The constraints on the District Court system have become so severe that resource management “has become more akin to a disheartening exercise in robbing Peter to pay Paul.”
That’s according to Chief District Court Judge Jan-Marie Doogue, who detailed the dire situation of the system she oversees in a strongly worded piece first released through the New Zealand Law Society.
The chief judge said that she has decided to redeploy judicial resources from the criminal jurisdiction to the Family Court to stem a pressure on workload that has become unsustainable.
“From October, up to 100 judge-days a month will be diverted to the Family Court from the criminal jurisdiction. This is estimated to generate capacity for up to 120 more defended Family Court hearings a month, depending on how the resource is divided between long-cause and short-cause hearings and settlement conferences,” she said.
However, increasing delays are expected in the criminal and civil side as a result.
“This is regrettable when we were making a significant dent in jury trial time frames. The fear is that those gains will unravel as a result. However, within the policy and funding framework I must work, this step has become unavoidable,” she wrote. “As the second biggest division of the District Court, the Family Court is under enormous strain. It deals with the most basic rights to care, shelter and protection for our most vulnerable New Zealanders, be they mentally unwell, elderly, domestic violence victims, abused and neglected children or those families being torn apart by intractable contact and custody disputes.”
She said that many of those affected find themselves in the court system through no fault of their own, having committed no crime.
“They are entitled to certainty in their lives, especially the children,” she said. “It is essential that the public retain confidence in the Family Court. I trust that with the support of family law practitioners and the understanding and patience of the criminal bar, the District Court will weather these adjustments.”
A confluence of factors has brought the District Court to its current situation, the chief judge said. That’s even as the courts’ divisions take advantage of new technological advances such as audio-visual links and bespoke scheduling and rostering tools to make the whole system more efficient.
Even as these efforts have yielded results, including reducing the duration of jury trials, the system is still being squeezed.
“Care of Children Act (COCA) applications account for the biggest number of applications in the Family Court. While overall the number of new applications is falling, the proportion of the most time-hungry of these – defended COCA applications – is on the rise,” she said. “At the end of March this year there were more than 8000 active defended COCA cases – 27 percent more than in early 2016.”
Much of the problem can be traced back to the 2014 Family Court reforms, she said, which have had major impacts on timeliness.
More and more applicants are using the without-notice track to ensure their cases go directly to a judge and they can have a lawyer in court with them, she said. The urgent applications are given priority, but they have also resulted in more pressure on resources.
“The struggle to reduce delays has become even tougher since a law change early last year ushered in new restrictions on judicial numbers. What is effectively a sinking lid on the judicial workforce is starting to bite,” she said. “On average, the District Court is losing judges at the rate of one a month. Our number will have fallen from 179 at a peak last year to 167 by the end of May and we are still well over the new statutory cap of 160.”
The shrinking judicial workforce, increasing complexity and seriousness of criminal cases, and the increase in without-notice applications and defended applications have all placed unsustainable pressure on workloads, Doogue said.
She acknowledged that while the situation is hard on judicial officials and court staff, it is harder for families, who have to deal with increasing delays especially in the Family Court.
“Something has to give,” Doogue said.
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