Submission by the Family Law Committee of Auckland District Law Society Incorporated to the Ministry of Justice in response to its consultation paper: “New Fees Framework for Family Legal Aid Providers”

Introduction The Family Law Committee of the Auckland District Law Society Incorporated (“the Committee”) is committed to providing feed back to the “Consultation Paper – New Fixed Fees Framework for Family Legal Aid Providers”, disseminated 16 February 2012, with a response date of 9 March – extended by one week to 16 March 2012. The Committee is aware that the Mental Health and Disability Committee of the Auckland District Law Society Incorporated and the Family Law Section of the New Zealand Law Society are likely to be making separate submissions and the Committee intends for this submission to complement those. The Committee notes the following points: “Cursory Consultation” 1. From the outset, the Committee records its grave concerns about the minimal timeframe

for consultation. 2. Four weeks is objectively an inadequate timeframe to provide considered responses to

this consultative document, given the “root and branch” reform of Family Legal Aid that it proposes.

3. The Committee notes that for 50 per cent of the 4 week consultation period, the

Committee was obligated to completing extensive written submissions for the Review of the Family Court, a consultative process also initiated by the Ministry of Justice with a known deadline of 29 February 2012.

4. Consequently, the initial deadline for a response of 9 March 2012, allowed for a one

week consultation period. The extension allows for 2 weeks. 5. An effective two week period for consultation can only be viewed as token. 6. A “Family Fixed Fee Framework” Presentation to Auckland District Law Society

Incorporated (“ADLSI”) on 8 March 2012 was provided by the Ministry of Justice on 24 hours notice to the Committee of the confirmed meeting time. It allocated 3 hours to this presentation.

(a) The purpose of these 3 hours appeared to be to supplement the information in

the Consultation Paper, and answer any arising questions.

  

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(b) Presenters Riaz Azam, Andrew Harbridge and Andre Chatvick and Patricia Govender (“the Presenters”) were faced with the frank and direct concerns of the members of the Committee, and the ADLSI Mental Health and Disability Committee.

(c) Hand written notes of these concerns recorded by Patricia Govender are

attached to these submissions as Appendix A.

(d) The Committee formally repeat their request to make Oral Submissions to Stuart White, Acting Deputy Secretary of Legal Services on this consultation paper. Oral Submissions should be prior to the date for the Final Decision Date – 6 April 2012. The Committee requests notice of a date for Oral Submissions no later than 2 weeks prior to the Final Decision Date. A date for Oral Submissions should be no later than 1 week prior to the Final Decision Date.

“Cost Cutting” – Fixed Low Legal Fees 7. Fiscal imperatives drive fixed fees. The goal – a 10 per cent cut in costs, purportedly a

cabinet directive. The 10 per cent reduction was quoted by the Presenters on 8 March 2012 as the target for costs reduction.

8. Why a 10 per cent costs cut? The current legal aid funding model is financially

“unsustainable” and needs to “better match public funding to New Zealanders legal needs”.1

9. The reductions in guideline times and fees2 for the fixed fee model are to generate this

10 per cent reduction in costs. 10. The major cause of increased costs is not inflated legal hourly rates or time allowance.

The major cause of increased legal aid costs was law reform in 2006 to increase the eligibility threshold for legal aid. “Legislative changes in 2006 increased legal aid eligibility from 750,000 to approximately 1.2 million (a 60 per cent increase) which may better explain why most of the 38 per cent rise in total legal aid costs (since 1999) has occurred since 2005.”3

11. “Changed Eligibility” thresholds for legal aid for family applicants will be announced in

May 2012. This was confirmed by the Presenters on 8 March 2012.

12. A “changed”/ reduced threshold of eligibility for legal aid will likely reduce “up-front costs” to the government, that is, fewer applicants, less legal aid paid.

                                                       1 “Fixed Family Fees Framework” Proposals for Change – MOJ ADLSI Presentation 8 March 2012 – slide 3. 2 Down to $105 per hour, for less time and capped hours. 3 “Legal Services Agency needs major overhaul, says Law Society” By Craig Sisterson, NZ Lawyer, March 14, 2012.

  

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13. The Presenters further confirmed on 8 March 2012, that the model on page 8 of the consultation paper means:

(a) 85 - 95 per cent of cases would be “fixed fee” or “fixed fee plus” @ $105 per hour; (b) 5 - 15 per cent of cases would be “legally complex cases” @ $134 per hour;

14. “Bulk categorisation” for bulk funding classifies almost all cases as “not

complex”. Not complex includes:

(a) Children; (b) Mentally ill and incapacitated; (c) Victims of domestic violence; (d) Children, whose families the state regards as so dysfunctional, as to be in

need of care and protection; (e) Relationship Property matters;

15. “Complex” and not suitable for fixed fees “as of right” are Hague Convention and

Intellectual Disability proceedings. 16. The Committee notes that the former Minister of Justice Simon Power was quoted as

shielding vulnerable groups from legal aid reform. “I want to make it very clear up front that any changes will not affect cases involving vulnerable parties, care and protection of children and serious criminal matters”.4 Clearly that position has shifted, if vulnerable groups face decreased eligibility, fixed and less time being able to be spent on their “not complex” cases.

17. The Committee was informed by the Presenters on 8 March 2012 that in completing the

statistical sample to determine that 85 - 95 per cent of family cases were not complex, that:

(a) A limited period of only 14 months during a 5 year period of increased eligibility

for legal aid was considered; (b) There was no comparison of the period prior to increased eligibility in 2006; (c) “Selective sampling” – the most complex cases the agency deals with were

excluded from the sample; (d) The rates of refusal of amendments to grant of aid were not considered

(amendments to grant and refusals are an indicator of a complex case).

18. A statistically limited sample, eliminating the most complex cases, and “averaging” out the results provided the basis for determining that most Family Court cases are “not complex” and deserving of bulk low fee funding and rationed/ fixed time.

                                                       4 “Proposals to tackle unaffordable growth in Legal Aid” - Former Minister of Justice, Simon Power, 13 April 2011, beehive.govt.nz

  

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19. This statistically questionable explicit judgment that 85 - 95 per cent of family cases are “not complex” underpins the funding model, and justifies low fees, and fixed times.

20. Consequently the funding pool for legal aid is being reduced in four ways:

(a) Gate keeping – letting fewer applicants in; (b) Price Cutting – A 21 per cent reduction of the charge-out rate for providers

from a maximum of $134 to $105 flat rate for all, regardless of experience;5 (c) Fixed Time Contract – less time to do the same work, or to do more work than

previously; (d) Bulk Funding by Classification – deeming 85 - 95 per cent of the Family Courts

work as “not complex”, funded on low fixed fees. 21. We evidence paragraphs 20 (b) and (c) above in Appendix B. This Appendix

presents an analysis of the current hourly guideline rates/ activities in comparison to the proposed fixed fee model for four areas of legal aid provision:

(a) Care of Children; (b) Domestic Violence; (c) CYPF; (d) Relationship Property.

22. The analysis leaves no doubt that significant cuts, well in excess of the goal of 10

per cent are to be instituted in July 2012.6 Fees are reduced by up to 77 per cent in some instances. Time is reduced by up to 65 per cent in some cases. The norm across these four exemplars is to exceed the 10 per cent goal by some distance.

23. Given this four-fold approach to reduction of family legal aid costs, family legal aid in

New Zealand after July 2012 may well be fiscally atrophied. “Fit for Purpose Model?” – The Fixed Low Fee Pyramid Family Court Reform 24. The fixed fee funding “pyramid” model on page 8 of the Consultation paper, is the heart

of the bulk funding model. Is it fit for purpose? 25. Parallel to fixed fees, the Family Court is the subject of a reform process. One aim of

that reform is potential restructuring of the Family Court – its jurisdiction, and gatekeeping to the Court. One future scenario is that access to the Family Court may be more limited with “complex cases” being its norm.

                                                       5 Lower than the lowest current charge out rate for legal aid providers in Family Court, $106 per hour. 6 The Committee has exercised all care in its analysis of these guidelines, but accepts no responsibility for any inadvertent errors in calculation. The Committee is small in number, and there is but a small window for due diligence in a 2 week consultation period. This makes complete accuracy impossible.

  

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26. It would be a reasonable presumption that complex cases would include more than “Hague Convention” and “Intellectual Disability proceedings”, as per the legal aid definition of “complex”.

27. The potential for “complex” cases entering Family Court to exceed the bulk funding

model of “5 - 15 per cent” of complex cases at $134 per hour, without capped times is patent.

28. The Committee noted that the Presenters on 8 March 2012, confirmed that “special gate

keeper” roles within legal aid – “senior grants officer”, would determine whether a case “morphed” from fixed fee/ fixed fee plus, to “complex”. It was anticipated that there would be “one per office”. When clarification was sought of what that meant, it was apparent there was one such special gate keeper planned for the Northland Region.

29. Again, it is apparent that there may well be a mismatch between reform models, with

resourcing implications for legal aid. 30. The Committee believes that these issues could invert the funding model pyramid. They

could put complex cases at the broad base of the funding pyramid, as numerically dominant. This may equate to budget blow outs for legal aid, due to a model that may not be “fit for purpose”.

31. Given this potential for dysfunction of the model, the Committee asks whether there

should be a reconsideration of implementation dates for this model (July 2012) and a realignment of any proposed legal aid reforms with the review of the Family Court.

Family Lawyers’ Business Model 32. Much was made of the “car boot” legal aid lawyer as a reason for reform of legal aid.

This “low cost” business model is foreign to the practice of family lawyers.

33. In general, family lawyers have offices with fixed monthly overheads. This applies to solicitors operating in a firm structure, or barristers sole in chambers or offices of their own.

34. These overheads include (a non-exhaustive list):

(a) Leased fully furnished offices; (b) Employed support staff: personal assistants/ legal executives/ law clerks/

researchers; (c) Chattels which are bought or leased: computers, printers, faxes, office furniture,

access to electronic law libraries and/ or ownership of hard copy law texts; (d) Professional fees/ obligations: Practising Certificates, Law Society and

professional association memberships, professional indemnity insurance, other insurance, ACC, accountants fees, continuing education expenses;

  

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(e) Cars and leased parking spaces: to access Courts around Auckland, to visit clients as Court appointed Lawyer for the children or Counsel for the Subject Person, to meet mentally disordered clients in Intensive Care Units or in Community Care facilities;

(f) Consumables: such as mobile phone, land line phone-fax, stationary, internet, electricity, cleaners, petrol etc.

35. Our offices are used to meet with clients, to interview children, to host mediations and

round table settlement meetings. They store the volumes of files that accompany family court cases, produce correspondence, affidavits, submissions, consent memorandum, Orders, and out of court settlement agreements and contracts.

36. It is difficult to reconcile this with “car boot lawyers”. Family Lawyers are not car boot lawyers, and cannot be funded as such.

37. Even for sole practitioners, it would not be unusual for fixed monthly overheads to average $1,600 - $2,000 per week. The costs for firms would be higher.

38. Private charge out rates reflect this. Legal aid rates at $105 per hour do not.

39. In the Committee’s view, the low fees combined with a capped number of hours do not

allow family lawyers to operate as competent professionals meeting the professional and ethical standards of best practice. Nor do they allow family lawyers to meet the reasonable needs of clients in a litigation process.

40. The Committee considers that this “consultative reform process” has not evaluated sample business models, to ensure that this funding model is “fit for the purpose” of family law professional practice.

41. The fixed fee model appears predicated on an expectation that family lawyers will subsidise the provision of a legal aid services even more so than previously. A risk that this model will have to carry is that there may be insufficient providers for new cases after July 2012, if the new model progresses given the mismatch between funding model and business model.

“Fixed Low Fees and Quality Assurance” – Meeting the Bar? 42. A purpose of the fixed fee funding model for family legal aid is to “improve the quality of

service”.7 It is difficult to reconcile this objective with capped time at a low rate, against the background of extensive professional and ethical obligations of “best practice”.

43. Lawyers have professional service/ standards obligations under the following:

                                                       7 “Fixed Family Fees Framework” Proposals for Change – MOJ ADLSI Presentation 8 March 2012 – slide 3.

  

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(a) Lawyers and Conveyancers Act 2006 (Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008;

(b) As Officers of the Court; (c) Under the specific statutory provisions and rules8 relevant to the jurisdiction of the

Family Court; (d) Family Court Practice Notes; (e) Legal services agency contractual quality assurance framework; (f) “Guidelines for Mental Health Roster” (See Appendix D).

44. A breach of these standards can result in a complaint to the Law Society and/ or Legal

Services Agency, with disciplinary consequences. 45. In order to meet the “high bar” set in these standards, our practice as family lawyers

needs to reflect this. It is doubtful in the Committee’s view, that this fixed fee funding model supports this. It under resources lawyers and makes professional standards a cost that the lawyer meets without funding in order to observe best practice.

46. A risk this model carries is that there may be insufficient providers for new cases after

July 2012, given the mismatch between funding model and professional standards family lawyers are obligated to meet.

“Complex Cases” – Fiscal Determinism vs Reality 47. The Fixed Fee Pyramid determines most family matters via “Bulk Classification” are “not

complex” for funding purposes.

48. Fiscal imperatives determine status as “complex cases” under this model, with nominal title of “legally complex” as status at the narrowest point of the funding pyramid model.

49. The Committee must draw this conclusion, as “fixed fee/ fixed fee+” status makes “not

complex” a presumption in the following substantive areas of family law: (a) Children; (b) Mentally ill and incapacitated; (c) Victims of domestic violence, (d) Children, whose families the state regards as so dysfunctional, as to be in need

of care and protection. (e) Relationship Property matters.

50. Many lawyers, legal and academic commentators and other professionals who are

involved in the Family Court litigation process would be surprised to be told these areas were legally “not complex”, let alone simple matters to deal with in any litigation model.

                                                       8 For example, s 8 Family Proceedings Act 1980 – Duty of legal advisers to promote conciliation and reconciliation is but one.

  

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51. The only “as of right” legally complex cases are Hague Convention and and Intellectual Disability proceedings.

52. Under this model the fiscal presumption of “lack of complexity” will require rebuttal. The

gate keeper for determining status is a “senior case officer”. One such officer is intended for the Northland – Auckland region.

53. The Committee (as evidenced in its detailed answers to the Consultation Questions

below), questions the basis of “non-complex” status of 85 - 95 per cent of family cases, given the fiscally driven basis of this presumption.

54. The Committee queries the reality of such determinism, given the complex reality of legal practice when dealing with vulnerable children and adults. For clarity, these are Children who are subject to CYPF Act, COCA or DV Act proceedings, and adults who are parties to DV Act, Mental Health Act, or PPPR Act.9

55. The complexity is centred on both the law (domestic law and international obligations), and the vulnerability of these groups. The Committee queries how safe this fiscally driven definition of complexity is, given the patent complexities presented in these areas of family law.

56. The specialist nature of “vulnerable person” family law practice, the multi-disciplinary involvement in “vulnerable person” cases,10 and need for testing of expert opinion and risk assessment make this area complex of its own right.

57. The Committee queries how Property (Relationship) Act 1976 matters could be regarded

as legally “not complex”, given the difficulties posed by trusts (s 44C), companies (s 44F), economic disparity (s 15), determining whether a relationship is a qualifying relationship or not (s 2A - 2E), the requirement for providing comprehensive fully informed independent legal advice as part of certification of s 21 Agreements, and the plethora of thorny and complex legal issues that make up this area of practice.

58. The specialist nature and expertise (property, trust, and company law intersecting), the commissioning and testing of expert accounting/ forensic evidence, clearly makes this a complex area of law.

59. The Committee’s detailed submissions in answer to the questions below will “flesh” this

out further.

                                                       9 Care of Children Act 2004 “COCA”, Domestic Violence Act 1996 “DV Act”; Children, Young Persons and Their Families Act 1989 “CYPF Act”; Mental Health (Compulsory Assessment and Treatment) Act 1992 “Mental Health Act”; Protection of Personal and Property Rights Act 1998 “PPPR Act” 10 Psychologists, psychiatrists, social workers, Police, Refuge, Statutory Programme Providers for domestic violence support services.

  

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QUESTIONS & ANSWERS

1. What do you think about the modified proceeding schedules? Is the arrangement of the activities practical? If not, please provide reasons.

2. The Committee has a number of concerns about the modified proceeding schedules.

The arrangement of the activities is often not “practical”. 3. Due to the unreasonably short time frame for response, the Committee is only able to

selectively respond to this question. The Committee will focus on four substantive areas of the Family Court jurisdiction:

Domestic Violence Act 1995 Care of Children Act 2004 Property (Relationships) Act 1976 Children, Young Persons and their Families Act 1989

4. The Committee reserves a right to further submit on these four areas, and to respond to

all guideline areas affected in the future. Domestic Violence Act 1995 5. The modified proceedings schedules themselves create issues due to notable

omissions. 6. Whilst there is minimal overall change to the tasks in the modified domestic violence

schedules from that in the current stepped system, there are significant omissions such as the following activities/ categories:

(a) No pre-hearing category; (b) No allocation for attending Judicial conferences (of which there can be many);

and (c) No time allocated for attendances in respect of the serving of documents (legally

important, as Protection Orders do not become active until served on respondents).

7. The tasks listed at the application stage refer only to one Registrar’s List when often

there may be multiple Registrar’s Lists/ Reviews in a matter. There is no allocation for the time taken to attend to second and/ or subsequent Registrar’s review. Given attendances at a Registrar’s review can take a minimum of an hour this would be a significant amount of time that cannot be accounted for in the modified schedules.

  

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8. These omissions are “not practical”, given our obligations as officers of the Court to attend as the Court directs, and our professional obligations to our clients as their agents in Court proceedings, and to statutory requirements.

9. A Case Study: Registrars Lists: It is proposed that a fixed fee of $570.00 includes all

Registrars Review attendances. On average there are between two to four Registrars Lists. At the hourly rate of $105.00, the portion of the fixed fee for attendances for Registrar’s Reviews alone would account for between $210.00 - $420.00 of the fixed fee. Amendments to grant would regularly be required to cover all the relevant attendances necessary. This is not practical.

10. Dealing with vulnerable distressed abused parties is time consuming. This model, with

reduced time for stages is not practical to accommodate the needs of those vulnerable parties, or to liaise with multiple agencies necessary to provide the most appropriate evidence to the Court (Doctors, Police, CYF, Anger Management Programme Providers, Official Information Act disclosure processes etc). Given this, the modified proceeding schedules (reduced as they are in time) are also not practical.

11. The rates and the fixed fees proposed for the proceedings are clearly a major issue.

This feeds into “practicality”, as cuts of between 10 - 70 per cent to time and fees make providing legal services entirely impractical. The Committee notes that 35 per cent is an average time reduction.11 Please refer to the Introduction (above), for reference to “complexity”, “fit for purpose” – with respect to quality assurance and professional standards, and business model incompatibility. Please refer to the analysis of DV Act guidelines (current and proposed) in Appendix B.

12. The Committee expresses its concerns about these significant and fixed reductions of time, making the modified proceeding schedules not practical.

13. The Committee queries the suitability of this complex area for fixed fees regime. Property (Relationships) Act 1976 14. The modified proceedings schedules themselves create significant issues for a number

of reasons in relationship property matters. They are not practical, as time allocations do not reflect the work required to complete each step competently and professionally.

15. Pre-proceedings are woefully inadequate in allocation of time at 3 hours. Initial

instructions, negotiation, initial correspondence, settlement correspondence and discovery of financial and property matters occurs at this stage also. This cannot be completed in 3 hours. It is not practical.

                                                       11 The Committee acknowledges that there are two isolated increases in fees in the new proposal. This must be balanced against omissions of activities.

  

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16. This process, plus the drafting of a s 21 settlement agreement (contract) and providing fully informed independent legal advice (as statutorily mandated), cannot be complete in 1.3 hours, for $140 (a 35 per cent reduction in time.) Undertaking this process in 1.3 hours is a clear compromise of lawyer’s professional and statutory obligations. It is not practical.

17. By the time the decision has been made to file an application to the Family Court attempts to negotiate between the parties have proved fruitless hence the decision to file proceedings.

18. The documents required when filing an application under the Property (Relationships) Act (“PRA”) are extensive and significant. Note that TWO (2) affidavits are required.

19. It is very important at the outset to have the documentation as full and comprehensive as possible prior to filing. Therefore, considerable time with the client is necessary to draft and finalise affidavits and to obtain relevant supporting documentation (which can, by way of example, include property valuations, business valuations, bank account details, superannuation details, values for other significant assets). Ensuring these documents are full and complete can go a long way towards assisting in the event that settlement is a possibility and a speedy resolution of the matters is at issue.

20. The first step therefore is the proper taking of instructions, the preparation of

documentation, filing, service and the perusal of the Respondents own affidavits (note the Respondent is also required to file an affidavit of assets and liabilities together with a narrative affidavit). If these documents are full and comprehensive, some considerable time is involved in perusing and absorbing the information provided.

21. This involves further consultation and liaison with the client before any decision can be made as to whether the next step is to suggest an Issues Conference or whether more information is required.

22. This process is lengthy, extensive and takes a considerable amount of time.

23. Including preparation of interlocutory applications and pre-trial conference memoranda in this particular activity is inappropriate. This is a step all of its own and may not always be necessary.

24. A line needs to be drawn between the activities described above and the next steps which could be either an interlocutory application for discovery, interrogatories etc and the resulting judicial conference (Issues Conference requiring a memorandum to be drafted) or the second step could be to proceed directly to a settlement conference.

  

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Case Study – New Step 1 25. The Committee notes that the removal of step 1(b) and incorporating it into step 1(a),

results in a reduction of time by between 194 - 232 per cent, and reduction of fees by 210 - 232 per cent for the same activities. There is no decimal point missing here. The implications for practicality are so obvious they do not need to be stated. Please refer to Appendix B.

26. Activity – Settlement Conference 27. The activities referred to at the settlement conference step are appropriate. Settlement

conferences are usually scheduled for 1½ hours. If extra time is needed for additional factors (self-represented litigants, mentally ill or intellectually disabled clients or those where English is a second language) a request needs to be made to the Court for additional time.

28. The proposed activity does not include briefing the client for a settlement conference which is a very important part of the activity.

29. The proposed fee does not provide enough time for briefing the client and other preparation prior to the settlement conference if the conference is scheduled for 1½ hours only. Whatever period of time is scheduled for a settlement conference the same time is involved in the preparation of it which is estimated as being up to 3 hours preparation for any settlement conference of 1.5 hours duration. Given this, the modified proceeding schedules are not practical.

30. Activity – Memorandum of Consent – 35 per cent reduction in time 31. The activities provided for at the memorandum of consent do not take into consideration

the requirements when consenting to Orders under the Property (Relationships) Act 1976 and the necessity of a memorandum of counsel.

32. A memorandum of counsel and draft orders are both required to be prepared and filed and are not necessarily straightforward. They would require more time than would appear to have been allowed for under this activity. Given this, the modified proceeding schedules are not practical.

33. Activity – Pre-Hearing Matters – 19.6 per cent reduction in time 34. The activities are appropriate however there is an implication that there will be co-

operation between parties. For all these particular matters the very fact that the parties are litigating the matter suggests that there is a lack of co-operation which may require more time than anticipated. The modified proceeding schedule will likely not be practical in reality.

  

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35. Activity – Pre-Hearing Matters

36. It must be remembered that with every hearing (interlocutory or substantive) there is a

necessity to brief the client prior to the hearing. There is also a necessity for preparing cross examination as well as submissions and often there may be research that needs to be attended to. Given this, the modified proceeding schedules are not practical.

37. Activity – Defended Hearing 38. Preparation is approved at the rate of payment per anticipated hour of hearing time

whether a hearing has been schedule for 2 or 6 or more hours. Often the same amount of preparation is necessary whatever the length of hearing. To limit preparation for such an important part of any proceeding is to short change the client who is entitled to the best possible professional service. Given this, the modified proceeding schedules are not practical.

39. Activity – Review of Judgement – 18 per cent reduction in time 40. COMMENTS 41. The activities in some instances are not appropriate and need to be broken up further.

Proceedings under the Property (Relationships) Act 1976 are often complex and can be very difficult. The activities prescribed do not take into consideration additional matters which are very often involved in proceedings under that Act, for example:

Where there is a dispute over the duration of the relationship Property outside New Zealand When separate property becomes relationship property Homesteads Exceptions to equal sharing Economic disparity arguments Sustenance or diminution of separate property Contributions Compensation for contributions or dissipation post separation Where Trusts and companies are involved

42. These are frequent. Any of the above can be part of Property (Relationships) Act 1976

proceedings and of themselves can involve a whole separate application where there is seldom any possibility of a reduction for efficiencies. The modified proceeding schedules are not practical, given this.

43. The Committee queries the suitability of this complex area for fixed fees regime.

  

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44. Reductions in time – overall: All steps are reduced in time. The lowest reduction is 10 per cent. This is isolated. The highest reduction is 232 per cent. An average reduction is 35 per cent. Practitioners are still required to do the same work or more. The Committee expresses its concerns about these significant and fixed reductions of time, making the modified proceeding schedules not practical.

Care of Children Act 2004 45. The modified proceedings schedules themselves create issues due to front loading of

tasks into steps which are already too full. For example:

(a) Step 1: preparing for hearing – formal proof. Only 1.3 hours are allocated for preparation compared with 2 hours currently – 35 per cent time reduction. On top of this, the reduced time must also cover reporting to the client, the Ministry of Justice and completing invoicing. A formal proof hearing requires:

(i) Perusal of the filed evidence; (ii) Oral and written submissions for formal proof; (iii) Preparation for any required leading of evidence from client; (iv) Preparation for the respondent appearing, and the matter converting into

a defended hearing (basic cross examination and submissions for defended hearing prepared);

(v) Briefing your client Given this time reduction, the modified proceeding schedules are not practical.

(b) Step 1: preparing consent memorandum: only 1. 3 hours are allocated compared

with 2 hours – a 35 per cent time reduction. On top of this, the reduced time must also cover reporting to the client, the Ministry of Justice and completing invoicing. Consent memorandums require:

(i) Negotiation time to complete; (ii) Drafting the memorandum; (iii) Liaising with counsel and parties to reach agreement on the specific

wording of terms contained; (iv) Correspondence to the Court; (v) Memorandum of Counsel additionally to explain the consent

memorandum to the Presiding Judge; (vi) Drafting order for sealing (vii) Liaising with the Court to ensure the above is provided to the Presiding

Judge, and that the consent memorandum/ Orders are approved; (viii) Liaising with the Court to ensure that Sealed Orders are provided by

return.

Given this time reduction, the modified proceeding schedules are not practical.

  

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46. The Committee references cuts to time for existing tasks on all steps. We refer to Appendix B as evidence of this.

47. The limited time available to this small group of committee members limits the scope of

specific submissions here. However, the same exercise comparing each “time reduced step” has the same effect, that is, too much to do, and not enough time to do it in.

48. The capped fixed time available as proposed for the proceedings is clearly a major

issue. This feeds into “practicality”, as cuts of between 20 - 65 per cent to time providing legal services is entirely impractical.

49. It needs to be remembered that children are highly vulnerable. They are often subject to enormous pressures – trapped in the middle when their parents separate. They can face hugely conflicted adult issue focused parents. Abuse, neglect and alienation can further come into the mix. Parents are fragile, distraught, and angry-violent at separation. Their life has fallen apart. Psychologist report writers, social workers and other specialists add a further layer of complexity in proceedings. All these complexities, in addition to legal complexities are focused on the particular child, in their particular circumstances. Given all this, cuts in time of 20 - 65 per cent could endanger the best interest and welfare of vulnerable children.

50. Added to this, CYPF involvement (informally by notification or otherwise) and Domestic

Violence issues can often arise in the same case, along with latent or diagnosed mental health issues on the part of one or both parties. Complexity of concerns is the norm, not the exception.

51. Further, please refer to the Introduction (above), for reference to “complexity”, and “fit for purpose” – with respect to quality assurance and professional standards, and business model incompatibility.

52. The Committee queries the suitability of this complex area for fixed fees regime, and expresses grave concern about significant and fixed reductions in time to deal with complexity, making the modified proceeding schedules not practical.

Children, Young Persons, and Their Families Act 1989

53. CYPF cases are public law – and involve the potential removal of children and young

people from families, due to care and protection concerns. These families are the most dysfunctional, these children and young persons the most vulnerable. Multiple agencies, professionals and interventions are an intrinsic part of this complexity.

  

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54. Added to this, is the complexity of CYPF Act, and obligations to children under this Act and under international conventions ratified by this nation.12

55. Members of this Committee have considerable practice experience and observe the

following comments of Justice Anderson in Burger-Ringer v Burger-Ringer [1995] NZFLR 895, at 903 in relation to care and contact proceedings hold just as true for care and protection proceedings –

“It is notorious that parties’ to custody battles are frequently intractable, emotionally labile and lacking in common sense or perspective. … How the amount of time needed for counsel satisfactorily to complete his or her task can be predicated in advance is hard to envisage.”

56. The Committee notes that care and protection proceedings have even more at stake for

the child than care and contact proceedings. The child the subject of care and protection proceedings can have family life disrupted, dislocated, or irrevocably disjunctured by removal. Decisions to remove can be arbitrary and intrusive and contrary to law. It is essential for children in this country to have proper and effective representation of parents in order for better quality decision-making to be made in respect of them.

57. Competing obligations to highly vulnerable children are pointed. It is an understatement to say this area is complex in all possible ways. The complexities are illustrated by Appendix C, CYPF scenarios.

58. Fiscal rationing/ reduction of time for such complex matters is of grave concern for the

Committee. We refer to our comparison of guideline activities, time and fees for the current and proposed new fixed fee regime. See Appendix B.

59. Shortfalls for family law legal aid providers in allowable times on activities and tasks in CYPF proceedings under the proposed scheme range between 23 per cent and 66 per cent of the time available in the current guideline hours for the same activities/ tasks.

60. Given these time reduction, the modified proceeding schedules are not “practical”.

                                                       12 See summarised below:

CYPF Act long title: “An Act to reform the law relating to children and young persons who are in need of care and protection …, in particular, -- (a) to advance the wellbeing of families and the wellbeing of children and young persons as members of families, … (b) to make provision for families, … to receive assistance in caring for their children and young persons: (c) to make provision for matters relating to children and young persons … to be resolved, wherever possible, by their family, … .”

s 6 - welfare and best interests of the child as the first and paramount consideration s 5(d) the views of the child United Nations Convention on the Rights of the Child (“UNCROC”). Articles 3 (welfare and best interests)

and 12 (views of the child) UNCROC are of particular relevance to CYPF proceedings.

  

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Judicial Conferences, Registrar’s Lists, Formal Proof, Interlocutory and Substantive Hearings

61. The Committee cannot identify any rational basis for treating differently the time/ fee

allowable for the same activities/ tasks performed by family legal aid providers across the course of CYPF proceedings. They are simply not “practical”.

62. The Committee notes in this regard that judicial conferences are separated out as a

stand-alone activity in the modified proceeding schedule. However, they also appear as an identified task within the first/ second/ third and subsequent proceedings activities. This is in contrast to them not being an identified task in the pre-hearing matters activities.

63. The Committee is of the view that all judicial conferences involve court attendances by

counsel, the drafting of and filing of memoranda in preparation for attendance, and the making of oral and written submissions. Directions and orders can be made at judicial conferences, albeit on a different basis to those made at defended or non-defended hearings. However, there is no justification for taking a different approach to calculating hours/ fees for the same activity/ task just because it takes place at a different stage in the proceedings. The Committee recommends remuneration on the basis of actual time for preparation and attendance at an appropriate fee rate for judicial conferences.

64. Registrar’s list submissions vary in number across the proceedings. It is not possible to say at the outset how many Registrar list attendances will occur. The Committee recommends that Registrar list attendances be remunerated on the basis of actual time and preparation. This should be at the same rate as judicial conferences as counsel is making submissions to the Court.

65. Ex parte, formal proof, interlocutory, interim and substantive hearings are all “hearings” for which actual time and preparation ought to be the remuneration basis. The Committee cannot see any rationale or justification for treating these differently to other court work done by counsel in court.

Mediation Conferences/ Professionals Meetings/ Round-table Conferences/ Family Group Conferences

66. The Committee cannot identify any rationale or justification for flat-rating preparation for

mediation conferences but not attendance time. A pro-rata preparation to attendance remuneration basis is more reasonable.

67. The Committee cannot identify any rationale or justification for flat-rating roundtable/

professional conferences. Actual time and preparation needs to be remunerated on the same basis as mediations. Professionals meetings and roundtable conferences are opportunities for counsel and parties to settle issues without going to court and are

  

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places where consent memoranda can be agreed to and filed for orders/ directions in chambers or in court. To flat-rate these is to dis-incentivise counsel to choose an out of court settlement forum, increasing the amount of time the court is required to deal with cases.

Family Group Conferences and Representation Rights of Parties

68. The modified proceedings schedules will have natural justice implications because they

will have the effect of excluding or restricting the grant of legal aid that goes to a client’s participation and process rights and their right to receive effective representation from their lawyer. Two examples are: (a) First: s 70 requirement for a Family Group Conference (“FGC”) to be held prior to

an application for a s 67 declaration being made; (b) Second: s 10 duties on the court and counsel.

69. There is no specific grant of aid for these. 70. The FGC process and participation/ representation rights of a party to proceedings are

mandated by s 70 and must comply with s 21(b)(iii), s 22(i), and s 26 of the CYPF Act, which govern the participation rights accorded to parties in the FGC process.

71. In practice it falls to counsel to fully and properly inform a client about FGC processes and the consequences of decisions made at the FGC. The Committee is concerned that an appropriate grant of legal aid must be available for lawyers representing legally aided parties in these processes.

72. A reduced time step 1 (32.5 per cent time reduction) does not cover the taking of initial instructions, identification of factual issues, or advising the client, let alone the preparation and filing and service of court documents, or any of the remaining tasks in the first proceedings activities schedule.

73. Section 10(1) and (2) duties of the Family Court and Lawyer for Child are in practice

rarely observed, if ever, by the Family Court or Lawyer for Child. It falls to counsel to ensure a client is fully and properly informed about the nature and requirements of orders, provisions for variations, and the existence of rights of appeal or other remedial rights.

74. If counsel is not remunerated for the activities identified above, there will undoubtedly be flow-on costs for the Lawyer for Child role when it comes under the umbrella of legal aid, and Judge time. That will not achieve efficiencies

  

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75. The capped fixed time available as proposed for the proceedings is clearly a major issue. This feeds into “practicality”, as cuts of between 23 per cent and 66 per cent to time providing legal services is entirely impractical. Please refer to the Introduction (above), for reference to “complexity”, “fit for purpose” – with respect to quality assurance and professional standards, and business model incompatibility.

76. The Committee queries the suitability of this complex area for fixed fees regime, and expresses grave concern about significant and fixed reductions in time to deal with complexity, making the modified proceeding schedules not practical.

2. What are your views on treating certain activities as being repeatable (for example

Judicial Conferences) and others that are not (for example Additional Factors)? 77. It is entirely appropriate for Judicial Conference, Registrar’s lists, and the multitude of

other Judge directed repeating fixtures to be funded appropriately, without reduction for “efficiencies”, and at an appropriate rate.

78. It is not appropriate to discriminate arbitrarily between “activities” which will similarly

repeat throughout a case. “Additional Factors” are a key example.

“One–off Additional Factors?” 79. What are additional factors? In the Committee’s view, they are (but not limited to):

(a) Mental illness/ intellectual disability (b) ESOL – interpreter/ translator (c) Multiple parties/ children (d) Multiple agencies (e) High conflict (f) Alienation (g) Self-represented litigants

80. Additional factors are a misnomer. They are intrinsic factors, part and parcel of

proceedings, intimately linked to the parties or the child. 81. They are not “one-off”. They do not appear in step one, and vanish in step 2. They likely

permeate proceedings from start to finish. 82. To treat them as if they are a “one off” isolated “additional factor”

is unrealistic, arbitrary and fiscally focused. 83. It is artificial to limit this to a "one off" 2 hour financial adjustment.

  

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84. It puts family practitioners in the invidious position of:

(a) Subsiding legal aid by: paying for the services of an interpreter out of their own pocket or relying on staff/ family friends. This is not optimal, for reasons of bias/ ignorance of the law and inability to translate adequately legal concepts and consequences;

(b) Subsidising legal aid by: carrying the ongoing time burden of managing mental

health issues (discrimination vs risk dynamics which enter every aspect of proceedings, flavouring them in their entirety). This is particularly pertinent to mentally disordered and incapacitated parties in PPPR and mental health cases. The impact of this on COCA, CYPF and DVA cases matters equally;

(c) Subsidising legal aid by: carrying the ongoing time burden of dealing with a self-

represented and potentially vexatious litigant;

(d) Subsidising legal aid by: not charging for the inevitable additional work through a file which is permeated by high conflict and alienation. These are psychologically complex processes, which dominate both counsel and Court time;

(e) Subsidising legal aid by: not charging for the inevitable additional work through a

file which is permeated by multiple parties/ children, and/ or multiple agencies. See a “standard CYPF scenario” in Appendix C as an illustration of this. This is not limited to CYPF cases, and runs through many cases which straddle domestic violence, parenting matters, and care and protection concerns, that is, vulnerable adults and children cases. This particularly applies to mentally disordered and incapacitated parties, PPPR, and mental health cases.

85. None of this is acceptable, professional or desirable. “Additional factors” need to be recognised for what they are, and warrant lifting a case into the complex category and out of any fixed fee model.

  

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3. Are fixed fees appropriate for the activity they cover? Are the values for second or subsequent matters reasonable? Please elaborate.

86. No. Fixed Fees are not appropriate for the activity they cover. Neither are the values for

second or subsequent matters reasonable. Due to the unreasonably short time frame for response, the committee is able only to

selectively respond to this question. The Committee will focus on three substantive areas of the Family Court jurisdiction:

Domestic Violence Act 1995 Care of Children Act 2004 Property (Relationships) Act 1976

Domestic Violence Act 1995 87. No. The fixed fees are not appropriate for the activities they cover. They do not account

for the following factors.

88. The current rates of payment to legal aid providers are already below market rate and it is now proposed that they should be further reduced. The new proposed flat rate of $105 per hour is lower than even the most junior current legal aid rate for Family Court practitioners ($106 per hour), and well below that for the most senior practitioners at $134 per hour.

89. The hours provided in the current stepped approach are often already inadequate for the

actual time involved in these types of proceedings. What is now proposed is that these hours should be further reduced, more work added, and less remuneration paid. This has been discussed in answers to question 1 (above).

90. The fixed fee framework reduces fees by dramatic percentages, for the activities they

are intended to cover. The reduction range for “first applications” is from 50 per cent - 22 per cent – exceeding the target 10 per cent costs reductions sought by the Fixed Fee proposals.

91. The Committee’s view is that it is difficult to see how such low reduced fixed fees could be appropriate for the activities they cover.

92. In domestic violence proceedings the clients are often in crisis and their matter must be attended to and progressed urgently. Such applications cannot be attended to in a cursory manner. This is reflected in the Domestic Violence Rules 1996 whereby every without notice application for a protection order or a property order, or both, must be accompanied by a certificate by the lawyer certifying he/ she has “made reasonable enquiries of the applicant….”

  

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93. The proposed fixed fee structure does not recognise or reflect the amount of work required to appropriately address the issues arising in domestic violence cases.

(a) For example it is noted that the tasks now included, in what would currently be

referred to under “step 1”, have been added to and it is proposed that the reduced fee of $570.00 should also include “Liaising with third parties – Police, Doctor, hospital, witnesses, experts, programme issues”.

(b) This task alone is often a time-consuming but none-the-less vital part of the

process in domestic violence proceedings however there is no recognition of the additional time required for such a task(s). Conversely, this task has been added whilst the overall rate has been reduced. It is proposed that there should be an allocation of up to two hours for attendances under such tasks.

94. Furthermore, it is of great concern to note that it is proposed that non-lawyer costs and

agents’ fees are to be included in the fees paid to the provider (that is, $570.00 for Application(s)/ Order(s) – First only proceedings).

95. From time-to-time, an agent is required to be appointed such as when there are court

dates for different matters set down at the same time in different courts. The scheduling of court fixtures are, for the most part, outside the practitioner’s control.

96. The practitioner requires additional time to properly brief an agent and an agent needs

time to become familiar with a file before they appear on another practitioner’s behalf. There is also the necessity for the agent to report to the practitioner after the appearance and further additional attendances may be necessary to fulfil this requirement. There is no recognition of the additional time required in these situations if the proposed fee is to include agents’ fees. It is proposed there should be an allowance up to two hours for these further attendances.

97. “Additional factors” such as self-represented litigants who are party to proceedings, or

legally aided parties who suffer from mental illness/ intellectual disability or who require an interpreter/ translator generate large increases in time. The fixed flat fee under the new hourly rate of $105.00 equates approximately to 1.3 hours for this “task”. This is entirely inadequate. The Committee refers to its submissions in answer to question 2 (above).

98. The proposed flat fee of $140.00 for preparation for a formal proof hearing provides for

just over one hour preparation time. Whilst it is anticipated in most cases the respondent will not present at a formal proof hearing, this does not preclude the preparation of cross-examination should the respondent attend and the drafting of and filing of memoranda, submissions, and attendances upon the client prior to a formal proof hearing. The proposed flat fee will only go part way to remunerating practitioners for the time taken to prepare for such hearings.

  

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99. Provider experience level is not taken into account given it is proposed junior and senior practitioners are to be paid the same amount. There is no recognition of skill level and therefore little, if any, incentive for senior practitioners to undertake this important area of family work.

100. The Committee repeats its submission that fixed fees are inappropriate for complex

matters such as domestic violence, and refers to its responses under question 1 (above).

Are the values for second or subsequent matters reasonable? Please elaborate. 101. No. It is unclear whether the Ministry of Justice is referring to second or subsequent

proceedings such as, for example, the combination of domestic violence and care of children proceedings or second or subsequent domestic violence applications such as occupancy/ tenancy, ancillary and/ or furniture orders.

102. For second and subsequent proceedings, fees are reduced by a dramatic 64 per cent.

This bears no correlation to any purported “efficiencies”. Regardless, even if there are efficiencies, which it is argued there are none at worst and minimal at best, there is no analysis as to why a 64 per cent fee reduction and 53 per cent time reduction is appropriate.

103. It is often the case that either the combining of proceedings or the making of second or subsequent domestic violence proceedings demands more work rather than less. Furthermore second and subsequent applications are not always made at the outset and the proposed “efficiencies” would be even less likely to apply in that scenario.

Property (Relationships) Act 1976 104. No. The fixed fees are not appropriate for the activities they cover. 105. The reduction in fees in relationship property activities in the fixed fee structure is

dramatic.

(a) For second or subsequent matters – 69 per cent reduction in fees, for 61 per cent reduction in time. Applications under this Act are different, with different legal tests and principles being applied. There are no “60 per cent efficiencies”.

(b) For other matters, fees have decreased by a range of 48 per cent - 22 per cent.

This is clearly in excess of the 10 per cent purported goal for reform.

(c) In one instance, the collapsing of step 1(b) has resulted in step 1(a) being decreased 210 per cent in fees, and 240 per cent in time. There is no possibility of activities being achieved at this reduced fee rate.

106. Schedule 2 of the District Court Rules 2009 refers to an appropriate daily recovery rate

of $1,500. On the fees that have been set out under this proposal, those practitioners

  

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doing legal aid work will not recover an amount that has been found to be acceptable and is prescribed by the Rules.

107. Legal practitioners operate on the basis of an hourly rate broken up into ten six-minute

units in each hour. Office and accounting systems are designed to operate in this fashion.

108. The fixed fee proposal ignores this basic accounting detail and seems to suggest that legal practitioners ignore the amount of time they spend on any matter and accept a lump sum payment in lieu.

109. $105 per hour is a rate of pay below what junior practitioners currently charge on legal

aid rates. It will not attract or retain the senior practitioners who are experienced enough to undertake relationship property work.

110. In answering question 1 (above), the Committee has already outlined that the hours and fees available are woefully inadequate for the extensive work which is required for any application under the Property (Relationships) Act (“PRA”).

111. The pre-proceedings settlement activity negotiation of settlement in a PRA matter is appallingly inadequate for PRA matters. Considerable time needs to be spent on taking instructions, determining the property for division and obtaining the requisite valuations. It should not be assumed that because a party has applied for legal aid that they have little or no assets for division. Often the assets are tied up in Trusts, businesses, investments and so forth and it is not until a resolution is achieved that capital can be freed up.

112. Negotiation would often lead to a s 21 Agreement. The activity s 21 Agreement provides

for a fee of $140 for drafting and certifying a s 21 Agreement. 113. The drafting of a s 21 Agreement is a complex matter. The certification required by the

practitioner providing the independent legal advice is a responsibility that cannot be taken lightly. To suggest that for a fee of $140 an agreement could be drafted and certified is to make a mockery of the requirement for independent legal advice and of the requirement to certify that the outcome of the agreement is appropriate in the circumstances and according to law.

114. As practitioners we are all aware of the cases that have proceeded through the Court and the Agreements that have been overturned because of the inadequacy of the independent legal advice requirement. Practitioners should not be expected to put professionalism aside and jeopardise the ability to practise by skimping over such an important function of our role.

115. Practitioners are frequently dealing with situations where the other party is self

represented, one or other of the parties suffers from a mental illness or an intellectual

  

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disability or they need assistance with interpretation because English is their second language.

116. This is a situation that runs throughout the proceedings and a one off payment does not

adequately compensate for the additional hours required to be spent with such a client to explain the law, to ensure they understand what is happening, to draft documents that correctly set out their position and to ensure that at any hearing (whether it be Registrar’s Review, Judicial Conference, Issues Conference, Settlement Conference, Interlocutory or Substantive Hearing) they understand what is happening and the consequences of what it happening.

Are the values for second or subsequent matters reasonable? Please elaborate. 117. No. If the question relating to second or subsequent matters means applications for say,

compensation for economic disparity or that a party’s claim to relationship property has been defeated because the property has been transferred to a trust, the suggested reductions for efficiencies indicate a lack of understanding of what these applications involve. Each of these matters require applications in their own right and to suggest that the affidavits filed setting out property can be part of these applications is to completely misunderstand the law and the purpose of these other sections of the Act.

118. It is the Committee’s unanimous view that the fixed fees are inappropriate for Property

(Relationships) Act matters. They are legally complex. The allocation of time and fees does not come close to covering the requisite time (and seniority of counsel) to represent a party competently and to a standard of professional competence require by law, ethics and professional guidelines. The Committee repeats that all Property (Relationships) Act work should start with a presumption of complexity, and be remunerated and have adequate time allocated accordingly.

Care of Children Act 2004

119. No. The fixed fees are not appropriate for the activities they cover. 120. The reductions in fees in child related activities in the fixed fee structure are significant,

and undercut competent practitioners’ ability to complete the activities in each step. The ranges in fee reductions are:

(a) Second and subsequent: 65 per cent fees reduction and 72 per cent time

reduction;

(b) The values for second or subsequent matters are totally inappropriate due to the fact that in many instances filing contemporaneous proceedings does not result in a reduction of time spent, in fact in many instances the time spent increases;

(c) A range of 47 per cent - 20 per cent fees reductions for other matters.

121. This reduction is over the purported goal of 10 per cent for reform.

  

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122. The $105 per hour rate proposed is not realistic. Family lawyer business models are not compatible with this rate. Senior practitioners are unlikely to undertake work well under their private market rate, and under the existing legal aid rate of $135 per hour.

123. An example of fees and activities being incompatible, are parenting applications under the old Step 1 which allowed eight hours. It now allows 5.4 hours to complete the same work. This is unreasonable and unrealistic.

124. The Committee repeats its submission that fixed fees are inappropriate for complex

matters such as Care of Children Act (“COCA”) proceedings with vulnerable children, and references its responses under question 1 (above).

4. Is the allowance for efficiencies re multiple matters a reasonable approach? If not,

please provide reasons. 125. No. It is proposed that multiple applications/ proceedings filed at the same time are to be

remunerated on the basis that the hours able to be charged in relation to the second and subsequent proceedings are reduced substantially in time.

126. The ability to comply with the Lawyers and Conveyancers Act (Lawyers: Conduct and

Client Care) Rules 2008 with regard to the service to be provided to a client by a lawyer for which the lawyer is to be remunerated is challenged by the proposed reduction in time with regard to originating proceedings. The ability to comply in this regard further challenged when an additional reduction in the time prescribed for second and subsequent proceedings is proposed.

127. If a client files “multiple applications” this does not necessarily and/ or automatically render it a “multiple matter”. It simply means that a client has multiple, that is, more than one matter to be dealt with. The factual matrix relating to each proceeding may be, and often is, unique to each proceeding. The proposed framework does not appear to have taken this into account.

128. Whilst instructions may be able to be taken at an initial interview on a number of matters this will simply result in an increase in time spent at that initial attendance, thereby reducing the available and prescribed time for the remaining tasks.

129. It is also proposed that a subsequent proceeding, which is to be added to an existing

grant, will be treated as a second or subsequent proceeding and will attract a reduced fee. A subsequent proceeding per se will be required where there are new and changed, or additional, circumstances, which can often arise from a factual scenario different to that on which the original proceedings receiving the grant is based. The subsequent proceeding may require an originating/ substantive application and will certainly require as much input on all attendances to each task prescribed for the initial proceedings. There is no basis to assume, as a matter of course, that any subsequent proceeding will relate to or rely on the factual matrix within the original proceeding and/

  

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or that the court proceedings filed in respect of the originating application will reduce the time required to be expended on the subsequent proceeding. In all matters, what has preceded the subsequent proceeding, will require analysis and this review will, it can safely be assumed, increase the time required to be expended in relation to the subsequent proceedings.

130. Whilst the factual matrix may, and often is, interlinked where there are multiple

applications (whether filed at the initial stage and/ or subsequently), the principles of law and the tests to be applied to the various applications will differ, for example, under the Care of Children Act and Domestic Violence Act. (a) Care of Children Act 2004 – promotion of counselling and conciliation between

the parties for the best interests and welfare of the child/ ren of the relationship; (b) Domestic Violence Act 1995 – promotion of safety by way of directing counselling

for one party for the protection of the other party and where necessary the child/ ren of the relationship

131. As with the underlying principles and relevant tests to be applied, the requirements

prescribed under the relevant rules pertaining to each Act are required to be added. 5. What are your views on each of the three case levels? “Fixed Low Fee Funding

Model – pyramid” 132. The Committee refers to its submissions on the three case levels in the Introduction

(above). The “fixed fee” funding pyramid is statistically flawed, not fit for purpose, and is likely an inversion of reality. Specifically:

(a) Family Cases are Complex (paragraphs 47 - 59, and answers to questions 1 and

3); (b) Bulk categorisation of 85 - 95 per cent of family cases as “not complex” is fiscally

determined. Fiscal determinism should not define complexity in the face of coal face and legal reality (paragraphs 14 - 19);

(c) The Fixed Fee funding model is not fit for purpose, in reference to: (i) Mismatch with Family Court Reform (paragraphs 24 - 31); (ii) Mismatch with Family Lawyers Business Models (paragraphs 32 - 41); (iii) Mismatch with Quality Assurance and Professional standard obligations

for family law practitioners (paragraphs 42 - 46). 133. The additional cost to practitioners in the administration of having to justify when a case

needs to progress from Fixed Fee to Fixed Fee Plus or Legally Complex is not viable. 134. Given the above, the Committee’s position is that a presumption of complexity is more

appropriate.

  

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Are these distinctions an accurate reflection of the case complexities? 135. No Do the values for the hearing activities reflect the distinctions adequately? If not, why not? 136. No. Please refer to the Committee’s comments in response to question 1 (above) and to

the comparative schedules of current and proposed funding/ time allocations for all hearings at Appendix B.

137. The fixed fee model reduces time and money for an increase in the amount and type of

work required. It is not sustainable without practitioner subsidisation of legal aid. That is not compatible with family lawyer business models.

6. What are your views on the list of amendment criteria? Are there any other factors

that should be taken into account (excluding those listed in the Additional Factors activity in the Schedules)? If so, please provide a list with an explanation.

138. In the Committee’s view, amendment to grant criteria proposed (multiple parties/

children, allegations of sexual abuse, drug/ alcohol use, domestic violence, multiple agencies, high conflict, and alienation) are sound but should not exclude existing criteria, that is, reasonableness. They may be added to existing criteria.

139. The Committee notes that these are all “intrinsic factors” which permeate the entire

case, and are not restricted to “one off steps”. Are there other factors which should be taken into account (excluding those listed in the Additional Factors activity in the Schedules?) 140. Yes. The Committee refers to its answers to question 2, the other intrinsic factors. Self-

represented litigants, mental illness/ intellectual disability, and ESOL interpreter/ translator must be included in this list of amendment to grant criteria for the reasons outlined in that section of the submissions. It artificial and arbitrary, and based largely on fiscal considerations, to exclude these factors from status as amendment to grant criteria.

It is reasonable (to use the current criteria) for an amendment to grant being made on the criteria above? 141. Only in combination with the current criteria of reasonableness, and the addition of other

specific factors as noted in this section.

  

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7. Do you have any views on the approach to non-lawyer and agent fees? If so, what are they?

142. The Committee cannot accept that non-lawyer costs and agent fees will be deducted

from a fixed fee pool of funds for activities under a step. It is preferable that these be treated as a disbursement of actual time, or an amendment to grant. The current proposal is not fiscally or professionally sustainable.

143. It is inevitable that an agent will be required to be appointed as when there are court

dates for different matters set down at the same time in different courts. The scheduling of court fixtures is, for the most part, outside the practitioners’ control. Practitioners are obliged as officers of the Court to attend, or to make arrangements for an agent to attend.

144. The practitioner requires additional time to properly brief an agent and an agent needs

time to become familiar with a file before they appear on another practitioner’s behalf. There is also the necessity for the agent to report to the practitioner after the appearance and further additional attendances may be necessary to fulfil this requirement. There is no recognition of the additional time required in these situations if the proposed fee is to include agents’ fees.

145. It is unclear if “agent” in fact means a lawyer agent or something else. 146. “Agent” could also mean: valuers, actuaries, interpreters, process servers, researchers

etc. Currently, their fees are treated as a disbursement and billed by way of amendment to grant.

147. If these necessary agent’s fees were to be deducted from the fixed fee pool for funding litigation in the Family Court, practitioners would be offering a pro bono service, rather than legal aid. This is unacceptable, and contrary to family lawyers’ business model.

148. “Non lawyer” fees will likely be the project manager, legal executives, law clerks, and so

forth, that help the lead provider on the file. Their time would come out of the same guideline hours. Again, practitioners would effectively be offering a pro bono service, rather than legal aid. This subsidising of legal aid is unacceptable, and contrary to family lawyers’ business model.

  

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8. Is the approach to provider remuneration for re-assignments reasonable? If not, please provide reasons

149. No. The approach to remuneration for reassignments is not reasonable. 150. The only viable approach, in the Committee’s view, is to pay only for ongoing/ future

work from the date of re-assignment.

151. It is a fundamental and necessary task to review and familiarise oneself with a client’s matter when instructions are first received.

152. The review of a file is even more critical when the matter has been on foot for some time

and previous legal counsel has been involved.

153. A re-assignment can be required for any number of reasons, for example, a change in circumstances; a break-down in the lawyer/ client relationship.

154. Knowledge of the matter’s history and of any proceedings prior to commencement of further action is essential to taking the client’s instructions and in assessing what further appropriate action is required. Such a review will, of necessity, require the perusal of and familiarisation with the pleadings filed to date and any correspondence, for which the lawyer acting should be reimbursed.

155. From purely a professional indemnity perspective a full review of the matter at any stage a lawyer commences acting for a client is vital.

156. Further, it is not accepted that duplication of work would occur as a result of such review. To the contrary, upon re-assignment, a full working knowledge of the matter to date would prevent any potential for duplication.

Postscript Every effort has been made to ensure the accuracy of the contents of this submission. However, given the minimal timeframe for consultation, and the expansive breadth of what was required to comprehensively respond to the proposed reforms of family legal aid, inevitably there may be some minor inaccuracies that have been inadvertently overlooked.

APPENDIX A

Hand written notes of key points recorded by Patricia Govender at 8 March meeting between Ministry of Justice representatives and ADLSI Family Law

Committee representatives (and ADLSI Mental Health & Disability Law Committee representatives)

APPENDIX B

Analysis of the current hourly guideline rates/activities in comparison to the

proposed fixed fee model for four areas of legal aid provision:

Care of Children Act Domestic Violence

Children, Young Persons, and their Families Act Relationship Property

 

 

 

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

Care of Children Act Proceedings

Current Scheme ($134/hr ex GST) Reduction in Fees & Time

Proposed Fixed Low Fee Scheme ($105/hr ex GST)

Step 1: Investigate & make/defend app Application(s)/Order(s) - Taking instructions, attending client - Identifying legal & factual issues - Preparing application for Legal Aid - Referral to counselling services - Conducting initial negotiations btw parties - Preparing applications - Serving documents - Receiving minute/orders - Reporting to client - Reporting to & invoicing LA

Parenting orders

8hrs ($1,072) (1) -$502 (2.6hrs) OR (2) -$782 (5.2hrs) = Fees reduced by: (1) 46.83% (2) 72.95% Time reduced by: (1) 32.5% (2) 65%

$570 (5.4hrs) OR $290 (2.8hrs) OR $290 (2.8hrs)

First / only proceedings OR Second proceedings OR Third & Subsequent proceedings

All same as current scheme with amendment: - Preparing application for interim / final order(s), including: - Affidavit(s) in support - Information sheets for Court

- Preparing for hearing - Attending hearing

Formal proof hearing

2hrs ($268) + actual hearing hrs

-$128 (0.7hrs) = 47.77% fee reduction 35% time reduction Hearing time reduced by $28 per hour = 21% fee reduction

$140 (1.3hrs) + actual hearing time @ $53 per ½ hr

Formal Proof Hearing

Same plus: - Reporting to client - Reporting to and invoicing MOJ

- Preparing Consent Memorandum if agmt reached - Seeking approval of the Court

Consent Memorandum

2hrs ($268) -$128 (0.7hrs) = 47.77% fee reduction 35% time reduction

$140 (1.3hrs)

Memorandum of Consent

Same plus: - Reporting to client - Reporting to and invoicing MOJ

- Guidelines hrs exceeded - Each factor clearly identified & justified

Additional factors

2hrs ($268) -$128 (0.7hrs) = 47.77% fee reduction

$140 (1.3hrs)

Additional factors

- Self-represented litigants are party to proceedings - Legally aided person

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

35% time reduction suffers mental illness/intellectual disability - Legally aided person requires interpreter or has barrier to communication

Step 2: Pre-hearing matters and mediation Pre-hearing matters - Receiving notice of defence & undertaking negotiations - Taking further instructions - Preparing A2G - Filing affidavit in reply - Attending Registrars/Judges List/Roundtable conference - Liaising with relevant parties – CYFS, L4C, witnesses, experts - Considering specialist reports, e.g. s132, s133, s59, L4C - Undertaking discovery - Preparing interlocutory app, pre-trial conference memo - Reporting to client - Reporting to & invoicing LA

Pre-hearing matters

8hrs ($1,072) (1) -$362 (1.2hrs) OR (2) -$712 (4.6hrs) = Fees reduced by: (1) 33.77%

reduction (2) 66.42%

reduction Time reduced by: (1) 15% (2) 57.5%

$710 (6.8hrs) OR $360 (3.4hrs) OR $360 (3.4hrs)

First / only proceedings OR Second proceedings OR Third & Subsequent proceedings

All same

- Reviewing file - Preparing for mediation - Attending mediation - Reporting to client - Reporting to LA

Mediation Conference

2hrs ($268) + actual hrs at mediation

-$128 (0.7hrs) = 47.76% fees reduction 35% time reduction + lower rate for hearing ($106, not $134 = 20.9% reduction)

$140 (1.3hrs) $140 (1.3hrs) + $53 per ½ hr

Round-table conference Mediation: Preparation Mediation: Hearing time

All same

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

- Memorandum of issues - Preparing for conference - Attending conference

Judicial Conference

2hrs ($268) + actual hearing hrs

- $128 (0.7hrs) = 47.76% fees reduction 35% time reduction + lower rate for hearing ($106, not $134 = 20.9% reduction)

$140 (1.3hrs) + $53 per ½ hr

Judicial Conference: Preparation Hearing time

All same, plus: - Reporting to client - Reporting to & invoicing MOJ

- Preparing submissions - Attending hearing

Interlocutory hearing(s)

Up to 1.5 times anticipated hearing time + actual hearing hrs

Fixed fee, rather than 1.5 times + lower rate for hearing ($106, not $134 = 20.9% reduction)

$140 (1.3hrs) + $53 per ½ hr

Interlocutory Hearing(s): Preparation Hearing time

All same, plus: - Reporting to client - Reporting to & invoicing MOJ

- Guidelines hrs exceeded - Each factor clearly identified & justified

Additional factors

2hrs ($268) -$128 (0.7hrs) = 47.76% fee reduction 35% time reduction

$140 (1.3hrs)

Additional factors

- Self-represented litigants are party to proceedings - Legally aided person suffers mental illness/intellectual disability - Legally aided person requires interpreter or has barrier to communication

Step 3: Hearing Defended hearing - Reviewing file - Preparing A2G - Preparing for hearing – X-exam, briefing witnesses, submissions - Undertaking research, if necessary - Reporting to client - Reporting to & invoicing for LA

Preparation for hearing

Up to 1.5 times anticipated hearing time

-$41 per hr ($160, not $201 = 20.4% fee reduction)

$160 per anticipated hr of hearing time

Preparation All same as current scheme, except: - No preparing A2G

Hearing Actual hearing hrs

Lower rate $106, not $134 = 20.9% fee reduction

$53 per ½ hr

Hearing

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

+ $140 (1.3hrs) = 100% increase

$140 (1.3hrs)

Additional Factors

- Self-represented litigants are party to proceedings - Legally aided person suffers mental illness/intellectual disability - Legally aided person requires interpreter or has barrier to communication

- Receiving and considering judgment - Discussing with client

Review of judgment

1hr ($134) -$44 (0.14hrs)= 33% fee reduction 14% time reduction

$90 (0.86hrs)

Post-Defended Hearing: Review of judgment

All same, plus: - Attending defended hearing - Advising client on implementation of judgement - Reporting to client - Reporting to & invoicing MoJ

4: Review as a result of Court Order or Direction Post-Defended Hearing - Reviewing parenting orders to evaluate day-to-day care and contact regime - Preparing A2G - Reporting to client - Reporting to & invoicing LA

Review hearing

3hrs ($402) - $162 (0.7hrs) = 40.29% fee reduction 23% time reduction

$240 (2.3hrs)

Review hearing (Court-directed)

All same, plus: - Taking instructions - Attending review hearing

Current hourly guideline rates/activities compared to proposed Fixed Fee Model Domestic Violence Act

Current Scheme ($134/hr ex GST) Reduction in Fees & Time

Proposed Fixed Low Fee Scheme ($105/hr ex GST)

Step 1: Applicant – ‘on notice’ or ‘without notice’ application (undefended)

Application(s)/Order(s) – Applicant & Respondent

- Taking instructions, attending the client

- Identifying legal & factual issues

- Preparing application for Legal Aid

- Preparing ‘without notice’ or ‘on notice’ application for order(s), including: - Affidavit(s) in support - Information sheets for

the Court - Serving of ‘on notice’

documents - Receiving minute/orders

(either following in chambers or 1st Registrar’s/Judge’s List call)

- Reporting to client - Reporting to & invoicing

LSA

Protection order

Up to 6 hrs ($804.00)

(1) -$234 (0.6hrs) OR (2) -$514 (5.2hrs) = Fees reduced by: (1) 29% (2) 64% Time reduced by: (1) 10% (2) 53%

$570 (5.4hrs) OR $290 (2.8hrs) OR $290 (2.8hrs)

First/only proceedings OR Second proceedings OR Third & Subsequent proceedings *NOTE: amalgamates applicant / respondent, makes no distinction btw defended / undefended at Steps 1 + 2

Same tasks as current scheme being an amalgamation of tasks normally covered under Steps 1 + 2 for both applicant & respondent Key amendment: - Preparing ‘Without notice’ or ‘on notice’ application for order(s), including: - Affidavits in support - Information sheets for Court OR - Preparing notice of defence / notice of intention to appear, including affidavit(s) in support)

- For preparing one or more orders in addition to the protection order

Occupation/ tenancy ancillary furniture order(s)

Up to 2 hrs ($268.00)

-$28 (more hours at lower hourly rate represents an actual fee reduction of 22% (i.e. ($134 @ 2.3hrs $308.20)

$240 (2.3hrs) OR $240 (2.3hrs)

Undefended second and third DV applications OR Fourth and subsequent DV applications

- Preparing one or two orders/protection related conditions in addition to the protection order

- Reporting to client - Reporting to and

invoicing MOJ OR - Preparing three or more

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

- For preparing any protection order related conditions, e.g. contact with children who are also protected persons

Special Condition(s)

Up to 1 hr ($134.00)

+$106 = 21% increase in fees

orders / protection related conditions in addition to the protection order

- Reporting to client - Reporting to and

invoicing MOJ - For preparing a protection

order involving a representative for the applicant, e.g. adult representing a child

Representative action

Up to 2 hrs ($268.00)

-$28 (more hours at lower hourly rate represents an actual fee reduction of 22% (i.e. ($134 @ 2.3hrs $308.20)

- For preparing a protection order involving associated respondents

Associated respondent(s)

Up to 2 hrs ($268.00)

- For preparing for hearing - For attending hearing to

resolve undefended application(s)

Formal Proof Hearing

Up to 2 hrs ($268.00) plus actual hearing hours

-$128 (0.7hrs) = 48% fee reduction 35% time reduction

$140 (1.3hrs) + $53 per ½ hr actual hearing time

Formal Proof Hearing – Preparation + Hearing time

Same plus: - Reporting to client

- Guideline hours exceeded Additional Factors

Up to 2 hours ($268.00) plus 30% loading on hours granted for interpreter if required

-$128 (0.7hrs) = 48% fee reduction 35% time reduction

$140 (1.3hrs)

Additional factors

- Additional attendances are required in instances where:

- Self-represented litigants are party to proceedings

- Legally aided person suffers mental illness/intellectual disability

- Legally aided person requires interpreter or has barrier to communication

Note: Fee can only be claimed once per case.

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

Step 2: Applicant – ‘On notice’ or ‘without notice’ application (Defended)

Applicant Only

- Receiving/perusing notice of defence & associated documents from respondent

- Taking instructions, attending client

- Preparing, filing and serving applicant’s reply

- Preparing amendment to legal aid grant

- Undertaking discovery - Liaising with Court

appointed counsel, and third parties (Police, Doctor, hospital, witnesses, experts)

- Preparing and attending as required Registrars List(s)

- Reporting to client - Reporting to & invoicing

LSA

Protection order where: Temporary order(s) obtained without notice are now being opposed/ defended; or Application for protection order initiated on notice and is defended

Up to 6 hrs in addition to work completed at Step 1 ($804.00)

-$334 (1.5hrs) = 42% fee reduction 25% time reduction

$470 (4.5hrs)

Defended Protection Order

Same as existing scheme

- For preparing one or more orders in addition to the protection order

Occupation/ tenancy, ancillary furniture order(s)

Up to 2 hrs ($268)

-$28 (more hours at lower hourly rate represents an actual fee reduction of 22% (i.e. ($134 @ 2.3hrs $308.20)

$240 (2.3hrs)

Defended second and third DV applications

- Preparing three or more orders/protection related conditions in addition to the protection order

- Reporting to client - Reporting to and invoicing

MOJ

- For preparing any protection order related conditions, e.g. contact

Special conditions

Up to 1 hr ($134)

+$106 = 21% increase in fees

Current hourly guideline rates/activities compared to proposed Fixed Fee Model with children who are also protected persons

- For preparing interlocutory application(s), pre-trial conference memorandum

Pre-hearing Up to 4 hrs ($536)

+$174 (2.8hrs) = 32% fee increase 70% time increase OR -$176 (0.5hrs) 33% fee reduction 12.5% time reduction

$710 (6.8hrs) OR $360 (3.5hrs) OR $360 (3.5hrs)

Pre-hearing Matters – Application(s) / Order(s) – First / only proceedings OR Second proceedings OR Third and subsequent proceedings

All same plus: - Reporting to client - Reporting to and invoicing MoJ

For: - Reviewing file - Preparing for hearing –

cross examination, briefing witnesses, submissions

- Undertaking research, if necessary

- Reporting to client

Preparation for hearing

Up to 1.5 times anticipated hearing time (hrs)

Hourly rate reduced by $41 = 20% fee reduction

$160 per anticipated hour of hearing time

Defended Hearing – Preparation

All same plus: - Reporting to and invoicing MoJ

- For attending hearing Hearing Actual hours Hourly rate reduced by -$28 = 21% fee reduction

$53 per ½ hr

Defended Hearing – Hearing time

Same

- Guideline hours must be exceeded

- Each factor must be clearly identified and justified

Additional factors

Up to 2hr ($268)

-$128 (0.7hrs) = 48% fee reduction 35% time reduction

$140 (1.3hrs)

Pre-hearing matters - Additional Factors

Additional attendances are required in instances where:- Self-represented litigants

are party to proceedings - The legally aided person

suffers from mental illness/intellectual disability

- The legally aided person requires an interpreter/translator or

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

has barriers to communication (which don’t require an interpreter/translator)

Fee can only be claimed once per case.

-$128 (0.7hrs) = 48% fee reduction 35% time reduction

$140 (1.3hrs)

Defended Hearing - Additional Factors

Additional attendances are required in instances where:- Self-represented litigants

are party to proceedings - The legally aided person

suffers from mental illness/intellectual disability

- The legally aided person requires an interpreter/translator or has barriers to communication (which don’t require an interpreter/translator)

Fee can only be claimed once per case.

Step 2: Respondent – ‘On

Notice’ or ‘Without Notice’ application (Defended)

Respondent Only

- Taking instructions, attending the client

- Identifying legal and factual issues

- Preparing application for legal aid

- Preparing notice of defence/notice of intention to appear, including affidavit(s) in support

Notice of defence (if ‘on notice’) or Notice of intention to appear (if preceded by temporary orders)

Up to 7 hours ($938)

-$368 (1.6hrs) = 39% fee reduction 23% time reduction

$570 (5.4hrs)

First/only proceedings *NOTE: amalgamates applicant / respondent, makes no distinction btw defended

Same tasks as current scheme being an amalgamation of tasks normally covered under Steps 1 + 2 for both applicant & respondent Key amendment: - Preparing ‘Without notice’ or ‘on notice’ application for

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

- Serving of documents - Undertaking discovery - Liaising with third parties

– Police Doctor, hospital witnesses, experts, programme issues

- Preparing and attending, as required, Registrars List(s)

- Reporting to client - Reporting to and invoicing

LSA

/ undefended at Steps 1 + 2

order(s), including: - Affidavits in support - Information sheets for Court OR - Preparing notice of defence / notice of intention to appear, including affidavit(s) in support)

For preparing objection to programme in addition to preparing defence of order(s)

Objection to Programme

Up to 1 hour ($134.00)

+$106 (1.3hrs)

$240 (2.3hrs)

Objection to Programme

For: - Preparing objection to

programme - Reporting to client - Reporting to and

invoicing MOJ

For preparing objection to programme only, i.e. not defending the protection order(s)

Objection to Programme (only)

Up to 4 hours ($536)

-$296 (1.7hrs) = 55% fee reduction 43% time reduction

For defending one or more orders in addition to the protection order

Occupation/ tenancy, ancillary furniture order(s)

Up to 2 hours ($268.00)

+$22 (0.8hrs) at lower hourly rate represents 29% fee reduction

$290 (2.8hrs) OR $290 (2.8hrs)

Second proceedings OR Third & Subsequent proceedings

For defending any protection order related conditions

Special condition(s)

Up to 1 hour ($134)

+$156 (0.8hrs)

For preparing interlocutory application(s), pre-trial conference memorandum

Pre-hearing Up to 4 hours ($536)

+$174 (2.8hrs) = 32% fee increase 70% time increase OR -$176 (0.5hrs) 33% fee reduction

$710 (6.8hrs) OR $360 (3.5hrs) OR $360 (3.5hrs)

Pre-hearing Matters – Application(s) / Order(s) – First / only proceedings OR Second proceedings

All same plus: - Reporting to client - Reporting to and invoicing MoJ

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

12.5% time reduction

OR Third and subsequent proceedings

- Reviewing file - Preparing for hearing –

cross examination, briefing witnesses, submissions

- Undertaking research, if necessary

- Reporting to client

Hearing Up to 1.5 times anticipated hearing time (hours

Hourly rate reduced by $41 = 20% fee reduction

$160 per anticipated hour of hearing time

Defended Hearing – Preparation

All same plus: - Reporting to and invoicing MoJ

For attending hearing Hearing Actual Hours Hourly rate reduced by -$28 = 21% fee reduction

$53 per ½ hr

Defended hearing – Hearing time

Same

- Guideline hours must be exceeded

- Each factor must be clearly identified and justified

-

Additional factors

Up to 2hrs ($268)

-$128 (0.7hrs) = 48% fee reduction 35% time reduction

$140 (1.3hrs)

Pre-hearing matters - Additional Factors

Additional attendances are required in instances where:- Self-represented litigants

are party to proceedings - The legally aided person

suffers from mental illness/intellectual disability

- The legally aided person requires an interpreter/translator or has barriers to communication (which don’t require an interpreter/translator)

Fee can only be claimed once per case.

-$128 (0.7hrs) = 48% fee reduction 35% time reduction

$140 (1.3hrs)

Defended Hearing - Additional Factors

Additional attendances are required in instances where:- Self-represented litigants

are party to proceedings - The legally aided person

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

suffers from mental illness/intellectual disability

- The legally aided person requires an interpreter/translator or has barriers to communication (which don’t require an interpreter/translator)

Fee can only be claimed once per case.

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

Children & Young Persons

Current Scheme ($134 per hour ex GST)

Reduction in Time & Fees

Proposed Fixed Low Fee Scheme $105 ex GST?

Step 1: Application for declaration and/or other CYPF Act Order

Application(s)/Order(s)

- Taking instructions, attending client - Identifying legal and factual issues - Preparing application for legal aid - Preparing application interim/final declaration (orders), including affidavit(s) in support, information sheets for Court - Serving documents - Considering need for Counsel for Child - Considering need for s178 report from medical or mental health specialist - Attending CYPF List or Judges List hearing - Reporting to client - Reporting to and invoicing LA

Declarations and/or other CYPF Act order(s)

8hrs ($1,072) (1) -$502 (2.6hrs) (2) -$782 (5.2 hrs) = Fee reduced by: (1) 47% (2) 73% Time reduced by: (1) 32.5% (2) 65%

$570 (5.4hrs) OR $290 (2.8hrs) OR $290 (2.8hrs)

First/only proceedings Or second proceedings Or third and subsequent proceedings

Same as current scheme

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

- Guideline hours must be exceeded - Each factor must be clearly identified and justified

Additional factors

3hrs ($402) -$262 (1.7hrs) = 65% fee reduction 56% time reduction

$140 (1.3hrs) Additional factors

- Self represented litigants are party to proceedings - Legally aided person suffers from mental illness/intellectual disability - Legally aided person requires an interpreter/translator or has barriers to communication

Step 2: Pre-hearing Matters Pre-hearing Matters - Taking further instructions - Preparing amendments to legal aid grant - Undertaking negotiations - Attending Registrar’s List/Chambers hearings - Liaising with relevant parties – CYF, Counsel for child, witnesses, experts - Considering specialist report s178 report - Undertaking discovery - Preparing interlocutory application(s), pre-trial conference memorandum - Reporting to client - Reporting to and invoicing LA

Pre-hearing matters

10hrs ($1340) (1) -$630 (3.2hrs) (2) -$980 (6.6hrs) = Fee reduced by: (1) 65.8% (2) 32.4% Time reduced by: (1) 32% (2) 66%

$710 (6.8hrs) OR $360 (3.4hrs) OR $360 (3.4hrs)

First/only proceedings OR second proceedings OR third and subsequent proceedings

Same as current scheme

- Reviewing file - Preparing for hearing – briefing clients, submissions - Reporting to client

Mediation conference

Up to 1.5 times anticipated conference time plus actual hearing time

Fixed fee + lower rate for hearing ($106, not $134 = 21% reduction)

$140 (1.3hrs) + Hearing time @ $53 per half hour (mediation conference only)

Mediation / Round-table conference

Same as current scheme plus: - Reporting to and invoicing MOJ

- Preparing submissions for interlocutory hearing(s)

Interlocutory hearing(s)

Up to 1.5 times anticipated

Fixed fee + lower rate for

$140 (1.3hrs) + Hearing time @

Interlocutory hearing(s)

Same as current scheme plus:

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

hearing time plus actual hearing time

hearing ($106, not $134 – 21% reduction)

$53 per half hour

- Reporting to client - Reporting to and invoicing MOJ

+$140 + hearing time for Judicial Conference

$140 (1.3hrs) + Hearing time @ $53 per half hour

Judicial conference(s)

- Preparing for judicial conference(s) (including memorandum of issues) - Reporting to client - Reporting to and invoicing MOJ

- Guideline hours must be exceeded - Each factor must be clearly identified and justified

Additional factors

2 hours ($268) -$128 (0.7hrs) = 47.8% fee reduction 35% time reduction

$140 (1.3hrs) Additional factors

- Self-represented litigants are party to proceedings - Legally aided person suffers from mental illness/intellectual disability - Legally aided person requires an interpreter/translator or has barriers to communication

Step 3: Hearing Defended hearing - Reviewing file - Preparing amendment to legal aid grant - Preparing for hearing – cross examination, briefing witnesses, submissions - Undertaking research, if necessary - Reporting to client - Reporting to and invoicing LA

Preparation for hearing

Up to 1.5 times anticipated hearing time plus actual hearing time

Hourly rate reduced by $41

$160 per anticipated hour of hearing time

Preparation for defended hearing

Same as current scheme

Hearing Actual hours Hour rate reduced by $28 = 21% fee reduction

$53 per half hour

Hearing

- Receiving and considering judgment

Review of judgment

2hrs ($268) -$128 (0.7hrs) = 47.8% fee

$140 (1.3hrs) Review of judgment

Same as current scheme plus:

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

- Advising client on implementation of judgement

reduction 35% time reduction

- Reporting to and invoicing MOJ

Step 4: Court Review of a Case/Plan as a result of Court Order or Direction

Post-Defended hearing

- Reviewing case and protection plan, taking instructions - Preparing amendment to legal aid grant - Consulting with CYFS - Attending review hearing - Reporting to client - Reporting to and invoicing LA

Review hearing

3hrs ($402) -$162 (0.7hrs) = 40% fee reduction 23% time reduction

$240 (2.3hrs) Review hearing

Same as current scheme

Current hourly guideline rates/activities compared to proposed Fixed Fee Model Property Relationships

Current Scheme ($134 / hour ex GST)

Reduction in Fees & Time

Proposed Fixed Low Fee Scheme ($105/hr ex GST)

Step 1(a): Pre-proceedings: Investigation and Negotiation Application(s)/Order(s) - Taking instructions, attending client - Identifying legal and factual issues - Preparing application for legal aid - Disclosure, discovery, asset valuations. - Negotiating between parties - Reporting to client - Reporting to and invoicing LA

Pre-proceedings

7hrs ($938) (1) -$368 (1.6hrs) OR (2) -$648 (4.24hs) = Fee reduced by: (1) 39% (2) 69% Time reduced by: (1) 23% (2) 61% * NOTE: inclusive of Step 1(b): (1) -$1,976 (13.6hrs) (2) -$2,256 (16.24hrs) = Fee reduced by: (1) 210% (2) 240% Time reduced by: (1) 194% (2) 232%

$570 (5.4hrs) Or $290 (2.76) Or $290 (2.76)

First/only proceedings Or second proceedings Or third and subsequent proceedings

Same as current scheme plus preparing for Step 1(b) of current scheme which includes: - Drafting/filing application for/defence to relationship property orders - Drafting/filing applicant/ respondent P(R)1, narrative affidavit - Serving of documents - Attending Registrar/s/Chambers list hearings - Preparing interlocutory application(s), pre-trial conference memorandum - Receiving Court review and directions *NOTE: no allowance for amendment to legal aid grant

- Drafting and certifying s.21 agreement – if agreement is reached at this stage

s.21 Agreement

2hrs ($268) -$128 (0.7hrs) = 47.8% fee reduction 35% time reduction

$140 (1.3hrs)

s.21 Agreement

Same as current scheme plus: - Reporting to client - Reporting to and invoicing Ministry of Justice

- Guideline hours must be exceeded

Additional factors

2hrs ($268) -$128 (0.7hrs) = 47.8% fee

$140 Additional factors

- Self-represented litigants are party to proceedings

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

- Each factor must be clearly identified and justified

reduction 35% time reduction

- Legally aided person suffers from mental illness/intellectual disability - Legally aided person requires an interpreter/translator or has barriers to communication

Step 1(b): Pre-proceedings: make or defend application - Preparing amendment to legal aid grant - Drafting/filing application for/defence to relationship property orders - Drafting/filing applicant/ respondent P(R)1, narrative affidavit - Serving of documents - Attending Registrar/s/Chambers list hearings - Preparing interlocutory application(s), pre-trial conference memorandum - Receiving Court review and directions - Reporting to client - Reporting to and invoicing Legal Aid

Relationship Property order(s)

7hrs ($938) -$938 (7hrs) = 100% reduction

$0 Tasks including in the above activity

- Preparing submissions for interlocutory hearing(s) (hearing time expected to be minimal)

Interlocutory hearing(s)

3hrs($402) -$402 (3hrs) = 100% reduction

- Guideline hours must be exceeded - Each factor4 must be clearly identified and

Additional factors

2 hours ($268) -$268 (2hrs) = 100% reduction

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

justified

Step 2: Pre-hearing matters Pre-hearing matters - Preparing submissions for settlement conference, including memorandum of issues

Settlement conference

Up to 2 times anticipated conference time plus actual hearing time

Hourly rate reduced by $58 = 22% fee reduction

$210 per anticipated hour of hearing time

Settlement conference

Same as current scheme plus - Reporting to client - Reporting to and invoicing MOJ

Hearing Actual hours $53 per half hour

Hearing

- Preparing consent memorandum – if agreement reached in settlement conference

Consent memorandum

2hrs($268) -$128 (0.7hrs) = 47.8% fee reduction 35% time reduction

$140 (1.3hrs)

Consent memorandum

Same as current scheme plus - Reporting to client - Reporting to and invoicing MOJ

- Undertaking further round of discovery – updated accounting reports, asset valuations, debt levels - Preparing interlocutory applications(s), pre-trial conference memorandum - Preparing amendment to legal aid grant - Reporting to client - Reporting to and invoicing LA

Discovery 6hrs($804) -$334 (1.2hrs) = 41.5% fee reduction 20% time reduction

$470 (4.8hrs)

Discovery Same as current scheme, except: - no allowance for amendment to legal aid grant

- Preparing submission for interlocutory hearing(s) (hearing time expected to be minimal)

Interlocutory hearing(s)

2hrs ($268) -$78 (0.2hrs) = 29% fee reduction 10% time reduction

$190 (1.8hrs) Hearing time - $53 per half hour

Interlocutory hearing(s)

Same as current scheme plus - Reporting to client - Reporting to and invoicing MOJ

- Obtaining information requested from other party to clarify/support the matter

Interrogatories

4hrs ($536) -$206 (0.9hrs) = 38.4% fee reduction

$330 (3.1hrs)

Interrogatories

Same as current scheme plus - Reporting to client

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

22.5% time reduction

- Reporting to and invoicing MOJ

- Preparing pre-hearing documents – list of issues, authorities ‘bundle’ of documents (affidavits, statements of evidence)

Document preparation

9hrs ($1206) -$446 (1.77hrs) = 37% fee reduction 19.6% time reduction

$760 (7.23hrs)

Document preparation

Same as current scheme plus - Reporting to client - Reporting to and invoicing MOJ

- Guideline hours must be exceeded - Each factor must be clearly identified and justified

Additional factors

2hrs ($268) -$128 (0.7hrs) = 47.8% fee reduction 35% time reduction

$140 (1.3hrs)

Additional factors

- Self represented litigants are party to proceedings - Legally aided person suffers from mental illness/intellectual disability - Legally aided person requires an interpreter/translator or has barriers to communication

Step 3: Hearing Defended hearing - Reviewing file - Preparing amendment to legal aid grant - Preparing for hearing – cross examination, briefing witnesses, submissions - Undertaking research, if necessary - Reporting to client - Reporting to and invoicing LA

Preparation for hearing

Up to 1.5 times anticipated hearing time plus actual hearing time

Hourly rate reduced by $41

$160 per anticipated hour of hearing time

Preparation for defended hearing

Same as current scheme, except: - no allowance for amendment to legal aid grant

Hearing Actual hours Hour rate reduced by $28 = 21% fee reduction

$53 per half hour

Hearing

- Receiving and considering final orders - Sealing final orders (if

Review of judgment

5hrs ($670) -$240 (0.9) = 35.8% fee reduction

$430 (4.1 hrs)

Review of judgment

Same as current scheme plus: - Reporting to and invoicing

Current hourly guideline rates/activities compared to proposed Fixed Fee Model

appropriate) - Advising client on implementation of final orders – re-financing, re-occupation, debt management, allocation of funds

18% time reduction MOJ

+$140 (1.3hrs) $140 (1.3hrs)

Additional factors

- Self-represented litigants are party to proceedings - Legally aided person suffers from mental illness/intellectual disability - Legally aided person requires an interpreter/translator or has barriers to communication

APPENDIX C

Children, Young Persons and Their Families Act

Scenarios to Illustrate Complexity

 

 

Children, Young Persons, and Their Families Act Scenarios to Illustrate Complexity

CYP Proceedings Pre-proceedings Settlements - $470 (if these are intended to apply to CYP Proceedings) Scenario # 1 Police Officer exercises s 42 discretion (belief on reasonable grounds) that it is critically necessary to protect a child or young person from injury or death by, without a warrant, entering any place or premise, searching, removing and detaining a child and placing it in the custody of the Chief Executive (“CE”). No application is required. No Court order is required. The child is removed. Once in custody of the CE, the CE has discretion to place the child with a parent/ guardian/ the person who previously had the care/ a member of the child’s family or family group or by any person approved by the social worker or in a residence. The CE may at any time release the child from that custody. The CE has a duty to bring the child before the Court within 5 days if not released, or if a s 78 order is not made, but the CE can keep custody of child until the child can be brought before the Court. What are counsel’s instructions? The client instructs you on Tuesday afternoon that they went to pick their child up at school on Friday afternoon and the child was not there. The school said that somebody from CYFS had been there and taken the child and that CYFS would be in touch. The client has heard nothing further and wants to know where their child is, “she has never spent a night away from home”, and if you can get her back. The client is very worried her child will be very frightened with strangers. It is Day 5. Tasks to be performed by counsel: take instructions and attend a very distressed client, identify the legal and factual issues and liaise with the other party, conduct negotiations and where possible reach agreement, report to client, prepare application for legal aid, report to and invoice Ministry of Justice in approximately 4.5 hours. Legal Issues involved: New Zealand Bill of Rights Act, public administrative law, Children, Young Persons, and Their Families Act, and the UN Convention on the Rights of the Child (UNCROC). If you advise your client to file a s 44 or 121 application by way of response, you could presumably claim $100 more for preparing and filing the proceedings and attending the first JC + $140 (one-off) for additional attendances if your client qualifies, or approximately 2 more hours. Scenario # 1 would operate in practice as a disincentive to negotiate or settle, conflicting with the overall policy aim of incentivising efficiencies.

Scenario # 2 A social worker makes a decision to investigate on the third NZ Police notification (neighbour complainant each time that loud arguments are happening next door between parents with two little children in home). A decision is made to convene a Family Group Conference (“FGC”) and obtain an agreement (ss 139 to 140). Client attends your offices (2 hours), wants representation and advice and your attendance at the shortly to be convened 3-4 hour FGC (requiring 1-hour return travel). No applications/ orders. There are barriers to communication – your client does not speak English well, suffers PTSD, and wife has mental health issues as well. Do you take on this pre-proceeding settlement for 4.5 hours in fees or advise your client to file Domestic Violence Act/ Care of Children Act proceedings to manage the issues that are causing concern to CYFS, thereby incentivising litigation and the number of matters before the Court? Scenario # 2 would disincentivise negotiation/settlement and create litigation. Application(s)/ Order(s) Activity Application(s)/ Orders – First Only proceedings Scenario # 3 Ministry of Social Development applies without notice for Orders authorising a power to remove child or young person. Available under s 39 (Place of Safety Warrant), s 40 (Warrant to Remove), and s 78 (Interim Custody Order) if accompanied by an application under Part 2 of the Act or in any of the circumstances set out in s 78(2)(a) to (f) (six possibilities) Process – Court hears from applicant MSD and makes orders Result – child removed Applications made = 3 Orders made = 2 Client approaches you for advice, representation, and your attendance at FGC. Lets you know there is a 10-year “history with the Ministry” and you see this phrase repeated a number of times throughout the social worker’s affidavit in support of the s 67 and s 78 applications. The “history” is the basis of the social worker’s belief that the removed child is in need of care and protection but scant details appear. You have to do an official information request and read through 2,000 pages of discovery before you can identify the factual issues. Then you are in a position to examine the applications/ orders, see if they have been lawfully made, advise on review/ rehearing/ variation/ judicial review rights your client may be entitled to and take instructions. MSD has not filed plans or applications for custody orders, has custody, and has approved one-hour of supervised contact each week for your client. Court cannot hear s 67 for about a year. During this time, your client’s child may have up to six different

placements/ caregivers (child is under the age of 2). A review/ rehearing/ variation of the s 78 might be able to be heard within 3 months, and the FGC in two. How do the first/ second/ third proceedings activities work in this scenario? Is the forensic task part of the $570 fees or the $290 fees? Is it seriously intended that settlement of s 121 access issues at FGC or by negotiating with the MSD is not a task that can be claimed for? Scenario # 4: Ministry of Social Development applies on notice for a ss 78 & 67 and without notice for an order reducing time for filing notice of intention to three days. Process – Court hears from applicant and makes interlocutory orders Result – parent has three days to obtain and instruct counsel and file a notice of intention to appear. For example, s 78 + s 67 applications + FGC (Proposed Applications/Orders vs Step 1 in current schedule) Proposed fees $570 fees = 5.43 hours@ $105.00/hour + $290 = 2.76 hrs at new rate (total hours = 8.19hrs) + Potential one-off additional factors of $140 = 1.33 hrs at new rate (total hours may equal 9.52 hrs) Compare with current step 1 for an application filed by CYFS of 8 hrs for each application filed + 3 for FGC + 3 additional factors = 22 hrs remunerated according to provider experience level and able to be extended by amendment to grant.

 

APPENDIX D

Auckland District Law Society Incorporated Guidelines

Mental Health Roster

 

 

 

 

GUIDELINES

MENTAL HEALTH ROSTER Introduction 1. The Auckland Mental Health Roster was established in about 1988. Initially it

involved lawyers representing patients at Carrington and Kingseat Hospitals. There are now two separate rosters of lawyers covering Auckland City (Central North and West) and South Auckland.

2. One of the functions of the Auckland District Law Society Inc. (ADLSi) Mental

Health and Disability Law Committee (“the Committee”) is the efficient administration of the rosters. As a step towards fulfilling that function the Committee has issued these guidelines. The guidelines are divided into two parts. Part One covers administration matters. Part Two covers best practice guidelines.

PART ONE – ADMINISTRATION Structure – How the Rosters Work 3. The Rosters are a list of lawyers’ names, grouped on a weekly basis. On the

Auckland roster there are six teams of four lawyers. Each team has a team leader. The South Auckland Roster names a rostered lawyer (the “Liaison Person”) and one reserve, over an eight-week cycle. In each subsequent roster, the reserve becomes the rostered lawyer and vice versa.

4. To ensure a fair distribution of work, lawyers must choose either the City or

the South Auckland Roster. Each rostered lawyer is allocated one listing per roster cycle. ADLSi staff prepare and circulate the rosters.

5. The primary purpose of the Roster is to ensure that all patients under the Act

may receive specialist legal assistance. All patients have the right to use their own private lawyers if they so choose.

6. Lawyers are rostered for a particular week. During that week they are to be

available to receive instructions for any work arising under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (“the Act”). Primarily, this involves representing patients at judicial and review tribunal hearings.

Lawyer Eligibility 7. To apply to be added to the wait list (para 9), a lawyer must:

(a) Have a current practicing certificate and at least three years post admission legal experience;

(b) Demonstrate an interest in Mental Health law;

(c) Give reasons for applying, including any specific qualities or experience relevant to acting for patients affected by the Act;

(d) Be familiar with the Act;

(e) Agree to regularly attend such seminars as the Committee deems

necessary, for continuing education. (Where personal attendance is not possible, the applicant must obtain the material presented and be familiar with it).

(f) Approved by Legal Aid as an eligible LSA provider.

8. Admission to the wait list is determined by the Committee on an application

by application basis. No preference is given to an apparently more meritorious applicant ahead of someone whose application precedes him or her in time. The Committee may defer the consideration of any application for admission to the wait list until an applicant has attended seminars and demonstrated a greater interest in Mental Health law.

Wait List for Rosters 9. The Committee shall maintain a list of lawyers who have been approved as

suitable to be added to the Rosters when a vacancy occurs. The lawyer at the top of the wait list shall be offered any vacancy arising. If the person at the top of the list wishes to be rostered in the other Roster, rather than the Roster offered, then the vacancy shall be offered to the first person (by order of priority) prepared to fill the roster position available.

(a) The Committee may allow, in special circumstances, the person at the top of the waitlist to remain unrostered.

10. The Committee will periodically update the wait list to ensure that it represents

those currently wishing to be rostered. Admission to a Roster 11. Before being allocated work as a team member, the applicant shall:

(a) Attend any mental health workshop organised by the Committee;

(b) Attend as an observer at hearings under the Act, as required by the Committee representative nominated to assist the applicant;

(c) Be familiar with, and provide written acceptance of, these guidelines;

(d) Carry out any further training, as the Committee deems necessary.

The role 12. The rostered lawyer is to approach a patient who is scheduled to see a Judge or

Tribunal and offer legal assistance. (Refer Best Practice Guidelines) A patient who has been through the judicial hearing process previously may wish to have the same lawyer acting for them again. Where a patient does not have a lawyer, they are free to use the services of the one allocated to them according to the Roster. The patient has the right not to be represented at all if they wish, but in those circumstances, the District Inspector and Medical Records should be notified. In those circumstances counsel should advise the court at the hearing of their instructions and/or seek direction to be appointed as counsel to assist.

13. Although the Roster is a weekly one, a lawyer who receives instructions during

his or her rostered week should (if available) continue to act for that patient. This will include:

a) s34 six month reviews; b) Review Tribunal hearings; c) Re-admissions under s29 and s16 applications.

14. Where the patient wishes to retain the same lawyer, the lawyer shall be free to

follow the patient within the greater Auckland area. (That is outside the roster boundaries.)

Standard of Representation 15. The objective of the Mental Health Roster is to achieve the very best standards of

representation for patients under the Act. Team Member Obligations 16. A team member shall:

(a) Confirm availability to the Team Leader at least 24 hours before their rostered week;

(b) Give prompt response to notification of patients; (c) Arrange a rostered replacement if unavailable for rostered week and

notify the Team Leader in order to gain their approval; (d) Attend seminars and forums arranged by the Committee; (e) A lawyer should not delay contacting their client in relation to a MHRT

notification. It is the responsibility of the lawyer rostered for any given week to ensure their availability to interview patients promptly upon notification, and to be available for the hearings. It is not acceptable to delay the first meeting with a patient until the night before or the day of the hearing, especially where the application is opposed, unless there are exceptional circumstances. Telephone contact on the day before the hearing is the minimum.

17. No rostered lawyer should represent more than four (4) patients on any given

day. The time required to adequately represent a patient is such that any more than four patients would lead to poorer standards of representation. Where possible lawyers should seek their clients to be called in a staggered order to allow proper debriefing of the first client and preparation of the next client including introduction to family and friends.

Team Leaders 18. Team Leaders are roster members appointed to administer the Auckland City

roster for one week in six. Team Leader Duties 19. The team leaders duties include the following:

(a) Allocate lawyers for unrepresented patients arising from notification by: (i) Hospital/unit medical records officers (ii) Mental Health Review Tribunal secretary (iii) District Inspectors as to section 16 applications

(b) Notify lawyers indicated by medical records staff as previously

representing patients. (c) Report to the Committee if team members are not meeting their

obligations (d) That the Team Leader gets hold of the list to check who was the

patient’s lawyer to see if patient wants that lawyer to attend/act for them or whether they would like another lawyer to represent them.

(e) To reassign previous counsel if that is suitable (i.e.) Counsel who last acted for previous client

(f) It is desirable for Team Leader/Supervisor that they reassign patient/lawyer when notified or at least a week before.

(g) Lawyer appointed should make prompt contact with patients. (h) Ensure that s 16 applications that have been notified to the Team

Leader should be heard within the 3 working days specified by the guidelines.

(i) The rostered lawyer must contact the Team Leader to inform them that they were unavailable and in order to gain their approval for the replacement they had arranged from the roster list.

Notification Period 20. It is essential patients have lawyers available as quickly as possible. A team

leader or liaison person request (phone or fax) to a lawyer who has previously acted, for confirmation of availability to represent the patient, should be answered the same day. If the Team Leader/liaison person has not received a response by 10 am the following day the Team Leader/liaison person shall assume that lawyer is not available and allocate the patient(s) to available team members/do it themselves. A lawyer who has not responded within the notification period is deemed to be unavailable and shall not represent that patient. The lawyer allocated by the Team Leader may indicate to the patient that the previous lawyer has been contacted and is unavailable.

Late Notification 21. In situations where a Team Leader/liaison person receives notification of patients

the day before a hearing or in any “last minute” situation and there is a known lawyer who has recently represented the patient, the Team Leader/liaison person

will telephone the known lawyer. If that lawyer is not immediately available and able to represent the patient the Team Leader/liaison person shall allocate one of his or her team to represent the patient/do it themselves.

22. The notification rules shall apply to both the Team Leader’s team members and

to lawyers identified as having previously represented patients. Temporary absence from roster 23. A rostered lawyer may arrange a replacement for an allocated week with another

rostered lawyer when there are special circumstances for being unavailable. 24. Unavailability for consecutive rosters shall immediately be referred to the

Committee by Team Leaders. 25. A rostered lawyer may apply to the Committee for leave from rostered duty for up

to three months. Leave for a greater period will only be granted in exceptional circumstances.

Committee Complaints 26. All complaints, other than those concerned with the administration of the roster,

must be forwarded to NZLS. If the Committee is approached regarding a complaint, they should either direct the aggrieved party to NZLS directly or may refer the complaint to NZLS who will take over the process from there. Where a complaint is upheld by NZLS, the Committee asks to be informed of the decision and any disciplinary consequences.

27. The Committee reserves the right to make any changes to the administration of

the roster upon the result of a complaint being upheld against a rostered lawyer.

Part Two Best Practice Guidelines Introduction 28. The Rosters provide an opportunity for patients under compulsory assessment or

treatment orders to have legal representation at hearings. The rostered lawyer approaches the patient and offers their services for the hearing.

If the patient accepts the offer of legal assistance, a solicitor/client relationship is established and all usual solicitor/client obligations follow.

29. There are some special aspects of the solicitor/client relationship when dealing

with Mental Health patients including –

The client may have limitations in their ability to understand and assess legal advice.

Stress and unwellness may limit the patient’s ability to disclose information.

Unwellness and/or medication levels may make communication difficult.

General matters 30. The following standards are essential in Mental Health work:

Competence in Mental Health Law

A prompt response to allocation of work on rostered week.

Be available for follow-up hearings.

Patience and courtesy with clients.

Establish a positive professional and courteous relationship with doctors, nurses and other health professionals.

A courteous insistence that all relevant client issues are raised at hearing.

Role 31. The lawyer’s primary role is to represent the client in accordance with the

client’s instructions. The role of counsel has been thoroughly canvassed as one of advocating for the client and not adopting an attempted “best interests” approach. (Refer NZLS seminar Feb – March 93, May-June 1996 and ADLSI Seminar Feb 1994)

32. The primary role having been stated, it is crucial to recognise the need for

care in assisting clients to explore the likely implications of their instructions. There needs to be investigation of the options available and the likely outcomes of each. Options should be “reality tested” to identify the option which is most likely to achieve the desired result. It may be that negotiation/discussion/meetings/non Court options may be the more effective than a hearing.

33. Once a client has had the benefit of proper advice including appropriate

warnings as to the likely implications the lawyer must proceed with the instructions given. This may be contrary to a medical best clinical practice perspective. This tension is for the court and not counsel to resolve.

First Contact 34. Following notification of a patient in a hospital facing a hearing, lawyers

should:

Should make appointments to see clients, rather than simply arrive at inpatient unit/community clinic

Follow local rules for visitors

Ask inpatient/community nursing staff whether any safety issues exist and request staff be present if there is any concern arising from this information

Check nursing staff for availability of patient and make an appointment

Introduce themselves – offer a business card

Explain the offer of legal assistance and understanding of the Act

Explain independence from doctors and hospital

Explain availability on a without charge basis Contacting Patients in the Community 35. Where patients in the community are facing a hearing a lawyer should:

Telephone the community mental health unit and obtain contact details from medical records or key worker

Consider safety/reputation issues in making appointments. Is the community mental health centre a better venue?

If there is no phone contact, gain the assistance of the key worker to make contact

If making contact before the hearing is impossible, warn the medical records clerk/registrar. Seek a brief time to meet the client. Consider an adjournment application.

Follow the standard introduction guidelines Clear appointment 36. Where the patient responds seeking assistance a lawyer should:

Listen and obtain a brief overview of the client’s circumstances and concerns

Request written authority to check the hospital file

Explain that a summary of the file information will be discussed after file inspection

Patients unable to give instructions 37. Where a patient is unable to give instructions through unwellness a lawyer

should –

Attempt brief discussion with nursing staff / doctor / family / community workers

Attend Court and seek appointment as amicus or notify medical records Clear refusal to use a lawyer 38. Where there is clear refusal to accept the offer of legal assistance–

Confirm there is no obligation to use a lawyer

Invite patient to retain a business card in case of change of mind

Advise nurse, medical records and district inspector

It is inappropriate for a lawyer to act as a patients lawyer, other than as counsel to the Court, where a patient has elected not to accept assistance.

Prior representation 39. If it appears a patient has received recent legal assistance or has a preferred

lawyer, the identity of that lawyer should be checked. The patient should be asked if they wish to have the same lawyer. If they want that other lawyer, their ability to make contact by themselves should be checked and help given as appropriate. Medical records should be informed. If a patient is unclear about other lawyers and appears content with your assistance, proceed to file inspection.

Unclear patient 40. When a client is limited in ability to communicate but makes it clear they wish

to leave/cease compulsory status, this should be received as an instruction to act and to challenge compulsory status. The matter should proceed on the

basis of raising every available objection to compulsory status but with the obligations in paragraphs 31 to 33 in mind.

File inspection 41. The local rules for file inspection should be followed with as little

inconvenience as possible to nursing staff. Some files will have nursing and legal papers on one file. Some units keep records separately. Please note that these guidelines were prepared before the Second Health Professionals Report.

Examine the following papers:

Read notes on the Health Care Community

Admission sheet as to base information including family contacts

Warning page – note danger issues

Admission information – presentation on admission

AWOL record?

Discharge plan

Nursing notes

Legal papers; o Doctor’s summary as to client conduct o dates/signatures/Responsible Clinician o type of order sought if application made

Uplift a copy of the application papers (s14 (4)).

Uplift a copy of the summary sheet made available to the Court (s 18) and check for s 76 certificate.

Nurse/Registrar 42. Speak with nurse/Registrar and second health professional (if readily available) as to current issues. Report to client 43. Meet with the client and discuss overview of file

Identify relevant issues e.g., o Diagnosis abnormal state of mind etc – second opinion? o Level of seriousness o Need for order o Client attitude to medication o Plans for discharge

check evidence available – explain need for evidence and witnesses

indicate strength of case and options available

take instructions on issues that may be negotiated with Responsible Clinician

Witnesses 44. Check available witnesses.

Identify family/friends/contacts who may be prepared to attend/present written material

Contact witnesses direct if the client will allow

Identify in the witness o level of knowledge concerning client unwellness o level of recent contact o attitude to compulsory status for client o witness availability for future support o availability for hearing

Identify (hostile) witnesses and any potential conflict with a family member claiming to be the client’s “caregiver”.

Cultural Issues 45. The Act provides in section 5 for proper recognition of the client’s family group

and cultural, ethnic identity/language/religious or ethical beliefs. The initial meeting and file information should provide an indication of the need for special consideration of these matters.

Ask the client if they would like the support of a relevant support person (family member, kaumatua, priest etc.)

Ask if they would prefer to begin the hearing with karanga/karakia

Take responsibility in this area. (At the hearing introduce people to the Judge and indicate the approach requested by the client.)

Doctor 46. A positive relationship with the responsible clinician is essential

Telephone the responsible clinician and check the current intentions for the client

Clarify the role of family and likely witnesses supporting compulsory status

Identify any issues needing resolution including leave and community options

Negotiate in terms of the client’s instructions

Clarify the options available Interpreters 47. The Mental Health Units will usually provide interpreters where language is an

issue for Doctors and nurses. The same interpreter may cover the hearing as well.

It is useful to use the same interpreter for work outside the unit if only small amounts of time are required. This will need to be authorised by the Mental Health Unit staff. If a large time commitment is necessary obtain an interpreter through the Court or LSA. Arrange for the interpreter to be available a substantial time before any hearing to allow proper pre hearing discussion.

Second opinion 48. Section 21 enables the Court to call for a report on a patient. The need for a

second opinion and the specific areas to be addressed must be identified. There should be identifiable issues relating to:

the first limb of the definition of “mental disorder”, or

the need for an order, or

community placement/inpatient issues A second medical opinion should cover material listed at MH 21.04 Trapski Family Law Vol. 3 (Compiled by A Simpson & S McCarthy)

If the Court declines to order a report, an application must be made through Legal Aid. Full details as to the factual background and the appropriateness of a second opinion must be supplied to Legal Aid.

The second opinion will only be relevant where an adjournment before final disposition is available.

Hearings – section 16 49. This is the client’s application. Lawyers should consider carefully the value of

proceeding with a section 16 application if there is no evidence to support the application.

Is the hearing therapeutic for the client? Will a hearing provide insights into the way a later application for a treatment order will proceed?

It is essential to be familiar with the case law on “fit to be released from compulsory status”.

At the hearing, if a client is experiencing difficulty in expressing their concerns, seek permission to lead the client through the issues.

Make the appropriate legal submissions drawing on the facts. Debrief the client following the hearing. If the client makes a second s16 application under section 16(1C) the lawyer should ensure that any evidence of a change in the patient's condition is sent to the Mental Health Administrator in advance of the time set for the hearing. Otherwise the Judge is likely to have only the evidence of the responsible clinician when considering whether to grant the application for review. A simple email to the Administrator stating" I believe there has been a change in X's circumstances since his/her last s16 review for the following reasons ...." should suffice.

Hearings - Section 18 examination/Defended hearing 50. The application is brought by the Responsible Clinician and it is for him/her to

establish the case for a compulsory treatment order

Section 18 examination must take place.

Indicate the instructions held before the examination begins

Consider principal caregiver issues. Is it necessary to challenge the presence of a person during s18 examination?

Ensure the Judge has properly concluded the examination and moved to decision/hearing/adjournment

Request permission to lead the client if there are factual matters the client wishes to present but is having trouble explaining either in the initial discussion with the Judge or after the Doctor and the second health professional have presented their evidence.

Cross examine generally or as specifically directed

Consider submissions as to

immediate order

adjournment for defended hearing

adjournment for section 21 report – social work or second medical opinion

first and second limb issues

Debrief the client

Hearings - Review Tribunal 51. Review Tribunal hearings are usually advised a few weeks in advance

Be familiar with Re H [1996] AC 563; [1996] 1 All ER 1 adopted

Follow standard guidelines as to initial meeting and file examination

Uplift a copy of the written material made available to the Review Tribunal pre hearing.

Summarise the evidence

Meet with client and take instructions forthwith

Prepare as for Court hearing

Explain to client the Tribunal process and the likelihood of each member of the Tribunal asking a range of questions

When a Review Tribunal occurs, the Team Leader is to be called in advance as to when Hearings are held.

That the Team Leader gets hold of the list to check who was the patients lawyer to see if patient wants that lawyer to attend/act for them or whether they would like another lawyer to represent them.

Hearings - Cross examination 52. Cross-examination should be checked with the client for approval. The

following areas should be measured:

Consider the strength and source of evidence supporting the application. (Question an adjournment to clarify evidence under the Court’s inquisitorial role if evidence unreliable and prejudicial)

Clarify the history of unwellness. If it is a first admission or little medical contact. Consider a second medical opinion.

Clarify diagnosis and match to the first limb of the section 2 definition

Examine level of “seriousness” as to stated second limb. Is the application based on self care, dangerousness or both

Clarify need for medication and any side effects

Clarify discharge plan

Clarify the community option. Can the client be treated adequately as an outpatient? Call evidence if available as to adequacy of community situation (section 28 (2))

53. Follow all usual rules of cross-examination including presenting conflicts to be

raised by your witnesses with the doctor and second health professional. Submissions 54. In the light of the large volume of Family Court decisions now available under

the Act it is helpful to have brief written submissions on matters of law in adjourned defended hearings. There are usually a few weeks for preparing for Review Tribunal matters and this should result in quality submissions from well-prepared counsel.

Mason Clinic 55. A lawyer appearing at the Mason Clinic should make contact with any counsel

engaged in active criminal files. The approach to and timing of an in patient order may be relevant to the conduct of the criminal case and this issue should be explored unless the client specifically instructs otherwise.

As the responsible clinician usually prepares an extensive written report for

Mason Clinic hearings including a s16 hearing, it is important to allow adequate time to access the report before the hearing and clarify any relevant material that is challenged by the client.

Lawyers should make appointments to meet with clients rather than simply

arriving at Mason Clinic. Legal Aid 56. A proper use of Legal Services Agency forms and guidelines will result in

prompt payment.

Note the following:

Investigation of financial circumstances is likely to prejudice obtaining instructions and in the context of a mental health hearing is not required

Use the correct forms

Use the correct account format

Follow the guidelines on the LSA Mental Health “Steps for proceedings” available on the LSA website.

Present the account and application at the same time following disposition with copies of the relevant application papers