The Domestic Violence 1995 Act 42 day rules, and the Children, Young Persons and Their Families Act day rule

Transcription

1 The Domestic Violence 1995 Act 42 day rules, and the Children, Young Persons and Their Families Act day rule A report commissioned by the Department for Courts June 2002 Helena Barwick and Alison Gray

2 Disclaimer This research was commissioned by the Department for Courts. The report has been prepared by the authors and the views expressed in it are those of the authors and do not necessarily represent the views of the Department for Courts.

3 Contents Summary... 1 The Domestic Violence Act Children Young Persons and Their Families Act Introduction Background The aims of the study Methodology Research sites Participants Informant interviews Data analysis Limitations The Domestic Violence Act Introduction Extent of delay Reasons for delay in S76 hearings Which of these reasons contributes most to delay Delays related to other sections of the DVA The cumulative effects of different types of delay Court and community factors affecting delay Issues Suggested improvements Children, Young Persons and Their Families Act Introduction Extent of delays Reasons for delay Which of these factors contributes most to delay Court and community factors affecting delays Issues Suggestions for improvement Conclusion Appendix Questions for Judges...35 Domestic Violence Act...35 Children, Young Persons and Their Families Act

4 Summary The Department for Courts commissioned research to investigate the reasons why the 42 day rule in the Domestic Violence Act 1995 (DVA) and the 60 day rule in the Children, Young Persons and Their Families Act 1989 (CYPFA) are not always met in the Family Court. This research, based on interviews with key informants, explores the reasons why these time frames are not being met. The findings will inform decisions as to whether changes in Family Court procedure might lead to improved levels of compliance, or whether the time frames themselves are impracticable in some circumstances. The Domestic Violence Act 1995 There was wide variation between the research sites in the estimated proportion of cases which met the 42 day rule under the DVA. Informants working in and around the large urban courts were much more likely to report the time frame being met, than those in satellite courts. Informants agreed that the most common reason for delay was the lack of available court time. The complication of DV proceedings by other issues, usually custody and access, was another common reason for delay. Negotiations leading to alternative resolutions were also common in the experience of those interviewed for this research. Delays in the filing of evidence were reported in a number of areas. Most informants agreed that the longest delays occurred when other matters, usually custody and access, were being addressed in conjunction with the defence of an application for a protection order. In some courts, notably the smaller courts, lack of available court time also caused long delays, particularly when matters needed to be set down for a hearing of half a day or more. Waiting for the resolution of criminal matters could also cause a lengthy delay to a S76 hearing. Other reasons for delay included courts being short-staffed or having inexperienced staff, unrepresented respondents, availability of counsel, holiday breaks, changes to legal aid and mental health issues. In the experience of the informants interviewed for the report, there were no additional reasons for delay relating to sections of the Act other than S76. The research revealed some distinctly different attitudes towards delay in holding a S76 hearing, with many of those interviewed expressing the view 1

5 that the passage of time often contributed to the better resolution of the matters that had come before the court. Children Young Persons and Their Families Act 1989 Informants in all court areas agreed that a substantive hearing of an application for a declaration under Section 67 rarely commenced within 60 days if the application was opposed. A key factor in establishing whether or not the 60 day rule is being met in CYPFA applications is determining what constitutes a hearing. Some informants held that a pre-hearing conference was sufficient to meet the 60 day requirement, others that a hearing which brings the application to a point of declaration is required to satisfy the requirements and a third view was that a hearing where both a declaration and orders made is needed to meet the requirement. Delays in CYF processes were the most common reason for hearings not commencing within 60 days. Delays in convening the FGC and completing the report on its outcomes meant that the requisite information was not available to the court. In small satellite courts, lack of judicial resources and hearing time was most often the cause of delays, regardless of the complexity of the case. Timetabling issues for complex defended cases caused delays in all courts, regardless of size. The most common factors also caused the longest delays in CYPFA cases. Thus, informants agreed that delays in CYF processes caused the longest delays in commencing hearings, while difficulties in timetabling and in managing complex defended cases also caused significant delays. Lack of hearing time and breaks in Court sittings over the Christmas period could also result in long delays. Other reasons for significant delays were parties pursuing other applications e.g. through the Guardianship Act, delays in obtaining specialist reports, criminal proceedings and counsel seeking adjournments to negotiate with parties. Most of those consulted thought that with the exception of some criminal proceedings, these reasons caused less significant delays than delays in CYF processes or difficulties in timetabling. Small courts, courts with ethnically diverse populations, and courts serving poorer areas faced additional challenges in meeting statutory time frames. 2

6 1.0 Introduction 1.1 Background The Department for Courts commissioned research to investigate the reasons why the 42 day rule in the Domestic Violence Act 1995 (DVA) and the 60 day rule in the Children, Young Persons and Their Families Act 1989 (CYPFA) are not always met in the Family Court. Sections 22, 36, 46, 47, 55, 59, 65, 69 and 76 of the DVA provide that, where a respondent to an application wants to be heard in relation to that application, unless there are special circumstances, a hearing date should be assigned no later than 42 days after receipt of the respondent s notice. Section 200 of CYPFA requires that an application under section 67 of the Act shall, unless there are special circumstances, be heard not later than 60 days after the application is filed in the court. Delays in hearings can affect both the interim situation and outcomes for respondents and their children in the case of the DVA and the outcomes for children and their families in the case of CYPFA. It is also a questionable use of resources for courts to be endeavouring to meet what are often considered to be unrealistic time frames. This study explores the reasons why these time frames are not always being met. The findings will inform decisions as to whether changes in Family Court procedure might lead to improved levels of compliance, or whether the time frames themselves are impracticable in some circumstances. 1.2 The aims of the study The study sought to gather information on the full range of reasons why: the 42 day time period for the hearing of various applications under the Domestic Violence Act 1995 is not always met, and the 60 day time period for commencement of a hearing under the Children, Young Persons and Their Families Act 1989 of an application that a child or young person is in need of care and protection is not always met. 3

7 2.0 Methodology The study was qualitative in design, with data gathered through interviews and group discussions with individuals in selected areas serviced by the Department for Courts. 2.1 Research sites The sample was based on the four court regions, using the clusters within those regions as the sample base. The clusters chosen for the research were: Northern Region Auckland; North Shore Central Region Wellington, including Porirua, Masterton, Upper Hutt, Lower Hutt Waikato Region Rotorua, including Taupo and Tokoroa Southern Region Dunedin, including Balclutha and Alexandra. This selection of courts was made to include large and small courts, courts in rural, provincial and urban areas and courts in areas with a diverse population base. 2.2 Participants In each area, interviews or group discussions were sought with: Family Court staff, including the Family Court Team leader, the DV clerk, the Family Court Coordinator or the clerk or case officer responsible for timetabling, as appropriate Family Court Judges Child, Youth and Family (CYF) lawyers lawyers who frequently undertake Family Court work. Informants who had experience of the DVA were asked to: describe their experiences over the last two years in relation to the 42 day time frame for hearing various applications under the DVA say why they thought these time periods were not always met rank the reasons they gave in order of importance and frequency comment on whether the reasons applied to all or to particular relevant sections of the Act suggest any steps that might alleviate the situation. Informants who had experience of the CYPF Act were asked to: describe their experiences over the last two years in relation to the 60 day time frame for hearing applications under the CYPF Act for a declaration that a child or young person is in need of care or protection say why they thought the time period was not always met rank the reasons they gave in order of importance and frequency 4

8 suggest any steps that might alleviate the situation An example of the interview guide used is included in Appendix 1. The interview guide was amended slightly to make it appropriate for other informants. In almost all cases informants were sent the interview guide before the interview so they had a chance to think through the questions. 2.3 Informant interviews Interviews were completed with 8 Family Court judges, 24 Family Court staff, 3 CYF solicitors and 27 lawyers. Interviews with 2 lawyers were completed by telephone, as they would not otherwise have been available to talk with the researchers. Some difficulties were experienced in contacting CYF solicitors. In one region, the appropriate solicitor was away for the period of the research and the relieving solicitor had little knowledge of the issues in the region. In another region, several CYF solicitors contacted said that they were recent appointments and had insufficient experience to comment. 2.4 Data analysis For the purposes of analysis the Courts were divided into three groups: Large urban courts: Auckland, Wellington, Dunedin Large provincial/satellite courts: North Shore, Rotorua, Lower Hutt, Porirua Small satellite courts Tokoroa, Taupo, Masterton, Upper Hutt, Alexandra, Balclutha No interviews were completed in Warkworth. DVA cases are no longer heard in Warkworth, and no CYPFA cases have been heard there in recent years. 2.5 Limitations Because the study was based on a non-random sample of courts, the results cannot be generalised to all courts. It is important to note that in most interviews, informants estimated the extent of delays, rather than giving a statistically reliable figure. 5

9 3.0 The Domestic Violence Act Introduction Sections 22, 36, 46, 47, 55, 59, 65, 69 and 76 of the Domestic Violence Act 1995 (DVA) provide that, where a respondent to an application wants to be heard in relation to that application, unless there are special circumstances, a hearing date should be assigned no later than 42 days after receipt of the respondent s notice. The DVA 1995, S76, Respondent to notify intention to appear, subsection (3) says this: (3) Where the respondent notifies the court, in accordance with subsection (1) of this section, that he or she wishes to be heard, the Registrar must assign a hearing date, which must be (a) As soon as practicable; and (b) Unless there are special circumstances, in no case later than 42 days after the receipt of the respondent s notice. A 1998 Law Society report on the workings of the DVA reviewed whether the time period under section 76 of the Act was being met 1. The report finds that in general this time limit was not being met. The 2000 process evaluation of the Act found similarly that the rule was being met in less than half of the files studied in the evaluation Extent of delay There was wide variation between the research sites in the estimated proportion of cases which met the 42 day rule. However, within each site informants were very consistent in their estimates of the proportion of hearings held within the time frame. In the large urban courts informants indicated that the 42 day rule was usually met. Informants estimates went as high as 90%. In the larger satellite courts it was a different picture. One of the courts visited estimated that almost all of their hearings were held within 42 days, but all the others indicated that most hearings were not held within this time frame, although many were not far outside the time frame. Informants who worked in or with the smaller satellite courts indicated that holding a hearing within the 42 day time frame was the exception rather than the rule. 1 Domestic Violence Special Project Committee. New Zealand Law Society (1998) Domestic Violence Act 1995: Report to the Family Law Section Executive 2 Barwick H, Gray A and Macky R. (2000) Domestic Violence Act 1995 Process Evaluation. Ministry of Justice and Department for Courts 6

10 3.3 Reasons for delay in S76 hearings In this report the reasons for delay are divided into three types delays that are arguably related to court resourcing or processes, delays initiated by parties, and delays that result from other things. The distinction is useful but not perfect, and some of the issues are interrelated. In reading this discussion of the reasons for delay it is important to remember that delay in holding a hearing under the DVA is not always considered to be a bad thing. Many informants spoke of situations in which they considered some delay to be useful in achieving a more durable solution to the problems faced by applicants and respondents. These issues are canvassed more fully in the discussion later in this report Court related reasons for delay Limited court time Court hearing time is a finite resource and is allocated some way in advance. If there is an upsurge in DVA applications, or in defended applications that need to be scheduled for a hearing, the system has little capacity to respond. DVA hearings are effectively competing for court time with a wide range of other matters with varying degrees of urgency. Some of these matters, such as hearings under the Mental Health (Compulsory Assessment and Treatment) Amendment Act 1999, have been prioritised by law. The problems are exacerbated in smaller and satellite courts which have much more restricted sitting time than larger courts. In these courts longer fixtures usually have to be transferred to a nearby city. Some courts back up DVA hearings. That is, they schedule more hearings than a judge could manage in a day knowing from experience that many of cases will not reach a defended hearing. Frequently the court will not be informed that cases have been otherwise resolved until the day of the scheduled hearing. Backing up was common, but not universal, among the courts included in this research. Although there was a range of reasons for delay given in this research, one court staff said this: Even if everything else went without a hitch, and there were no other delays we still couldn t do it because we don t have enough court time. Systems for allocating court time were described as mysterious and frustrating by some lawyers. To them, there seemed to be no clear logic by 7

11 which matters were prioritised for court time. Filing of evidence When a defence is initiated further evidence needs to be filed. The S76 notice of intention to defend should be accompanied by an affidavit, to which the applicant has the right to respond. In several courts visited the S76 notice was frequently not accompanied by the required affidavit. This has been included as a court related reason for delay, as other courts in the sample do not have this problem as they decline to accept a S76 notice unless it is accompanied by an affidavit. The applicant may also wish to file further evidence in support of her or his application, and there may be evidence from other witnesses to which the respondent has the right of reply. There are often delays in filing this evidence. The situation can be compounded if the court staff are not aware that the paperwork is not in order until the hearing date approaches. Concurrent criminal proceedings It is not uncommon for a DVA application to be made after an incident which has also led to a criminal charge of assault. In the research, it was reported that it was some judges practice to delay a S76 hearing until a finding had been made on the criminal charge. In other situations, respondents sought to have the S76 hearing delayed until the criminal charge had been heard in the belief that their acquittal on the criminal charge would make it less likely that a protection order against them would be granted. Use of the registrar s list and the judge s list The registrar s list is a management tool designed to oversee the progress of matters that are before the Family Court. The criteria for matters to be referred to a registrar s list, and for them to be transferred back to a judge s list varied from court to court in this sample. As a generalisation, it seemed to be that where the DVA application was being dealt with in conjunction with other matters such as custody and access, significant progress in the other matters was required before the file was moved off the registrar s list and put back before a judge. On more than one occasion in this research lawyers indicated that putting pressure on the court by way of ringing the court staff was the best way to get matters back on to the 8

12 judge s list. This research suggests that increasingly judges are using minute hearings as a way of getting parties before the court at an early stage and identifying the issues that the court will need to decide. This is discussed further in a later section of this report. Service In some courts the service of documents was a significant cause of delay. In part, this was a resourcing issue, but respondents deliberately avoiding service of documents could also cause delay. Courts staffing issues Informants identified a range of court staffing issues as contributing to delay in holding DVA hearings. In some courts the volume of S76 notices was such that the staff had difficulty processing them in time to meet the rule. There was a perception in at least one court that there are more fixtures than in the past because a higher proportion of applications are on notice, more applications are being put on notice and more are being defended. Some courts were said to be understaffed and experiencing high staff turnover. Several people interviewed commented that the Act works best when those involved in its administration are familiar with it. The move away from having a dedicated DV clerk and towards more generic administrative roles means it is less likely that court staff dealing with DVA matters will have a close knowledge of the Act and how it works. A few informants mentioned that one of the reasons for delay, although not a major one, was administrative errors and oversights on the part of court staff Delays initiated by parties or counsel The delays discussed in this section are delays initiated by parties. It is arguable that these issues do not of themselves cause delay; rather the delay comes about by the way the court responds to the matters raised. The variability in different judges and courts response is discussed further in section 3.8. Adjournments to allow for negotiations between parties Once the events precipitating an application for a protection order are over, and particularly if a temporary protection order has been granted, parties are sometimes keen to explore solutions other than a final protection order. This is more likely to be the case when the applicant and respondent have an ongoing relationship either as partners or as parents to shared children. 9

13 The Family Court is often asked to defer a hearing if there is the prospect of a resolution. This means that lawyers for the parties may seek adjournments in order to pursue alternative resolutions which may include the respondent completing a programme in return for the application being withdrawn; the respondent completing a programme and offering an undertaking in return for an application being withdrawn; or filing a discontinuance. Scenarios used as illustrations by informants included: S76 adjourned, respondent undertaking a Bridge programme. Applicant has agreed to wait until programme completed to review decision on whether to withdraw her application. application to defend plus application to vary occupancy and furniture order. Parties kept indicating that settlement was approaching so court deferred setting a date. Eventually one party moved out of town, case dropped. Judges varied in their preparedness to grant adjournments to allow for negotiations between the parties. Widening the focus from domestic violence to other issues An application for a protection order frequently coincides with the breakdown of a relationship, and a period of separation which may or may not be permanent. If there are children of the relationship the custody of and access to those children needs to be decided in both the immediate future and the longer term. So, as well as having applied for a protection order, one or other party to the relationship may well have initiated custody or access proceedings in the Family Court. The judges and courts in this sample varied widely in their response to the inclusion of other matters with determining the need for a protection order. Some were prepared, or even preferred, to deal with the matters that were before the Court together, believing that the result would be a more durable resolution for those involved; others were strongly of the view that a finding must be made on the issue of domestic violence before custody and access matters were determined. If other matters were dealt with in conjunction with the defence of an application for protection order it made the process much more protracted, and therefore more unlikely that a hearing would be held within the time frame. It also meant that a longer hearing time was likely to be required. Hearings of half a day or longer almost inevitably involved a wait. Widening the focus also made it more likely that specialist reports would be sought, or that parties 10

14 would be directed to counselling, both of which further protracted proceedings. Unrepresented respondents There was a widespread view that there has been an increase in unrepresented respondents. Several people interviewed for the report thought that unrepresented respondents were a factor contributing to delay, but this was not a unanimous view. Unrepresented respondents were seen to contribute to delay because they could be more difficult to contact, were unfamiliar with the process and were likely to leave the filing of papers until the last minute Other delays Availability of counsel If an applicant or respondent wants a particular lawyer, or if there is a limited range of lawyers doing Family Court work in an area, then hearings are sometimes delayed because counsel are not available on the hearing date offered by the court. Holiday breaks Hearings are generally not scheduled in the weeks immediately following the Christmas and New Year period. This break and other school holidays, when counsel may themselves take holidays, were identified as contributors to the statutory time frames not always being met. Overseas witnesses Occasionally witnesses required for a hearing are overseas, and the hearing must be delayed until they are available. Changes to legal aid It can take up to six weeks for the application for legal aid for the defence of an application for a protection order to be decided. A lawyer who has no way of knowing whether the work involved in preparing a defence will be reimbursed, is likely to delay preparing that defence until a decision on legal aid has been made. Mental health issues On a small number of occasions one or other party is not mentally fit to be heard. The focus here is said to shift to treatment for the party concerned and the time frame may not be met. 11

15 3.4 Which of these reasons contributes most to delay Most common reasons for delay There was widespread agreement that the most common reason for delay was the lack of available court time. The complication of DV proceedings by other issues, usually custody and access, was another common reason for delay. Negotiations leading to alternative resolutions were also common in the experience of those interviewed for this research. Delays in the filing of evidence were common in a number of courts Reasons causing the longest delays There was a high measure of agreement that the longest delays were when other matters, usually custody and access, were being addressed in conjunction with the defence of an application for a protection order. In some courts, notably the smaller courts, lack of available court time also caused long delays, particularly when matters needed to be set down for a hearing of half a day or more. Waiting for the resolution of criminal matters could also cause a lengthy delay to a S76 hearing. 3.5 Delays related to other sections of the DVA 1995 Informants were asked whether there were particular delays associated with any of the following sections of the DVA 1995: S22 Conditions relating to weapons S36 Direction to attend a programme S46 and S47 Power to vary or discharge a protection order S55 and S59 Power to vary or discharge occupation or tenancy order S65 and S69 Power to vary or discharge furniture orders Many informants noted that a S76 notice was very often accompanied by a S36 objection, although the S36 did not cause additional delay None of the other sections were seen to be particularly prone to delays, although the research revealed isolated examples of delay relating to one or other section. On the contrary, should an application for a occupation or tenancy order accompany an application for a protection order, it could 12

16 sometimes increase the priority given to the matter as it was an indication that one or other parties living arrangements needed to be sorted out promptly. 3.6 The cumulative effects of different types of delay In informants experience it was not unusual for a case to involve several delays of more than one type. When there was more than one type of delay the cumulative effect could result in a significant period between the S76 notice and the hearing. One lawyer gave this example: Application for Temporary Protection Order accompanied by application for interim custody (31/10). Granted. Respondent indicated intention to defend and also applied for custody. CFC appointed, S29 and S29A reports called for. DVA defence to be heard at the same time. Adjourned to 7/12. Adjourned on 7/12 to allow parties to file affidavits. Set down for hearing after 23/1 to allow for Courts Christmas closure. On 2/1 S29 report received. Respondent made counter application for TPO following threats. 20/6 S29A report received. 10/7 one day hearing DVA and custody. 3.7 Court and community factors affecting delay Main centre courts, larger satellite courts and smaller satellite courts There was a distinct difference apparent between courts in main centres and other courts in the extent of the delay in holding S76 hearings. Courts in two main centres generally experienced much less delay in holding S76 hearings and attributed this to the availability of court hearing time. There appeared to be an almost direct relationship between the hearing time available and the extent of delay in holding S76 hearings. This was not the case in the court in the third main center where the delays were longer, largely because of a particular judge s approach to defended applications. In the larger cities, where there are teams of Family Court Judges there is also a greater likelihood of a more standard approach to the management of domestic violence proceedings which may result in delay in S76 hearings being minimised. Satellite courts reported much more difficulty in meeting the rule. At least two courts visited had a hearing day only every 6-8 weeks which made it impossible for the majority of defended hearings to be heard within 42 days. The difficulties for these and other satellite courts were compounded when longer hearings were required. 13

17 The lack of services to support Family Court processes can be a cause of delay in some rural areas. The lack of domestic violence programmes, counsellors and supervised access centres all contribute to delay in resolving matters before the Family Court. While only the availability of programmes relates directly to the DVA, when other matters are being addressed at the same time, the availability of other services becomes a contributing factor Courts with diverse populations Family functioning is strongly culturally determined. The ethnic and socioeconomic diversity of the population served by a Family Court has a distinct impact on what comes before the court and on the way matters proceed. This impact is likely to be more obvious in guardianship, custody and access matters than in domestic violence but, when as in many courts, these are dealt with together, the socio-cultural make-up of the community has an impact on delay. Courts with ethnically diverse populations noted that it was very common, in non-european cultures, for wider family members to become involved in what would be regarded as nuclear family matters by most Europeans. Some of the domestic violence programmes for Maori and Pacific respondents are held over a longer time than those for other respondents. If the judge is waiting for a programme to be completed before making a determination on an application for a final protection order, this can contribute to delay Judge, Family Court staff and counsel perspectives There was considerable variation in the perspectives and approaches of the judges interviewed for this research. Some judges prioritised the DVA application over other matters and worked towards an early resolution of a defended application; others were of the view that more durable solutions were achieved by addressing all the matters before the court together, and allowing the parties time to negotiate their own solutions. Otherwise, there were no obvious differences in the views of any groups of informants interviewed for the research. Generally, within each research site there was a high degree of consistency between informants about the extent of delay in S76 hearings, and the reasons for that delay. 3.8 Issues Attitudes to delay The research revealed some distinctly different attitudes towards delay in holding a S76 hearing. In a number of sites, although informants thought that the majority of hearings 14

18 were not held within 42 days, this was of little concern. In these situations the prevailing attitudes were that in many cases delay in holding a hearing allowed time for the parties to resolve issues in their own way. All the people taking this view stressed that they were talking about delay in the situation where a temporary protection order had been granted and therefore the applicant was protected from further violence, and in which arrangements for access have usually been agreed between parties. These were some of the comments made by informants: An application for a TPO often reveals a whole lot of other things that need to be sorted out as well. This is the time to do it. (Lawyer) There is a widespread view that the longer something is cooking the easier it will be to resolve. There is usually no urgency from the applicant because she has got a temporary order, and no urgency from the respondent because there is usually an arrangement in place for him to see the kids. (Judge) Delay is not always a bad thing. If there is a temporary protection order in place it can create an atmosphere where parties can work things out without a fear of violence. (Judge) Our focus is on trying to mend things in the long term. Processes take second place to what is really important. (Court staff member) The people taking these views often thought it appropriate that custody and access issues were dealt with alongside an application for protection order. A related view, expressed by a few informants, was that the hearing itself can be a negative experience and should therefore be avoided if possible. One judge made this comment: In DV the hearing itself can be a form of abuse. The hearing can be corrosive and destructive of people s self respect and their relationships with others. (Judge) And a lawyer said: The hearing itself is a horribly stressful process. We say we re testing the evidence but actually we re telling them that we don t believe them. (Lawyer) The views expressed above were in marked contrast to the other perspective which not only prioritised the application for a protection order but also held that domestic violence matters must be dealt with before any determination could be made on custody and access. The informants who expressed this 15

19 view were far more concerned about delays in holding S76 hearings. A related perspective was that DVA applications are of two distinct types. First, there are applications made when an act of violence has occurred as part of the break-up of a relationship. Secondly, applications are made when both the violence and the relationship are likely to be ongoing. Generally, informants considered that the second type of application needed to be determined much more urgently Alternative resolutions It was apparent throughout the research that alternative resolutions to applications under the DVA are common. One judge said this: I am hardly ever having to decide these cases now. They are generally settled by consent one way or the other. The volume of cases that need a final determination is far fewer. (Judge) There was a range of views about the appropriateness of alternative resolutions to a DVA application. This research found widespread use of undertakings, particularly in some courts. There were some who considered this quite appropriate, as this comment shows. People are much happier if they don t lose a case. If they can be proactive in what is essentially the same outcome it will work out better. (Judge) Another judge however was less convinced: Some would argue that it is within the spirit and philosophy of the Family Court to accept (undertakings) and that it is a resolution with dignity and self-determination, but it creates real issues for judges, especially where children are involved. Has the violence simply gone away? (Judge) One of the disadvantages of undertakings is that they include no agreement of the facts about whether the violence occurred and are therefore of no help to the court if a determination needs to be made about safety in relation to custody or access. If undertakings are offered and accepted instead of a protection order being granted, the court is often subsequently faced with the need to hold a S16b hearing under the Guardianship Act. The view was expressed by several informants that changes to legal aid were directly responsible for an increase in the use of undertakings. In their view, lawyers no longer find it economic to go to a defended hearing and actively 16

20 encourage their clients to settle for undertakings. Other alternative resolutions identified in the research included consent to the order, discontinuance of proceedings, withdrawal of application and application to discharge Interface between DVA and other Family Court matters A recurring theme through the research was the conjunction of an application for a protection order with other proceedings before the Family Court. As has been discussed, informants held very different views on whether dealing with the matters together or consecutively is appropriate. In all matters other than an application for a protection order, the thrust of the Family Court is towards conciliation, involving mediation if required. Parties are encouraged to work out constructive resolutions of their difficulties. A defended application for a protection order on the other hand, potentially places those same parties in an adversarial situation. As one lawyer pointed out, these are fundamentally incompatible, and to deal with custody and access matters and a defended application for a protection order together inevitably means that the DVA issues will have a lower priority. She said: If there are custody and access issues then it is better for the DVA to dribble through more slowly. The hearing for DVA will just rark up the custody proceedings. The fallout is that things become more difficult in the custody area. (Lawyer) Custody and access issues frequently involve mediation between the parties. The climate for constructive mediation may not be created if a defended hearing for a protection order has been scheduled The definition of a hearing There are different interpretations of what constitutes a hearing. While this issue is not so pronounced in DVA matters as in CYF matters, it is still relevant to this enquiry. Increasingly judges appear to be using the judges list day to give the opportunity for a minute appearance of the parties to clarify the issues and get an indication of each party s position. Another practice is for parties to be called to court for a review within a few weeks of a temporary protection order being granted. There was some discussion about whether such appearances do in fact technically constitute a hearing, although general recognition that they do not constitute a substantive hearing. 17

21 3.8.5 Changes in the way the DVA is applied One of the issues raised in interviews was that the DVA is being used somewhat differently now than in the early days of the legislation. The view was expressed that there are now fewer applications being made without notice, and more of those, which are made, are put on notice. There is a greater propensity for respondents to indicate their intention to defend the application, although a very high proportion of those do not reach a defended hearing. There was also a view that lawyers and judges are much more alert to the possibility that an application for a protection order may be made to gain strategic advantage in other matters before the Family Court, with the result that fewer such applications are made or granted. Another view expressed by court staff in at least two sites who had worked with the DVA for some time was that an application to withdraw or to discharge a protection order is much more likely to be granted now than in the early days of the legislation. Judges will frequently appoint counsel for child if there are children involved, but otherwise the most common practice is for judges to allow applications to withdraw or discharge to go ahead without requiring the applicant to appear. Court staff in a large city noted another change that is having an effect on the way the legislation works in practice. In the past junior staff in a legal practice would undertake straightforward DVA applications but more complex ones would have the attention of a senior practitioner. With the changes to legal aid this is less and less the case, and now junior practitioners do almost all domestic violence work with the result that the standard of work is quite variable. Of particular concern was the apparent lack of understanding of when an ex-parte application was needed. 3.9 Suggested improvements Understandably, those informants who did not see delay in holding a hearing as a problem, had not given much thought to what could be done to minimise delay. In those courts where the lack of available hearing time was identified as the main problem, most informants thought that the provision of more hearing time would go a long way to reducing the time between a S76 notice and the hearing. Smaller courts were particularly keen to have more judge time allocated to them. Having judges work a longer day was another suggestion. Courts which back up defended hearings were clear that this practice is 18

22 critical to the court being able to meet the 42 days. Not all were convinced that simply increasing the amount of judge time would solve the problems though. This is what one judge said: Throwing more judges at the problem is not the answer. It s the organisation of judicial and court resources. If it were given priority over everything else, of course it would be manageable. (Judge) Two other improvements to resourcing that were suggested by smaller courts included having more Family Court rooms available both for hearings and for mediation. A few lawyers thought delays could be reduced by clearer and more transparent court scheduling practices. The larger courts, which were meeting the time frame, acknowledged that they were advantaged, relative to smaller courts, by having Family Court judges readily available. However, they indicated that one of other factors enabling them to meet the time frame was that process was judge driven rather than party driven. One suggestion that supported the process being judge driven was for matters to be kept on the judge s list rather than adjourned to a registrar s list. Other suggestions to support expeditious progress towards a defended hearing were to use hearing plans or memos from counsel which clarify the issues to be decided and attempt to keep the process on track. Some informants supported having the option of an urgent hearing if one was needed. One large court already has half a day a week of unallocated judge time which can only be allocated close to the time by the judge himself or herself. This court was enthusiastic about this provision saying it allowed matters that really needed a judge s urgent attention to receive it. Informants working in or with courts which refuse to accept a S76 notice unless accompanied by an affidavit thought that this was an effective strategy for reducing one common form of delay in the filing of evidence. At least one court gave every temporary protection order, whether or not a notice of defence had been filed, a review date of about three weeks at which time parties appeared before a judge. In the view of the court staff this was an effective mechanism for establishing which cases needed to be prioritised for hearing time. 19

23 4.0 Children, Young Persons and Their Families Act Introduction This section discusses delays in meeting the 60 day rule under the Child, Young Persons and Their Families Act It reviews the extent of delays, reasons for the delays and issues raised in relation to the 60 day rule. The so-called 60 day rule is established in Section 200 of the Act. This Section provides: Where an application is made to the Court for a declaration under Section 67 of this Act, the Court shall, as far as it is practicable, give priority to the proceedings to ensure that, unless there are special reasons why a longer period is required, the hearing of the application commences not later than 60 days after the application is filed in the Court. Section 67 provides: A Court may, on application, where it is satisfied on any of the grounds specified in Section 14 (1) of this Act that a child or young person is in need of care or protection, make a declaration that the child or young person is in need of care or protection. 4.2 Extent of delays Informants in all court areas agreed that a substantive hearing of an application for a declaration under Section 67 rarely commenced within 60 days if the application was opposed. Where an application was not opposed, two of the main urban courts were usually able to begin the substantive hearing within 60 days, and one was sometimes able to do this. Large and small satellite courts were rarely able to hold hearings within the time frame. In all courts, the ability to hold a hearing was influenced by whether or not the Family Group Conference (FGC) had been convened. If, as appears common, the application for declaration is filed at the same time as an urgent ex-parte custody order, an FGC is unlikely to be held, and will therefore need to be convened within the 60 days. The Act provides for an application for a declaration to be made after an FGC has been held and agreement reached, but this seems to be less common. Some courts routinely held a pre-hearing well within the 60 day period, but the substantive hearing might or might not begin within 60 days. 20

24 4.3 Reasons for delay As in the section on the DVA, the reasons for delay are divided into three types delays related to court resourcing or processes, delays related to CYF processes, and delays due to other reasons. While some informants believed that delay in holding a hearing for an application for a declaration under CYPFA could lead to a better outcome for children and their families, most thought that a delay was not in the best interests of the children or their families Court-related reasons for delay The definition of a hearing A key factor in establishing whether or not the 60 day rule is being met in CYPFA applications is determining what constitutes a hearing. Three views emerged in the course of the research: a pre-hearing conference for timetabling and directions is sufficient to satisfy the 60 day requirement a hearing that brings the application to the point of a declaration being made, but not necessarily of the plan being in place is needed to satisfy the 60 day requirement a hearing where both a declaration and orders are made is needed to satisfy the 60 day requirement. While Family Court staff in two courts suggested that the first option could be considered sufficient to meet the 60 day requirement, most informants agreed that Section 200 implies that the hearing should be a substantive one. Several informants commented that it is important to distinguish between the declaration and the disposition of the case. Some judges have adopted the practice of declining to make a declaration until plans for the child s care and associated matters are in place and orders relating to them can be made. That is, they insist that the declaration and disposition of the case occur at the same time. Others are prepared to make a declaration with orders for disposition being made at a later date. Hearing time and timetabling issues A complex application for a declaration typically requires a 1-2 day hearing but may require a hearing as long as 4-5 days. Few courts had the resources to allocate that much time in a block within the time frame, and smaller courts with relatively few sitting days found it virtually impossible to do so. Court closures over Christmas added to delays. 21

25 Several informants commented that delays in initial timetabling usually lead to longer fixtures being required. Updated reports are usually needed, interim applications for access may have to be heard and additional issues may be raised. Timetabling can be difficult in complex cases because of the number of parties involved. Besides CYF, participants usually include counsel for the child, counsel for the father and/or mother, counsel for other parties, and specialists. They all need to be prepared for and available to attend a hearing on a given day. The absence of any counsel, or of one or more parties, or of specialist reports could lead to adjournments and contribute to delays. Use of registrars lists In some courts, CYF files are monitored through the registrar s list until all parties, including CYF, are ready to proceed. At that point, files are transferred to the judge s list and a hearing date set. In other courts, files remain on the judge s list. Frequent adjournments to the registrar s list can lead to long delays, and some courts have adopted the practice of allowing only one adjournment before the application is put back on the judge s list. Some lawyers had sought to have cases moved from the registrar s to the judge s list to speed up proceedings. Staff in a main urban court described their practice: We keep them in the judge s list. Counsel know they have to turn up. If a file goes to the registrar s list for monitoring, we only give it one adjournment before it is returned to the judge s list. We have a flag on the computer to check. (Family Court staff) Staff in a provincial court had instituted a check four weeks before the hearing date to ensure that all parties were on track with their paper work. Guardianship Act and other proceedings In some cases, parties agree to the declaration at the FGC then decide to oppose it. They may seek other applications under the Guardianship Act, which delay the hearing of the application for a declaration. In a small proportion of cases, criminal proceedings for either the young person or an adult can also cause delays. Use of mediation hearings Increasingly, the Courts are using mediation hearings before a declaration hearing is held. These mediation hearings are typically held where there is 22