9.91The New Zealand Family Court was established in 1981. Alternative dispute resolution processes have developed quite differently in New Zealand to those in Australia. The first level of dispute resolution is counselling at the court or privately. If this does not settle the matter, then a mediation conference is held, the aim of which “is to demonstrate to a couple that settlement of the dispute is their responsibility”.1025 If the mediation conference fails to bring resolution to the dispute, then the final step is adjudication.
9.92Counselling is available on request by one of the spouses,1026 or by “mandatory referral” after an application for a separation order.1027 Discretionary counselling is available when the court considers, at any stage of the proceedings, that such counselling may promote reconciliation or conciliation.1028 Section 10(4) of the Family Proceedings Act 1980 provides that a judge may direct referral to conciliation counselling in an application under the Guardianship Act 1968 relating to custody of a child.
9.93However, counselling can be dispensed with if the Family Court judge gives a direction that violence has been used or threatened against a spouse or child, or if delay or other reasonable cause exists.1029 The counselling takes place through marriage guidance or private counsellors, but outside the court premises.1030
Duty of lawyers
9.94Referral to conciliation counselling may also come from legal advisers who have a statutory duty to encourage conciliation.1031 The solicitor must certify, on setting down any family proceedings or custody matter, that he has carried out his responsibilities to ensure that the spouse:
“(a) is aware of the facilities that exist for promoting reconciliation and conciliation, and
(b) take such further steps as in the opinion of the barrister or solicitor may assist in promoting reconciliation or, if reconciliation is not possible, conciliation”.1032
1025 Wilson, “Alternative Dispute Resolution”, Auckland University Law Review, vol. 7 (2), 362, 363, (1993).
1026 Section 9 of the Family Proceedings Act 1980.
1027 Section 10. Section 19 places a duty on the court in all proceedings between a couple and proceedings concerning custody or access, to consider the possibility of reconciliation or conciliation, and to take such further steps as may assist in promoting reconciliation, or conciliation.
1028 Section 19.
1029 Supra at section 10 (3).
1030 Approximately 25-30% is provided by marriage guidance counsellors, 55% by private practitioners and the rest by community agencies. See Maxwell, Family Court Counselling Services and the changing New Zealand family. Family Court Counselling Research Report No.1 (1989), at 62.
1031 Section 8.
1032 Section 8(a) and (b) respectively of the Family Proceedings Act 1980.