A recent High Court decision raises some very interesting issues for family dispute resolution providers, a NZ lawyer says.
FairWay Resolution Ltd’s Denise Evans discusses the recent case Gordon v Campbell.
The recent High Court decision of Gordon v Campbell [2015] NZHC 1264 PER Duffy J raises some very interesting issues for FDR Providers who may receive a request from a parent who has, for whatever reason, had no contact with a child for an extended period or may in fact have had no contact ever with a child since its birth.
The FDR Provider is obliged by section 11 (1) of the Family Dispute Resolution Act 2013 to determine whether it is appropriate to start family dispute resolution for a family dispute.
The question then is; should the FDR Provider make any judgment about the reasons why a parent is not engaged in a parenting role? Is the FDR Provider at risk if he or she makes a decision that it is not appropriate to start family dispute resolution for any particular family dispute?
Briefly the facts in Gordon v Campbell are that the Family Court refused a birth mother whose child had been adopted by paternal grandparents leave to apply for a Parenting order as to contact. The Adoption had been intended to be an “open adoption”, the grandparents had committed to contact for the child with his mother and to tell him of the circumstances of his adoption at an age when he could understand.
The High Court confirmed the Family Court decision and held that the mother is in fact a “stranger” to the child both legally and factually. She had not established that she had a sustainable interest in promoting the welfare and best interests of the child having had no contact for 6 years. The concern was that the child may suffer from emotional disturbance if the birth mother was able to progress her case. Whilst the Court may have made a decision in the Gordon v Campbell case, it is unlikely that the dispute will in fact be resolved, especially for the child who at some point in his life will need to understand the decisions made about his family and his relationships within that family
It would be interesting to know what might have happened if the mother had prior to making an application to the Family Court approached an FDR Provider for FDR mediation.
The FDR Provider would have made contact with the child’s caregivers and also with the child’s father. The Provider may have encouraged the parties to at least attempt mediation because of the principles of the Care of Children Act which require the person having the care of the child to ensure that the child continues to have a relationship with both of his or her parents, and that a child's relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened.
The test for whether or not a person is eligible for FDR is specified as being that group of people who are undertaking a parenting role. On one level that could mean that FDR would be available for a dispute between the grandparents who were fulfilling that parenting role. It also implies that the service may not be available to persons who are not engaged in a parenting role, but does it?
The FDR Act requires the FDR Provider to create an FDR process which enables parties to an FDR dispute to reach agreement on matters which serve the best interest and welfare of the children who are involved in the dispute. The FDR Provider must include consideration of the circumstances of the parties in relation to the child and therefore the impact on the child of the dispute.
The FDR Provider could make a decision that it is not appropriate to start FDR because the person seeking to enter into the FDR system, although a biological parent, does not have a relationship with the child and therefore is not undertaking a parenting role even though they have a legal right to make an application under section 47 of the Care of Children Act 2004.
Equally if all parties are willing to participate then mediation may well be the very best place for them to build a plan for how the child might develop a relationship with the other parent. The FDR Provider will not know that until and unless they make contact with the other parties.
That said the power of FDR to “heal family difficulties should not be underestimated. The statistics speak for themselves with 96% of people who participate in FDR reaching at least some agreement.
It seems that the safest path for the FDR Provider would be to allow the decision as to whether or not the parties attend mediation to be made by the parties themselves. Parties are able to access legal advice through the Family Legal Advice Service, if they are eligible for a government funded service or through their own lawyers.
Equally lawyers need to come on board with the FDR system and consider the effect on people of having to go through extended court processes including appeals, when giving advice on whether people might consider giving FDR a go.
