Fairness in the Courts, Final Report 24 (1989) cited in M Henaghan and W Atkin (eds) Family Law Policy in New Zealand (2 edn, LexisNexis Butterworths, Wellington, 2002) 279_280.

[301] Hecht Schafran, above n 295, 26_27.

[302] Submission 12.

[303] The Family Law Section reports that without-notice applications appear to be being processed quickly around the country. While reports as to processing times vary from between two to 24 hours, it is expected that applications without notice will be dealt with within 24 hours.

See: Family Law Section Domestic Violence Act 1995: Report to the Family Law Section Executive from the Domestic Violence Special Project Committee (New Zealand Law Society, Wellington, October 1998) 12.

[304] Family Law Section, above n 303.

[305] Wellington Community Law Centre "Is the Domestic Violence Act Meeting its Objects?" (August 2002) Council Brief Wellington 6.

[306] R Pond, "Women's Experiences of Domestic Violence and the Legal System" (Massey University Masters Thesis, 2002).

[307] The Wellington Community Law Centre notes that despite the Domestic Violence Act 1995 being drafted to envisage the possibility of self-representation, the length and complexity of the application forms often means clients will need to obtain legal advice.

[308] Submission 13.

[309] Don Rowlands, Christchurch Caring Fathers Support and Education Group.

[310] Don Rowlands of the Christchurch Caring Fathers Support and Education Group notes that Barnados is the only access centre approved officially by the Family Court. The Court does not refer respondents to alternative marae-based programmes such as Rehua (Christchurch) or the Father and Child Trust (Christchurch). He implies that as only one of the nine supervisors of the Barnados Access Centre in Christchurch is male, this is a "father-unfriendly" environment.

[311] As a safeguard, lawyers must provide a certificate in their own name declaring the contents of the application to be true, and that the order is one that ought to be made (Rule 26 of the Domestic Violence Rules 1996). The evidence of applicants is also subject to scrutiny by judges and advocates who might be assisting the making of the order (such as Women's Refuge advocates).

It is of note also that in H v H [1997] NZFLR 869, 876, Judge Mahony commented that in cases where solicitors are not prepared to issue a R26 certificate in support of an ex parte application, the proper course for the solicitor will be to decline the work and refer clients elsewhere. This recognises the special ethical obligation imposed on solicitors to test the contents of their clients' affidavits.

[312] Statistics collated by the Ministry of Justice also show a higher proportion of male-perpetrated homicide. In 2001, 20 of the 21 persons convicted of murder and sentenced to life imprisonment were male. In 2000, 24 males were convicted and five females, and in 1999, 23 males were convicted and no females. Research and Evaluation Unit, Ministry of Justice.

[313] To obtain a protection order, the applicant must show that there has been a history of violence and that the order is necessary for their protection (s14(11) Domestic Violence Act 1995). This could be one of the reasons why proportionately fewer protection orders are granted to men, given that in many cases the gravity of harm experienced by men will be less severe.

[314] See chapter 10 "Court Process".

[315] The costs of litigation may be especially burdensome where proceedings are used maliciously to financially cripple the other party. This is contended particularly in the context of ongoing and protracted custody and access proceedings.

[316] Law Commission, above n 291, 105.

[317] Law Commission, above n 291, 104.

[318] R Hunter "Through the Looking Glass: Clients' Perceptions and Experiences of Family Law Litigation" (2002) AJFL LEXIS 2, 18_19.

[319] R Warshak "Gender Bias in Child Custody Decisions" (1996) 34 Family and Conciliation Courts Review 396, 401.

[320] See R Erickson and G Babcock "Men and Family Law: From Patriarchy to Partnership" (1995) 21 Marriage and Family Review 31. These commentators note that where there is a belief that the Court is biased towards women, US attorneys commonly discourage male clients from challenging applications by advising them that their chance of success will be low.

[321] See Horne above n 299, 2086.

[322] R McCann (Speech to the New Zealand Law Society Family Court Conference, Wellington, August 2002).

[323] See also A Hawkins and S Allen "Maternal Gatekeeping: Mothers' Beliefs and Behaviors That Inhibit Greater Father Involvement in Family Work" (1999) 61 Journal of Marriage and the Family 199_212.

[324] The New Zealand Time Use Survey recorded that on average Mäori women perform 30.9 hours and non-Mäori women 30.6 hours per week on unpaid household tasks. This compared with 16.3 hours spent by Mäori men and 17.4 hours spent by non-Mäori men. Ministry of Women's Affairs Gender Disparities Report Draft Report (Ministry of Women's Affairs, Wellington, 2001) 40.

[325] These figures include full and associate members of the New Zealand Law Society's Family Law Section only. We recognise that other lawyers may practise in the Family Court who are not members of the Family Law Section.

[326] Figures reflect the gender composition of judges in the Family Court as at 1 November 2002.

[327] "Summary of Seminar Evaluations" in Conference Papers _ The Judicial Seminar on Gender Equity (Unpublished, Rotorua, 1997).

[328] Based on the six prerequisites for avoiding gender bias as outlined at the Australian Institute of Judicial Administration's Equality and Justice Conference in October 1995. These included:

1 being aware of the law's historical approach to women;

2 being aware of the facts about women's position in society;

3 having an understanding of the meaning of equality;

4 being aware of gender myths and stereotypes;

5 being prepared to question your own perspectives and values;

6 having an empathetic understanding of people from a different background and having different experiences to your own.

[329] S Martin Conference Papers _ The Judicial Seminar on Gender Equity (Unpublished, Rotorua, 1997) 20.