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Presentation Handout 11 March 2008
Presentation Handout 11 March 2008
The Parenting Hearings
Programme
Halfway through its pilot: a view from the bar
01 Title slide
Berry Zondag
LLB(Hons) BBS MMGT PGDBA FAMINZ(arb) MAANZ
zondag@ihug.co.nz
Survey context
– PhD study, with the thesis titled:
“The Parenting Hearings Programme Pilot
in the New Zealand Family Courts:
constitutional, philosophical, legal and
practical issues with a semi‐inquisitorial process
in a common law system”
02 Survey context
My study involves a narrow topic, part of the process that may be involved in determining
disputes between parents about the care for their children after separation. Nevertheless, the
sheer number of these disputes makes the topic highly relevant, despite the fact that only a
small number actually make it to a formal determination by the Court.
Current social and psychological thinking (although increasingly debated for continued conflict
situations) holds that it is in the best interest of the children to maintain some meaningful
relationship with both parents, and this has effectively been cast into legislation, and is certainly
the presumption used in judicial determination, bar exceptional situations, such as those
involving child abuse, violence, mental disorders, severe substance abuse etc. In other words,
policy objectives ask parents to bridge their irreconcilable divides to satisfy this social objective.
In the majority of cases that seems to present only minor problems, and those can be overcome
by the parents, although statistics suggest that a majority do seek some sort of court
involvement.
For some parents, however, the dynamics of the conflict between them or the total lack of any
empathy or cooperative relationship make it impossible for them to achieve this objective
autonomously. Ultimately such problems present themselves to the courts. It appears generally
accepted that the legal process (and especially the adversarial version) is not helpful, or even
exacerbates the frictions between the parties. This is the background of legislative and judicial
attempts to create alternative or adjusted procedures that are thought to be less disruptive to
the cooperative goal. The PHP is an example of such an attempt.
2
Thesis: theories informing study
– ADR theory and methodology:
– Justice without law or “bargaining in the shadow of the law”
– Mediation v litigation, or is that an unhelpful dichotomy?
– Socio‐psychological context; the field of conflict theory:
– Why do people fight and how do they do it, the structure of conflict
– The role of power and control
– Emotion v substance, or is that an unhelpful dichotomy?
– Continental inquisitorial process; Dutch Law and legal
theory:
– Adversarial v inquisitorial process, or is that an unhelpful dichotomy?
– Constitutional theory:
– Natural justice, the rule of law and a court’s powers to fundamentally
amend its process
– Law v ‘judicial leadership’, or is that an unhelpful dichotomy?
03 Theories informing study
Thesis: approaches
– Social, psychological and legal context of divorce and
post‐separation parenting
– The perceived problem: (adversarial) legal process and
its effect on post‐separation family dynamics
– Policy responses in New Zealand and abroad, the
developing views of judicial authority
– Comparison between the Australian CCP (now LAT)
and the PHP; law, process and surrounding
infrastructure
– Evaluate PHP using the theories informing the study
(theoretical) and against its own objectives (practical)
04 Approaches
3
PHP Evaluation in my study
– Theoretical perspectives:
• ADR, conflict theory, civil systems, constitutional issues
– Practical perspectives:
• Court observation in PHP cases
• Discussion with professionals involved
• PHP file study to obtain quantitative data
• Surveys of family law practitioners
– November 2007 and November 2008
05 Evaluation in study
Why survey family law practitioners?
– Fast and effective
– Professional comparison of PHP with the ‘old
process’
– Unbiased re the outcome of the study
– Not affected by facts and outcome of individual
cases
– Fine‐grained comments/observations in addition
to statistical material
06 Why survey practitioners
4
Method
– Emails to all available email addresses of family law
practitioners (N=735), with one‐week reminder
– Link to website with anonymous survey forms
– Questions in topical ‘blocks’
• General and specific, some for PHP lawyers only
• Random order of questions in each block (‘narrative bias’)
• ‘Likert scales’
• ‘Open’ questions allowing for individual comment
(qualitative)
– Total number of participants 156 (21%)
07 Method
Respondent sample details
25‐ No
50‐
> 8 50
75
08 Sample details
5
Respondents’ PHP knowledge
I have heard or read about it, but would have
42 %
to look into it if I got a PHP case
I am acquainted with it 22 %
I am confident that I know enough about it 35 %
I am an expert 2 %
• 95% of those “confident” or “expert” had acted in PHP cases
• 5% of those with no actual PHP experience were “confident”
• One practitioner with PHP experience desired to obtain more info
CONCLUSIONS:
• Practical experience is currently the way to gain PHP knowledge
• The PHP process itself is not very complicated
• The quality of the available information about the PHP is limited
09 PHP knowledge
Sources of PHP information
100
90
80
70
60
50
40
30 No PHP Exp
20
10 PHP Exp
0
10 Sources of information
6
Quality of PHP information
VERY GOOD
C.I. C.I.
# Item x
low high
11 Quality of PHP information
This table shows the practitioners’ opinion about the quality of information about the PHP as
obtained from the Family Court (FC) organisation and/or the Law Society (LS).
Quality was scored on a scale from very poor (1) to poor (2), average (3), good (4) to very good
(5). The table gives the mean of the scores (total of the scores on each topic, divided by the
number of responses on that topic).
It also provides the low and high values for the 95% confidence interval (the range in which the
average would statistically be expected to fall in 95/100 similar samples from the same
population).
The figure presents these numbers in graphical format. The fat horizontal bars represent the
mean, while the thin vertical bars show the confidence interval. The dots at the ends of the
vertical bar show the location of the low and high values of that range.
As can be seen, the information emanating from the Family Court scores higher on all aspects,
although this difference was statistically significant on only two of the three aspects.
The low scores overall indicate that practitioners would probably welcome some improvement
of the information supplied by the court, and it seems advisable to achieve that before a further
‘roll‐out’ of the programme.
It appears that the Law Society should also improve its supporting role in this respect. Given
the results of the previous question, briefing sessions that allow for practitioner interaction and
that would involve both theoretical and practical approaches (i.e. ‘role play’ or ‘mooting’)
appear to be the best way to achieve that.
7
The disadvantages of the adversarial
process
STRONGLY
AGREE
Agreement with the following C.I. C.I.
# x
low high
statements:
AGREE
The adversarial court process
1 often escalates conflict between 3.98 3.85 4.11
parents
NEUTRAL
The adversarial court process
may seriously damage the
2 3.79 3.65 3.94
relationship between children
and one or both parents DISAGREE
The adv court process often
results in a worse relationship
3 between the parents, 3.41 3.24 3.59
destroying any chance of STRONGLY
DISAGREE
reaching agreement later on 1 2 3
12 Disadvantages of adversarial process
The argument by which the PHP is promoted starts with assumptions about the disadvantages
of the adversarial process, followed with the observation that the process needs to (re‐)focus on
the interests of the children. The argument then proceeds to presume that these problems can
be cured by changing the role and powers of the judge, which will (it is suggested) also lead to
increased speed, more flexibility and less formality. The argument is then concluded by
referring to the successful pilot in Australia and its subsequent nationwide introduction,
apparently suggesting a default position whereby New Zealand should invariably follow
Australia’s lead in these matters.
This was tested by asking all the respondents to rate their agreement with a number of
statements, and to do this by ‘scoring’ on a scale from ‘strongly disagree’ (1) to ‘disagree’ (2),
‘neutral’ (3), ‘agree’ (4) to ‘strongly agree’ (5).
The table and graph above show the results for three statements about the adversarial process.
The table provides the mean score and the range for the confidence interval. The figure
represents these numbers graphically.
As can be seen, there is substantial support for the suggestions about the perceived
disadvantages of the adversarial system. However, the text responses provide many nuances to
the generality of the statements that had been given to respond to. It is instructive to include a
selection of some of the comments:
8
…There are elements of both the inquisitorial and adversarial systems that are useful in the
context of resolution of parenting disputes as are elements of social science, child development
etc. It is not as simple as one system being better for these sorts of disputes than the other…
…It is not easy to say that "all" cases are made more difficult by adversarial process, some parties
and families require it and it can therefore lessen conflict for children by having a "hearing" and
formal determination by evidence and cross examination…
…In my experience, it's the parents more than the Court process that's adversarial…
…Sometimes people need their day in court and can move on from there…
…The adversarial process begins because the parents are already in serious disagreement so the
process cannot be entirely blamed; sometimes but certainly not always a hearing can be quite
cathartic for parents and their relationship may improve thereafter. Important decisions need to
be made with all the facts known whatever the system, this has to be the bottom line the main
problem with current system is slowness of decision making and that is simply an under resourcing
issue as with most government provided services…
…There are some matters where a very short, focused hearing and a quick determination is either
less damaging or more appropriate than attempts at consensus that are unlikely to succeed. Such
cases include where there is already a very high level of conflict between the parties or when
urgent interim orders need to be made…
…There are cases where the 'bloodletting' experience of the court allows the parents to simply get
it out of their system; the more unpleasant the experience the more likely they are to never want to
go back there again and to force themselves to adopt a more reasonable approach…
…Getting the adults before a judge earlier so that they can vent their spleen and then get on with it
is important. Having them wait for months and running them through hoop after hoop of well
meaning but basically empty warm fuzzy nonsense doesn't help….
….Retribution for perceived wrongs, petty point scoring and thereby an element of control over the
other parent often seems to be the desired outcome. Unfortunately the children’s interests become
submerged in an effort to establish 'bragging rights'. The parents often have a soap opera
mentality to such disputes and seem to thrive on conflict and confrontation….
…It is an easy assumption to make, that the adversarial process makes things worse, when in fact
the quality of advocates and wisdom of judge are significant factors in making the outcome
positive.
…I have often considered that the lawyer, who has to win at any cost, is the one who does more
harm to the parties and their children, rather than the process per se….
…Whether by adversarial or inquisitorial process, some parties are in strong conflict and unlikely
to change their views. Others are more willing to separate their own issues from what will be best
for the children involved. By either process they are more likely to have better outcomes…
…It needs to be remembered that the parenting issues resolved by adversarial hearings are for the
most part the intractable ones that are probably not amenable to more mediatory styles of
resolution. The alternative processes must be available and offered but if they are not successful
the sooner an "adversarial" decision is made the lesser the trauma to all involved…
9
Is changing the role of the judge the
solution to that problem?
STRONGLY
Agreement with the following C.I. C.I. AGREE
# x
low high
statements:
The way to resolve problems with
the adversarial process is by AGREE
1 changing the court process, 2.91 2.74 3.07
specifically the role of the judge
Judges should have more control of
2 proceedings, by way of case 3.44 3.28 3.59 NEUTRAL
management
Judges should have more
3 inquisitorial powers and decide what 3.43 3.24 3.62
further evidence may be required DISAGREE
Judges should have more power to
decide what issues are relevant to
4 the case, and not leave this to the 2.74 2.57 2.92 STRONGLY
DISAGREE
parties and their lawyers 1 2 3 4
13 Changing role of the judge
The responses show that practitioners do not agree with the general proposition that changing
the role of the judge is the solution to the problems assumedly caused by the adversarial
system. There is support for extended powers in respect of case management and some
additional power to decide what further evidence is required. However, the next step, real
inquisitorial powers is rejected. Some of the remarks from respondents:
…I have a serious issue as to the Judge having the ability to determine what evidence should or
should not be called. Whilst I appreciate that there is a lot of unnecessary and irrelevant evidence
filed under the present system if the Judges were more active in making rulings to strike out
evidence that is opinion, submission or irrelevant then many of the current problems with the
current system would be addressed…
…The role of a lawyer cannot and should not be minimized in their relationship with their client,
particularly ascertaining the client's legal issues. This relationship cannot be superseded by
Judges, as their role does not include dealing direct with clients!...
…Judges can easily miss important issues particularly when dealing with those of a different socio
economic position in life to themselves (common) and a different ethic, cultural back ground
(happens often) therefore they can shut out very relevant issues pertaining to the welfare of the
child etc. Lawyers cannot always advocate to the judge the relevance of issues fully without being
able to present evidence in support of their argument, and yet they must make such arguments
before, not after, producing any such evidence. Judges may need considerable persuasion from a
person such as an expert witness to credit relevance to issues which in their world has no such
relevance…
…Giving the Judge's more power and control over evidence and other aspects of the process may
have administrative benefits but they can never know as much about the issues as the lawyers do
and if decisions are made on insufficient evidence then that will prevent parties accepting the
decision and that in itself may lead to further conflict between the parents and/or the children….
10
Other options?
STRONGLY
AGREE
Agreement with the following C.I. C.I.
# x
low high
statements:
AGREE
There could be other ways to
resolve problems with adversarial
process, for instance by providing NEUTRAL
more judicial and administrative
1 capacity or increasing the use of 3.73 3.58 3.88
modern technology, without
changing the fundamentals of the
existing process DISAGREE
14 Other options
The respondents agreed that there might be other options to resolve the problems with the
current system. The many remarks provide some core issues, such as adherence to rules of
evidence, resourcing, processing times and case management:
…If there was a greater adherence to the laws of evidence and procedure, and legislative
timeframes, the adversarial process may work better than it does now. At present, the main issue
is delay, and the most positive thing to come out of PHP is that matters get dealt with relatively
quickly. In my experience it is delay and the Court failing to move matters to a hearing that is the
most damaging to the relationship between the parties and their children…
…Court processes correctly applied and followed, and court time made available promptly and not
weeks or months after it is really required would remove a lot of the difficulties. The maxim justice
delayed is justice denied is highly pertinent…
…When I compare the facilities and resources available in the employer/employee relationship
(The Authority and the Court) I am dismayed at the funding available to the family, in the Family
Court…
… We should be reluctant to throw it [the adversarial system] away on a whim. Proper procedure
needs to be put into place so there is consistency; proper evaluation needs to be done…
…Most Family Court Judges are good at sorting out issues, especially involving children. The big
problem I see is that there is not enough Judge time available. It can take six months to get a
hearing regarding contact, and counseling and mediation often will not work at all in the
meantime where one party will not budge. The standard processes may be fine, if sped up. Where
Judges handle list dates, matters are not so bad, because interim orders can be made, but
Registrars are not equipped to handle this…
11
PHP experience in the sample
Lawyers
Family Courts in which
% %
Cases
PHP experienced
Dun
Auckland 22 37 50 30 Rot
Palmerston North 4 7 8 5 Well
Taur
Tauranga 13 22 32 19
Palm
Wellington 13 22 38 23
Auck
Rotorua 5 8 15 9
Lwrs
Cases
Dunedin 6 6 23 14
• 66 respondents had PHP experience in a total of 190 cases
• Highest no. of cases for individual lawyer was 8; 72% had acted in 1‐3 cases
• 59% acted mostly for parties, 22% mostly as L4C, 29% had evenly mixed roles
15 PHP experience
The next part of the survey sought opinions from practitioners with PHP experience, i.e. wo had
acted in PHP cases. The table and graph show the PHP experience in the sample.
(Note that the case numbers don’t add up to the exact total number, this is because it could not
be ascertained for all cases in which court the cases had been heard, also note that more then
one practitioner may have responded referring to the same case)
As of yet, there are no statistics available from the Court or the Ministry, but it seems that a
representative sample has been obtained for this study.
There are certainly enough respondents with experience in enough cases to validate the data
about the actual experiences with the process as follows.
12
The assertions used to promote the
PHP process
STRONGLY
AGREE
Agreement with the following C.I. C.I.
# x
low high
statements:
AGREE
The PHP represents a much
better environment for deciding
1 3.03 2.78 3.29
what is in the best interest of
NEUTRAL
the children
The PHP process will result in
2 3.68 3.40 3.96
cases being decided much faster. DISAGREE
Because of the judge’s direct
control, the parties stay focused
3 3.27 3.00 3.54 STRONGLY
on the children rather than on
DISAGREE
the parents' issues. 1 2 3
16 Assertions used to promote PHP / 1
The assertions used to promote the
PHP process
STRONGLY
Agreement with the following C.I. C.I. AGREE
# x
low high
statements:
The PHP process guarantees an
4 2.43 2.21 2.65 AGREE
outcome that will last longer.
The PHP process guarantees an
5 outcome that is better accepted 2.72 2.50 2.93
by the parents. NEUTRAL
The PHP process guarantees an
6 outcome that is better for the 2.66 2.42 2.91
children.
Once parents have been through
DISAGREE
a PHP process they will in the
7 future be better able to resolve 2.65 2.45 2.85
issues between themselves
without assistance
STRONGLY
The PHP process complies with DISAGREE
8 2.45 2.18 2.73 4 5 6 7 8
the rules of natural justice
17 Assertions used to promote PHP / 2
13
…I am not suggesting that the adversarial way is the way that is always appropriate, however
there are many circumstances where there just needs to be a hearing and I have real concerns that
the PHP programme and the processes involved under that system are just not constitutional…
… I do have concerns about the PHP being a de facto mediation but where the Judge makes orders
at the end…
…The adversarial process has its faults particularly when parties take inflexible positions and
parenting matters remain unresolved for long periods. However there is a need to balance the
powers of the court to intervene with the rights of the parties to be fully heard and properly
represented in any judicial process…
…the clients are railroaded into settling, often without the chance to cross examine psychologists
or social workers or anyone else it appears that fundamental dynamics between parties are being
missed (e.g. alienation vs. violence power and control etc) by such urgent early assessment of
issues controlled by the judge who has never met the parties before or only briefly… the rules of
natural justice are being breached…
…parents who have been stymied from airing their grievances on the basis that the judge doesn’t
think they are relevant may well have unresolved issues that will appear later. Communication
between judges and clients directly can be very poor; judges don't necessarily understand the lingo
clients speak…
…Is this [the PHP] good enough for long term decisions impacting on children? I think our children
deserve better…not being able to cross examine parties is not appropriate...
…The PHP is specifically supposed to include cases involving allegations of abuse and violence,
especially where commenced by a without notice application. These cases are complex and require
proper determination of facts. The PHP process is not suited to those types of cases and in my view
can result in unsafe outcomes because the process is inadequate…
…PHP hearings particularly disadvantage victims of domestic violence and those who are
inarticulate or powerless. They are a vehicle whereby Judges can conveniently ignore power
inequalities and deny relevant evidence in the name of judicial expediency…
…The major concern expressed by many counsel, in my experience, is that natural justice issues are
not always addressed this has not been resolved and may lead to a situation where there are
more appeal proceedings…
…The PHP hearings programme is all about Judges and increasing their power …It goes against
the principles of natural justice…
…I thought the PHP process was just great like mediation with teeth…
…It is a big positive, because the defended hearing process is ridiculously slow, often increasing
volume of evidence as things happen between issuing proceedings and getting to defended
hearing…
14
The assertions used to promote the
PHP process
STRONGLY
AGREE
Agreement with the following C.I. C.I.
# x
low high
statements:
AGREE
The PHP process improves the
9 3.38 3.10 3.67
parties’ ability to have their say
NEUTRAL
The parties appreciate the
10 possibility to directly address 3.85 3.67 4.02
the judge
DISAGREE
The direct interaction between
the parties and the judge
reveals that issues are often
11 3.25 2.99 3.51
less extreme than they appear
STRONGLY
in affidavits and written DISAGREE
statements 9 10 11
18 Assertions used to promote PHP / 3
The assertions used to promote the
PHP process: conclusions
Practitioners experienced in PHP hearings opine:
– Notable disagreement with the main outcome
assertions underlying the PHP process
– Too much sacrifice in procedural safeguards, in
order to gain relatively minor advantages
– Main advantages are speed and direct interaction
between parties and judge, but these may be
achieved by amending the existing process
19 Assertions used to promote PHP / Conclusions
15
The changes introduced by the PHP
process
STRONGLY
Agreement with the following C.I. C.I. AGREE
# x
low high
statements:
The PHP process devaluates the role
1 of the parties’ counsel. 3.02 2.76 3.27
AGREE
The PHP process increases the role
2 of the children’s counsel. 2.98 2.73 3.23
It is appropriate that the Judge can
switch between different modes of NEUTRAL
3 operation, i.e. mediation and
3.17 2.85 3.50
adjudication.
The time limits imposed by the PHP
4 process are adequate to deal with 2.74 2.45 3.03
parenting disputes. DISAGREE
Other agencies or professionals,
such as report writers, can comply
5 with the time limits set by the PHP
2.39 2.16 2.61
process.
STRONGLY
The legal services agency can DISAGREE
6 adequately deal with the constraints 2.60 2.36 2.85 1 2 3 4 5 6
set by the PHP process.
20 Changes introduced
Changes in the roles of counsel and
judge: division of opinion
Strongly
The PHP process Disagree
devaluates the role of
parties' counsel Disagree
The PHP process Neutral
increases the role of
children's counsel
Agree
It is appropriate that the
judge can switch beween Strongly
different modes Agree
0% 50% 100%
21 Role changes, divided opinion
16
The ‘strategic’ objectives of the PHP
project
STRONGLY
Agreement with the following C.I. C.I. AGREE
# x
low high
statements:
The PHP process is a genuine
1 attempt to provide better outcomes 3.82 3.68 3.95 AGREE
for parents and children
The PHP is an attempt to reduce the
2 costs of the Family Court system 3.52 3.38 3.66
The PHP is an attempt to force NEUTRAL
3 parents to comply with government 2.65 2.51 2.80
policy objectives
The PHP will lead to further
dominance by social agencies and
4 reduce the role of lawyers, to the 2.82 2.65 2.98
DISAGREE
detriment of justice
The PHP will provide better access to
5 justice 3.03 2.87 3.19
STRONGLY
Inquisitorial process should have no DISAGREE
6 place in our common law system 1.96 1.84 2.08 1 2 3 4 5 6
22 The strategic objectives
The objectives of a programme such as the PHP include process‐outcomes, such as faster
resolution of cases, less disruption to parent‐ and parent‐child relationships, or creating
arrangements that are more durable. Another category of objectives may be termed
“underlying objectives” or perhaps “strategic objectives”, i.e. objectives that the programme as a
whole seeks to achieve, apart from its impact on individual cases. Examples of such outcomes
are reducing the costs of the court system for dealing with parenting dispute, improving access
to justice, enforcing government policy etc.
The PHP briefing paper and other information do not state what these strategic objectives may
be, and are indeed more concerned with process outcomes.
In order to obtain opinions from family law practitioners about possible other underlying
objectives, a block of statements was offered to all participants, to be rated on a scale from
strongly disagree (1) to strongly agree (5). The accompanying instruction was: “In order to
investigate your views on the objectives underlying the PHP experiment, could you please indicate
your agreement with the following statements:” The results are represented in the table and
graph above.
17
Pilot projects generally, and the PHP
pilot specifically
STRONGLY
Agreement with the following C.I. C.I. AGREE
# x
low high
statements:
There should be no place for
1 experiments in the Courts at all. 2.21 2.06 2.36 AGREE
Important rule changes should be
2 brought about by legislation only. 3.23 3.05 3.41
The PHP process affects substantive NEUTRAL
3 justice. 3.21 3.05 3.37
The PHP pilot is well executed in
4 practice 3.00 2.87 3.13
DISAGREE
The PHP process and pilot have been
5 introduced ultra vires 3.08 2.92 3.24
The pilot is a farce, decision has STRONGLY
DISAGREE
6 already been made to introduce this 3.08 2.92 3.25 1 2 3 4 5 6
process
23 Pilot projects
The next block of questions (presented to all participants) addressed the use of pilot projects
generally and the PHP pilot specifically. The instruction was: “In order to investigate your views
about the use of pilot projects in the Family Courts, could you please indicate your agreement with
the following statements”. The results are found in the table and graph above.
There is little problem with some experimentation in the Family Court, albeit tempered by the
importance of the innovation being tested.
Practitioners thought that the PHP process affected substantive justice, which, in combination
with the low score on the natural justice issue, gives reason for some concern.
The last three items scored almost neutral, but like on the items about the changing roles of
lawyers and judges, these neutral scores hide a divided opinion. This can again be expressed
graphically:
18
The PHP pilot: division of opinion
Strongly
The PHP pilot is well Disagree
executed in practice Disagree
The PHP process and pilot Neutral
have been introduced
ulra vires
Agree
The pilot is a farce, a
decision has already been Strongly
made to introduce PHP Agree
0% 50% 100%
24 PHP pilot, divided opinion
For such an important innovation as the PHP, one would have hoped for a high score on the
first, and very low scores on the last two questions, especially because the briefing information
emphasises the importance of practitioners “buying into” and supporting the PHP process, and
“becoming skilled” in explaining the process to their clients and guiding them through it.
In conclusion, the respondents are still “sitting on the fence” in rather large numbers, and those
who have opinions are equally divided in them.
The free text comments on the pilot process contain some clear opinions, some of which are
collected below:
…It is good that things be tried. However, using actual parties in test runs makes guinea pigs of
them, which may be unfair for them, especially if the test system then proves to be flawed…
…'Experiments' ought to have a legislative basis…
…As far as I am aware it fits within the Care of Children Act framework. I have to believe the
powers that be, that it is a pilot....nothing else…
…The court does have some jurisdiction to control its processes. I generally support pilot
programmes and believe that family court is an evolving process that is what it should be always
seen as. The needs of children change, as do needs of families. If there is an element of
experimentation, that is not all bad. What is bad is the potential for a lack of truly independent
appraisal of those pilots…
…The PHP was introduced in haste and without adequate consultation with the legal profession
and with the wider community. At the time it was introduced it should have had a very clear
arrangement in place to monitor the programme and the outcomes of the programme.
19
…The profession should have been involved at the earliest stage of planning. Clearly, planning
decisions and implementation was a fait accompli as if we were children who needed to be
managed. We have strong constitutional and jurisdictional issues which should have been
canvassed thoroughly and no excuse such as getting it quickly into operation should again be
used…
…There is a place for innovation and improvement in Family Court processes. "Experimentation" is
a strong word, but I do consider the PHP to be experimentation because of the lack of consultation,
inadequate conceptual framework, lack of monitoring and evaluation, and differences from the
Australian system (which requires "buy in" from the parties, as opposed to the NZ system which is
imposed on the parties)…
…THIS IS NOT A PILOT….there must be monitoring set up first to watch how a pilot is going…
…We always need to look at different ways of improving access to justice. We constantly need to
examine ourselves and the system that we are working under. It is very important to bring all the
stakeholders along with any new system, but there will always be detractors. Lawyers on the
whole are very conservative but we are interested in justice and it is crucial to society that justice
is accessible. But any new scheme must be openly debated; views of stakeholders listened to and
principles of natural justice adhered to. Importantly independent evaluation must be carried out
from the inception of any new system. In NZ there is virtually none of this…
…What happened to public consultation or at least participation/consultation of family lawyers
prior to the pilot being implemented?...
...I am concerned that the Australian model appears far better resourced, particularly in terms of
the quality and training of Family Court counselors, than the NZ pilot. The NZ pilot seems to be a
poor cousin of the Australian system, and I cannot see how the system will work to its optimum
without evidence from highly skilled social science practitioners. In pure theoretical terms
inquisitorial processes and adversarial processes are problematic when merged. However in
reality all Judges are inquisitorial to some extent and particularly so in the Family Court….
…there are very real concerns that a process put in place without adequate consideration and
without sufficient checks and balances will not deliver appropriate longterm positive results for
the subjects of the proceedings. The inquisitorial system is highly dependent on the quality of the
tribunal, and that leaves real risks where that is inadequate…
…The PHP is imported from Australia but the essence has been taken out of it. I believe that is a
genuine attempt to provide better outcomes but the cynical part of me also thinks that it is a way
to make "figures" look better for a number of agencies. This system is not government led as far as
I am aware…
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The PHP: overall conclusions
– The picture that emerges is not overwhelmingly
positive
– Agreement that adversarial process has
disadvantages.. ....BUT........practitioners NOT
convinced PHP will cure these shortcomings
– Support for extending role of judge:
• case management
• determining what further evidence may be required
– No support for extended ‘inquisitorial’ powers
25 Overall conclusions / 1
The PHP: overall conclusions
Practitioners report that:
– Direct interaction parties‐judge:
• helpful
• appreciated by clients
– Doubts about standards of natural justice
– Question: Is it necessary to replace the current
system, if the problems are:
• resourcing
• case management
• tighter control of evidence (as per rules)
– Maybe other solutions available?
26 Overall conclusions / 2
21
The PHP: overall conclusions
Practitioners report that:
– Uncertainty about:
• impact character of individual judges
• lack of uniformity between approach of judges
– Too hard for judge to come to grips with case in
time available
– Judges may lack understanding about the realities
of the parties, but the process requires it
– Relationship judge‐party is very different from
that of lawyer‐client.
27 Overall conclusions / 3
The PHP: overall conclusions
– Room for improvement:
• information exchange Family Court ‐ practitioners
• Supporting role Law Society
– Insufficient consultation with the specialized
profession prior to PHP launch
– PHP objectives perhaps too ambitious: have the
potential advantages been ‘oversold’ ?
28 Overall conclusions / 4
22
The PHP: overall conclusions
– Can PHP be validly compared with the Australian
CCP (now LAT), so as to claim similar advantages?
• different infrastructure and organization
• different budgets
– Doubts:
• is the PHP and its pilot constitutional / intra vires
• is the matter pre‐determined anyway
• quality of the pilot process
• lack of clarity about PHP evaluation
29 Overall conclusions / 5
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