Professional Documents
Culture Documents
The Parenting Hearings
Programme half way through
its pilot:
A view from the bar
By Berry Zondag, 1 PhD candidate University of Auckland
This paper is a summary report of the results of a survey of Family Law Practitioners, conducted
in November and December 2007. This survey is part of a research project provisionally titled
“the Parenting Hearings Programme Pilot in the New Zealand Family Courts: constitutional,
philosophical, legal and practical issues with semiinquisitorial process in a common law
system”. A more detailed analysis of the survey will be published as part of the thesis.
Introduction
My PhD project is concerned with a narrow topic, a part of the court process that may be involved in
the resolution or determination of disputes between parents about care for their children following
separation. Parenting disputes make up the majority of litigation in the Family Court.2 Parenting
conflict is a source of considerable debate among those professionally involved in these often
emotional and difficult disputes. Current social and psychological thinking holds that it is generally
in the interest of the children to remain in positive relationships with both parents and the
associated wider family, after their parents have decided to terminate the close and intimate
relationship they once shared.3 The strength of this thinking is such that it has effectively been cast
in legislation,4 and it is certainly embedded in judicial decision making. In a sense therefore,
government policy asks separated parents to bridge their irreconcilable divides in order to create
suitable arrangements to accommodate this societal objective.5 Although it is said that most
divorcing partners are capable of achieving this autonomously, statistics seem to indicate that a very
large proportion of separating parents engage in some way with the services of the Family Court.6
However, only a small fraction of the cases entering the court system by way of some parenting
related application actually make it to the stage of a court hearing and subsequent formal judicial
intervention.7 At that point, but assumedly throughout any interaction with the Family Court, the
statutory direction of paramountcy for the welfare and best interests of the child comes decisively to
the foreground.
It seems generally accepted that legal process (and especially its adversarial variant8) often
exacerbates tensions between the parents and thus works against the creation or enhancement of
the accommodating mindset that is required to come to, or implement, workable parenting
arrangements. This is the motivation behind legislative, regulatory and judicial attempts to craft
dispute resolution or determination procedures that are less disruptive to the desired ‐cooperative‐
goal. The Parenting Hearings Programme (“PHP”) is an example of such an attempt.
2
On 1 November 2006 the Family Courts Auckland, Tauranga, Rotorua, Palmerston North, Wellington
and Dunedin started a two‐year pilot to test the effectiveness of the PHP proposal.9 The main
characteristics of the PHP are the introduction of more efficient and less adversarial proceedings,
specifically for matters dealing with parenting issues. This is sought to be achieved by rigorous
changes in procedure and by moving the control of the process from the parties and their lawyers to
the judges, who in addition gain the flexibility to adopt different styles of intervention (on a scale
between mediative and adjudicative) and the freedom to switch between these as they see fit. The
programme thus appears to introduce aspects that are akin to the ‘inquisitorial’ style of process
found in Civil Law jurisdictions, or at least the understanding we have of that process.10
A number of questions arise, such as whether the new process can accomplish the objectives for
which it was introduced and how it may be accommodated in a legal system that is firmly rooted in
an adversarial common law tradition, including its associated legal structures and assumptions.
Different perspectives can be used to approach these questions, including comparisons with other
jurisdictions, views based on alternative dispute resolution methodology, or the use of (socio‐
psychological) conflict theory to develop an understanding of the nature and difficulties of the type
of conflict the PHP seeks to resolve. Those mainly theoretical approaches are useful, but lack direct
practical relevance. Alternatively (or additionally) a pilot process such as the PHP can be evaluated
in a more practical manner by recording and analysing substantive decisions, by considering
logistical data, or by surveying or interviewing those involved. In fact, the very concept of a “pilot
project” is that it includes an evaluation, which is a precursor to implementing or amending the
process or policy under trial.11 In Australia, for instance, an external evaluation conducted by Griffith
University was an integral part of the trial of the Children’s Cases Programme (“CCP”),12 which is
often referred to as the ‘Genesis’ of our PHP.13 It must, however, be emphasized that there are
distinct and substantial differences between the Australian and New Zealand programmes in respect
of process and especially their organizational setting. 14
When this paper was written there were no details available about the formal evaluation of the PHP
pilot, other than that it would include both quantitative and qualitative analysis,15 and be conducted
‘in‐house’ by the research and evaluation unit of the Ministry of Justice.16 Very limited preliminary
results of the PHP Pilot have recently been presented by the principal Family Court Judge.17 As it
was apparent that there is a wide variety of views about the PHP process and its pilot amongst
family law practitioners, it appeared appropriate to conduct an independent survey to collect those
views, as part of my wider research project. Equally, it appeared logical to do that about a year after
the pilot’s start. This has allowed sufficient time for the process to have “bedded in”, while it leaves
the opportunity to repeat this exercise at the two‐year mark, in order to gain a longitudinal view.
This paper presents the results of this first survey of family law practitioners in summary form. It
does not seek to completely evaluate the PHP or its pilot process; it is too early for that, and much
more information would be required. What is presented is a comprehensive collection of the views
found in a large and representative sample of the family law bar at this point in time, halfway
through the pilot, with some obvious conclusions.
Method
Publicly available information was used to collect the email addresses of practitioners with a
specialisation in family law (N=735). Although no precise information is available about the numbers
of more or less specialised lawyers acting in the Family Courts, this sample is probably close to the
entire population of those who consider themselves “family lawyers”. The practitioners were invited
to participate in the survey by way of an email message, with a reminder message sent after a week.
The email message contained a ‘link’ to a web site, where survey forms could be accessed and
3
completed anonymously online.18 The responses were captured in a database that was then used to
perform statistical analysis.19
The questionnaire contained a number of general questions, while there were also specific questions
about actual experience with PHP hearings, which were only completed by those who indicated they
had acted in PHP cases. There were also a number of ‘open’ questions, which invited further
comments. Most responses were collected by way of a ‘Likert scale’, i.e. by choosing an answer on a
graduated scale between extremes such as “strongly disagree” and “strongly agree”. The survey
questions were grouped in topical blocks. The questions within each block were presented in
random order to each participant, in order to avoid “narrative biases”. In total 156 practitioners
participated, a substantial (21%), and certainly a representative sample.20
There is, at this stage, a distinct advantage in surveying the views of family lawyers as compared to,
for instance, the parties’ views or analyzing process data such as numbers of cases completed or
processing time. A survey of practitioners is relatively fast, and provides professional opinions based
on a comparison with the traditional process at a relatively early, yet sufficiently ‘mature’, stage of
the pilot. Lawyers are in a good position to assess the merits and disadvantages of the PHP from
various relevant practical, legal and procedural perspectives, without being too influenced by the
outcome. A problem with basing an assessment of a pilot such as the PHP on interviews with the
parties is that their views are likely to be coloured by the outcome in their particular case.21 Parties
normally lack a proper basis to make comparisons, and would naturally have fewer skills to see the
process distinct from their specific fact situation. Furthermore, practitioners can provide additional
fine‐grained opinions and conclusions that may be overlooked in bare statistics. In addition, parties
are emotionally affected by, and involved and occupied in, the court process, which for them
represents an alien environment in which entirely private matters are being decided. Anecdotal
evidence shows that parties’ emotional states can be such that they barely realise they are partaking
in an ‘experiment’. This is particularly the case because, contrary to the Australian pilot, the parties
in the PHP are not asked to consent to participation. For the above reasons, using party‐based
analysis has severe disadvantages that can be avoided by surveying the legal professionals involved.
Respondents
The respondents were experienced practitioners, some indicating they had been in family law
practice for over 25 years. Only 11% of the respondents had less than 3 years family law experience,
14% between 4 and 7 years, and 75% had more than 8 years of family law practice behind them
(N=146).
Parenting dispute takes up a substantial amount of time for those practising family law, with more
than half of the respondents indicating that more than half of their work involves parenting issues.
This statistic indicates that parenting disputes come at a substantial societal cost.22 Not all of
lawyers’ parenting dispute work will be court related, but it may be obvious that better and more
efficient procedures would free up legal and judicial capacity, and would make good economic
sense.23 Table 1 provides the parenting ‘workload’ of the family law practitioners in the sample.
There was no statistically significant correlation between family law experience and the amount of
professional time dedicated to parenting disputes.24
4
Parenting dispute work as a fraction of professional work. %
0 to 25 percent 15
26 to 50 percent 32
51 to 75 percent 31
76 to 100 percent 22
Table 1: Parenting dispute workload/fraction of respondents (n=147).
Information about the PHP process and pilot project
Each respondent had heard about the PHP project, but only a very small number considered
themselves “experts” (2%). Forty‐two percent of the respondents (typically those without PHP
experience) indicated to have to obtain more information if they would have to undertake a PHP
case. This result is not surprising as the pilot is restricted to six courts and the sample was taken
nationally. Twenty‐two percent of respondents were ‘acquainted’ with the pilot project, while 35%
signalled to be ‘confident’ that they knew enough about the PHP process. This last group
overlapped substantially with those who had acted in PHP cases: 92% of those with ‘confident
knowledge’ had actual PHP experience, and only 5% of those who had not acted in a PHP cases
indicated they felt confident about their knowledge of it. Experience is thus seen as an important
aspect of knowledge of the PHP process. Only one of the respondents who had acted in PHP cases
indicated a desire to obtain further information. Apparently, once a practitioner undertakes one or
more PHP cases, they become confident that their knowledge of the process is sufficient. The
importance of experience is probably also an indicator of the limited quality of the available
information (discussed below).
Respondents were asked to indicate by what means they had gained knowledge of the PHP pilot and
process. A textbox entry also allowed respondents to refer to information sources not included in
the question. This prompted some respondents to refer to discussion sessions between bar and
judges, which were organised in the PHP areas. Table 2 lists the various sources of information that
were used.25 An interesting observation is the rather limited use of the Family Court web site, which
indeed contains little specific PHP information apart from copies of the readily available brochures.
Equally interesting is the high percentage of reliance on communicating with colleagues. That the
briefing paper by the Principal Family Court Judge is the most used (and arguably most authoritive)
source is not surprising, although a much higher score than 76% would be expected. While those
with PHP experience have been significantly more active in pursuing information,26 strangely, 17% of
those with actual PHP experience did not mention the briefing paper. When also taking into account
the relatively low overall percentage that refers to the briefing paper, it seems that vital information
about this initiative is not adequately reaching the profession. Another observation is that 15% of
those with actual PHP experience did not mention having seen the PHP DVD, which is assumedly
compulsory for those taking part in the process.27
5
Having traced the information sources, the next question is how these are rated in terms of their
quality. This was broken down into clarity, comprehensiveness and availability. Practitioners were
asked to rate these on a 5‐point scale, ranging from very poor (1), poor (2) through average (3) to
good (4) and very good (5). The following table 3 provides the mean scores,28 their variance29 and
the relevant response numbers.
The Family Court information is consistently30 rated higher than the Law Society information.31 Yet
there remains substantial room for improvement for both. Given that these scores were assessed
by legal professionals, one might wonder how the actual ‘customers’ (the parties, or perhaps even
the children) perceive the quality of information emanating from the Family Courts. It is also clear
that the Law Society is missing important opportunities to assist members with information about
the PHP pilot process. Given the importance of information from other practitioners, the relatively
low score for the actual use of the briefing paper and the impact of practical experience, an obvious
suggestion would be to organise briefing sessions for Law Society members that involve both
‘theoretical’ and ‘practical’ elements, e.g. role play using the knowledge and experience of those
who have already acted in PHP cases.
Assumptions underlying the PHP
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.32
6
The PHP has already been declared a success, embraced by practitioners.33 Nevertheless, the
construction of this argument leaves some questions: whether practitioners actually agree with
these assumptions and presumptions, and with the conclusion drawn; and whether they would
perhaps conceive that there are alternatives to adopting the Australian approach.34 In order to test
this, the following general propositions were rated on a 5 point scale between ‘strongly disagree’ (1)
and ‘strongly agree’ (5). The collected views on each proposition are represented here with their
mean score, variance and number of responses. The question was offered to all participants; the
instruction was to “generally rate agreement with the following statements, without specific
reference to the PHP pilot”.
Agreement with propositions relating to adversarial process and
Mean Var n
ways to resolve its shortcomings.
The adversarial court process often escalates conflict between
3.98 0.59 141
parents
The adversarial court process may seriously damage the
3.79 0.78 140
relationship between children and one or both parents
The adversarial court process often results in a worse
relationship between parents, destroying any chance of the 3.41 1.09 140
parents reaching agreement later on
The way to resolve problems with adversarial process is by
2.91 1.01 138
changing the court process, specifically the role of the judge
Judges should have more control of proceedings, by way of case
3.44 0.82 140
management
Judges should have more inquisitorial powers and decide what
3.43 1.34 140
further evidence may be required
Judges should have more power to decide what issues are
relevant to the case, and not leave this to the parties and their 2.74 1.10 140
lawyers
There could be other ways to resolve problems with adversarial
process, for instance by providing more judicial and
administrative capacity or increasing the use of modern 3.73 0.83 138
technology, without changing the fundamentals of the existing
process
Parenting issues should not be dealt with in court at all, but by a
1.82 0.69 140
social services agency
Table 4: Agreement with PHP propositions and some alternatives, rated 1‐5, mean, variance, respondents (n)
As may be seen, there is strong and quite unequivocal support for the assumptions about the
disadvantages of the adversarial process, especially in respect of its escalating character and (albeit
slightly less outspoken) about the harm done to relationships. There is also agreement with the
assumption of its effect of ‘destroying any chance of agreement later on’. The text responses
provide many nuances to the generality of the given statements about the adversarial process:
“The adversarial process begins because 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”
7
“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”
“There are cases where the 'blood‐letting' experience of the court allows the parents to simply
get it out of their system”
“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”
“Parents often have a soap opera mentality …… 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 the wisdom of judge are significant factors in making the
outcome positive”
“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 less the trauma to all involved”
The presumption that changing the court process, especially role of the judge, is the panacea to the
perceived harms is not supported as a general proposition, scoring just to the negative side of
neutral.35 There is, however, support for some changes in the judge’s role, specifically for stronger
case management and more inquisitorial powers in relation to determining whether further
evidence may be required.
The next step, judicial discretion in deciding what issues are relevant to the case, is rejected.
Comments made in that context emphasize the difference between the relationships lawyer‐client
and judge‐party and the resulting difference in understanding what the real issues are. Cultural and
socio‐economic differences between the judge and parties were cited, as was the risk of sacrificing
thorough fact finding (by way of cross examination, for instance in domestic violence cases) for
procedural efficiency.
“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”
“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!”
“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 problems with
the current system would be addressed”
Interestingly, the proposition that there could be other ways to resolve problems with the
adversarial process finds substantial support, even more so than limited extension of the judges’
powers. In other words, the profession seems rather hesitant to replace the current system without
8
an attempt at trying to fix it. There appears to be agreement about the nature of the problems, but
disagreement about the way to resolve them.
“If there was greater adherence to the laws of evidence and legislative timeframes, the
adversarial process may work better than it does now”
“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”
“The PHP v "adversarial" system is an unhelpful dichotomy ‐ the crux of the issue is funding and
resourcing. If judges are going to remove non‐PHP cases from the lists as they are doing ……. it
will obviously make the non‐PHP system look really bad for timing ‐ yet the issue remains
resourcing”
“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”
The concept of increasingly interventionist approaches in dealing with parenting disputes, such as
obligatory counseling and conciliation processes and the introduction of further non‐adjudicative
means of dispute resolution, often raises the question whether these matters should in fact
appropriately be dealt with by the judiciary. However, the suggestion that parenting issues be dealt
with by a social agency rather than a legal process was very strongly rejected by practitioners.
Nevertheless, a limited number of respondents could see substantial merit in the idea. One
remarked that experiencing a real adversarial process ‘personally and first hand’ would dramatically
reduce one’s enthusiasm for any process that involves lawyers and judges, while another suggested
that perhaps an integrated “panel” approach involving lawyers, social workers, experts etc would be
a better alternative to either a legal or a social service process.
In conclusion, whilst the general assumptions about the adversarial process find significant support,
practitioners do not to agree with the presumption that changing the role of the judges is the
ultimate cure. Some specific changes in the judges’ role that improve the quality and efficiency of
the process are carefully supported, but the fundamental change that lets the judge determine what
issues are relevant to the exclusion of the parties and their lawyers is firmly rejected.36 Practitioners
do not think the Family Court should develop into a social agency, and there is clearly more support
for improving the current process than there is for fundamentally changing it.
The PHP in practice, the benefits of the new process
44% of the survey respondents37 had experienced the PHP process in 190 cases (an average of 3
cases / practitioner).38 The highest individual experience was 8 cases, while 72% of the respondents
with PHP experience had acted in 1‐3 cases; 59% of those with PHP experience acted mostly for
parties, 22% mostly as lawyer for the child and the remaining 19% had a more or less evenly divided
role. The respondents with PHP experience were asked additional questions that were not
presented to practitioners who had not yet acted in PHP hearings. The following table shows the
distribution of PHP practitioners and their case experience over the different pilot courts.39 A few
respondents had acted in more than one PHP location. To date no information has been published
9
by the Ministry of Justice or the Family Court about PHP caseloads or other relevant statistics. It
seems, however, that the current survey has obtained a broad and representative sample of
practitioners with actual PHP experience over all the pilot courts.
With the introduction of the PHP pilot, several assertions were made with regards to the advantages
of the new process, and these are also used to promote and explain it. In order to obtain opinions
on whether these advantages actually materialize in the process, the respondents were asked to
rate their agreement with a number of statements on a 5‐point scale, between strongly disagree (1)
and strongly agree (5). The instruction was: “When the PHP pilot was announced, a number of
assertions were made to support the introduction of this new process. Based on your own
experience, indicate to what extent you agree with each of the following statements.”
Obviously, practitioners who have experienced PHP hearings are skeptical about some of the alleged
benefits. Their opinion is neutral about the PHP providing a better environment to decide what’s
best for the children, and there is only slight agreement with the assertion that the judge’s control
can actually keep the parties focused on the children. The respondents are clearly of the opinion
that the process cannot guarantee the strongly promoted outcome‐based expectations, such as
longer lasting and better accepted agreements, better outcomes for the children, or improved
decision making capacities between the parties later on.
What is seen as a clear advantage of the process is its speed,40 although there were several
comments that questioned whether this can be retained if the process was to be rolled out more
widely. There were also some suggestions that the PHP cases were receiving something of a
preferential treatment over ‘normal’ cases.41 As mentioned above, many commentators suggested
that increased resourcing and subsequent faster processing times would enhance the traditional
process as well, raising the question if a full‐blown PHP process is actually needed. Furthermore, it
seems that at least a part of the speed advantage of the PHP rests on the increased efficiency that is
the result of tighter judicial control and issue‐ and evidence reduction. This of course raises the
question if the process still complies with the rules of natural justice.42 Although a reassurance to
that effect is emphasized emphatically in the promotional material,43 the practitioners who acted in
PHP cases were of the opinion that there is a serious shortcoming in this respect. Compliance with
natural justice was rated at an alarmingly low 2.45,44 with remarks that questioned whether the PHP
complies with even minimal due process standards.
The PHP provides new possibilities for direct interaction between the parties and the court, in a
more “interactive” way than what can be achieved by the traditional sequential evidence process.
There is some support for the assertion that the process gives the parties more opportunity to have
their say, and the respondents indicated convincingly that this is substantially appreciated by their
clients.45 Some support was given for the idea that the direct interaction demonstrated that issues
are often less extreme than they may appear to be from the affidavits.
The conclusion from this section of the survey must be that the PHP is thought to sacrifice too much
in procedural safeguards to gain relatively minor advantages. In fact, there was notable
disagreement with the main outcome assertions underlying the PHP process. The PHP’s main
advantages are speed and the opportunity to directly interact with the judge, but these are
measures that can potentially be implemented without a “radically new” process.
The PHP in practice, the changes involved in the new process
The PHP process introduces some dramatic changes to the way the Court will be dealing with
parenting disputes, by changing the role of the judge and introducing strict time constraints. These
changes will of course also result in changes to the work of those professionally involved in these
disputes: the lawyers, but also other professionals such as providers of psychological assessments, or
agencies such as the Child Youth and Family Service (CYFS) or the Legal Services Agency (LSA).
In order to test the views of those with experience in PHP hearings about these changes, an
agreement rating46 was obtained for a number of statements. The instruction was: “This question
asks for your views about changes that the PHP process introduces. Please answer them based on
your experience in actual PHP hearings.”
11
Agreement with staatements reggarding the cchanges thatt the PHP
Mean Var n
process introduces.
The PHP
P process devvaluates the
e role of the parties’ cou
unsel. 3.02 0.93 58
The PHP
P process inccreases the rrole of the ch
hildren’s cou
unsel. 2.98 0.89 58
It is app
propriate thaat the Judge can switch bbetween diffferent
3.17 1.51 58
modes o of operation
n, i.e. mediattion and adju
udication.
The timee limits impoosed by the PHP processs are adequaate to
2.74 1.21 58
deal witth parentingg disputes.
Other aggencies or professionalss, such as rep
port writers,, can
2.39 0.74 57
comply with the timme limits set by the PHP process.
The legaal services aggency can ad
dequately de
eal with the
2.60 0.78 53
constraiints set by th
he PHP proceess.
Table 7: A
Agreement with
h statements ree changes intro
oduced by the P
PHP, rated 1‐5, mean, variancce and respond
dents (n)
It is appropriate that the juddge can
witch between
sw n different moodes of
operation, i.ee. mediation aand …
Strongly d
disagree
The PHP process iincreases the role of Disagree
the children's counsel Neutral
Agree
The PHP process deevaluates the role of Strongly A
Agree
the partiees' counsel
0% 20% 40%
% 60% 80
0% 100%
Figure 1 D
Distribution of rratings about the change in th
he roles of counsel and judge.
12
Perhaps to be expected, there is a weak to moderate, but significant, correlation50 between opinions
about increased inquisitorial powers of the judge (see above) and the appropriateness of switching
between modes of operation. In other words, practitioners who agree with increased inquisitorial
powers tend to also agree that switching between modes of operation is appropriate.
The time limits set by the PHP process are seen as restrictive. Practitioners opined that these are
insufficient to deal appropriately with parenting issues, and pose too much difficulty for report
writers and other professionals involved. Specific comments referred to already overworked social
agencies, and the reduced quality of the process if time restraints are used too stringently to reduce
issues or the way they can be dealt with. Obviously there is a balancing exercise between on the
one hand speed and efficiency and on the other appropriately thorough and procedurally just
dealing with the issues in each case. It will be interesting to compare the data from the current
study with detailed information about the logistics of the PHP process from the pilot courts,51 if and
when that is made available. This issue also relates to one of the more pertinent differences
between the Australian CCP and the PHP model, where the Australian programme has introduced a
‘family consultant’ (formerly called mediator) who is appointed by the court and involved with the
family from the early stages of the court involvement, and who can provide a report to the court,
and give evidence. In Australia these specialists are part of the organization surrounding the Family
Court.
Although the LSA introduced a special protocol for PHP cases,52 this has apparently not achieved its
objectives, hence the negative score on this issue. When the interim LSA policy was introduced, an
evaluation in early 2007 was envisaged, including a consultation with the NZLS. This survey did not
generate any further details in relation to legal aid, and there were too few specific comments on
that subject to analyze the discontent behind the negative score.
Assessment of the objectives of the PHP
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 does not expressly state what these underlying or strategic objectives of the
PHP process are, although there is a brief reference to improving access to justice and increasing the
public confidence in the Court system.53 The briefing paper is more concerned with process
outcomes and includes pertinent statements about those. The thesis appears to be that by achieving
outcome based objectives, the more strategic objectives (whatever they precisely are) will be
achieved automatically.54
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 collated in table 8.
13
Agreement with statements regarding the underlying objectives
Mean Var n
of the PHP experiment.
The PHP process is a genuine attempt to provide better
3.82 0.63 131
outcomes for parents and children
The PHP is an attempt to reduce the costs of the Family Court
3.52 0.64 131
system
The PHP is an attempt to force parents to comply with
2.65 0.74 133
government policy objectives
The PHP will lead to further dominance by social agencies and
2.82 0.94 131
reduce the role of lawyers, to the detriment of justice
The PHP will provide better access to justice 3.03 0.85 133
Inquisitorial process should have no place in our common law
1.96 0.49 133
system
Table 8: Agreement with statements re underlying objectives PHP, rated 1‐5, mean, variance and respondents (n)
There is, of course, one overriding objective which guides everything the Family Court undertakes in
respect of parenting matters and this is embedded statutorily, the paramountcy principle, which for
the purpose of the PHP may apparently be translated into “reducing the damage that protracted
litigation does to co‐parenting and parent‐child relationships”.55 As noted, there is strong support
for the notion that protracted litigation indeed does such damage. Unsurprisingly therefore, the
statement that the PHP attempts to provide better outcomes receives strong support. Nevertheless,
when comparing the 3.82 with for instance the scores on the disadvantages of adversarial process
(3.98 and 3.79) the result is not as overwhelming as would be expected.56 Apparently there is a level
of skepticism whether perhaps other (and possibly more covert) objectives also play some role. The
next questions attempt to explore this.
Saving costs to parties and in the Court’s time and resources is mentioned as one of the key features
of the PHP, so it can be hypothesized that reducing the overall cost for the court system to deal with
parenting dispute may also an objective of the PHP. Practitioners agreed with that conclusion.
Whether the means of achieving procedural efficiency and consequent cost savings are valid
objectives is outside the scope of this paper. What may be concluded is that the PHP process (at
least as promoted) seems almost too good to be true. It allegedly fixes a system evaluated as ailing
because of its adversarial character and plagued by delays. Yet it not only cures these problems, it
also provides better outcomes for those involved, and maintains the standards of the rule of law,
and it may do so for reduced costs.
Family Law is permeated with policy objectives. The way members of society are expected to deal
with inter‐personal problems, and the infrastructure the state makes available to determine the
inevitable disputes that arise, cannot be seen as independent from the ideological dogma’s under
which a state operates. Current thinking (especially in family law)57 aligns with consensual and
mediative processes, rather than adjudicative (and especially adversarial) models. The conciliation
(‘therapeutic’) arm of the Family Court is about to be further extended with non‐judge led mediation
and the PHP can clearly be seen as a proponent of a momentum away from adjudicative
14
intervention. The question arises whether the actual parties to the dispute share this objective or
whether they would rather suffer another, more determinative, process from the start. That
question is not asked of them, a decision has been made and the issue is thus one of explaining that
the new processes are simply better than the litigation model that they might envisage as being
available. The role of the courts’ authority becomes one of explanation, persuasion, and if all fails re‐
education,58 followed by a process where the thus modified citizens are assisted in finding their own
solutions. It can be argued that processes such as the PHP allow for more direct state intervention in
private ordering, i.e. the state uses its role as the guardian of children’s rights to teach its citizens
moral lessons about how they should behave in conflict situations, and how they should think about
family relationships post‐separation. However, the consequent proposition that the PHP is
introduced as a mechanism to enforce compliance with policy objectives is clearly rejected by the
respondents. Similarly, the suggestion that the PHP will lead to a dominance of social agencies and a
reduction in the role of lawyers was rated (albeit less) negatively.
Finally, the issue of the place of inquisitorial processes in our common law system was addressed.
Because there are already some inquisitorial processes in the Family Courts, the question was
framed negatively in order to draw out a clear response. As can be seen, the respondents are of the
clear opinion that inquisitorial approaches are quite appropriate in our Family Courts.
Views on pilot projects generally and the PHP pilot specifically
The next block of questions (presented to all participants) addressed the use of pilot projects
generally and the PHP pilot specifically. The participants were asked to rate their agreement with a
number of statements, following the instruction: “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 summarized in table 9.
Agreement with statements regarding the use of pilot projects
Mean Var n
and the PHP pilot.
There should be no place for experiments in the Courts at all. 2.21 0.73 132
Important rule changes should be brought about by legislation
3.23 1.12 130
only.
The PHP process affects substantive justice. 3.21 0.81 129
The PHP pilot is well executed in practice 3.00 0.54 127
The PHP process and pilot have been introduced ultra vires 3.08 0.85 129
The pilot is a farce, decision has already been made to
3.08 0.92 131
introduce this process
Table 9: Agreement with statements re pilot projects and the PHP pilot, rated 1‐5, mean, variance and respondents (n)
The respondents had no problem at all with some experimentation in the Family Court, 78%
disagreed or strongly disagreed with the statement. As can be seen from the score on the next
15
The survvey concluded with threee questionss about the PHP pilot as
a it is curreently introdu
uced and
executed. All threee statementss were rated
d neutral, with
w relativelyy large fracttions of resppondents
choosingg a neutral response. On nce again, ho owever, the mean neutraal score hidees a stark, bu ut equally
divided difference of opinion. Figure 2 represents
r graphically
g h
how the resspondents raated the
statemeents about th he PHP pilot.
TThe PHP pilot iis well executeed in
praactice.
Strongly d
disagree
The PHP process an
nd pilot have b
been Disagree
introduced ultra vires. Neutral
Agree
Thee pilot is a farcce, a decision has
already been made e to introducee this Strongly A
Agree
proccess.
Concllusions
Overall, the picture that emergees is not oveerwhelminglyy positive. A Although theere is strongg support
for the assumptionss about the disadvantagges of the ad dversarial sysstem as it cu urrently ope erates, at
this poinnt in the pilo
ot process, faamily law praactitioners are not conviinced that th he PHP as inttroduced
will curee these shortcomings. There
T is cleaar support fo
or extendingg the role o
of the judgess in case
management and in n deciding what
w further evidence may be required. The direct interacttion with
parties is considereed helpful annd appreciatted by the clients. Howwever, the next step, complete
c
16
“inquisitorial” intervention, whereby the judge decides what the issues are and how to go about
deciding them, is not considered appropriate. There are serious doubts about whether natural
justice is achieved in the pilot, and the question is raised whether a wholesale replacement of
current process is necessary where the matter is essentially one of resourcing.
There seems to be a perceptible problem with the information exchange between the Family Courts
and the practitioners operating there. The Law Society also appears to fall short in its supporting
role. Given that the “buy‐in” of practitioners is clearly lacking, one could raise the question whether
sufficient attention was given to consultation and information exchange prior to the launch of the
programme, and whether more or better logistical resources ought to have been made available.
The time limits seem somewhat problematic and may have been set slightly too ambitious.
Ambition is a characteristic of the PHP process and pilot. It was introduced with strong statements
of its capabilities, but apart from speed and the opportunity of parties to communicate with the
judge those achievements are not thought to materialize, or are the subject of severe skepticism.
Many comments were made about the impact of the character of the individual judge, differences
between judges, the professional standards of the lawyers, lack of uniformity, and the perception
that it is too hard for a judge to come to grips with a case in the available time limits, or even on the
basis of not being able to understand the reality of the parties. It is in this aspect that there is a
significant difference with the Australian CCP, where an additional functionary obtains the task of
making sure that the court has this type of information available where necessary.
The differences (especially organizational and structural) between the PHP and its Australian
counterpart were highlighted, and the question was raised whether the shoe‐string implementation
of our local variant can legitimately claim to result in the advantages that are claimed of the
Australian experiment.
Finally, there is a neutral attitude about the way the PHP pilot is being conducted and how it was
introduced. It is, however, somewhat disturbing to note that about 20% of respondents considered
that the pilot process was not executed well in practice, that almost 30% of respondents opined that
the PHP process and its pilot have been introduced ultra vires, and that more than 30% thought that
a decision to introduce the PHP process has in fact already been made, regardless of the outcome of
the pilot.
Endnotes
1
LLB(Hons) MMGT BBS PDBA FAMINZ(arb) MAANZ. I wish to express my thanks to Associate Professor
Pauline Tapp for reading this text and providing helpful comments. Any errors are of course mine, for further
information about this survey, the author can be contacted at zondag@ihug.co.nz.
2
In 2006, almost 23,000 parenting related applications were being processed in the Family Courts, in some
12,000 individual cases. Of these 7,536 were ‘new’ cases, i.e. relating to families without prior family court
involvement: Ong S W Family Court Statistics (Wellington, Ministry of Justice, 2007).
3
Although there seems to have been little informed debate in which the principal merits of this concept have
been argued extensively, see for instance: Fineman M Dominant discourse, professional language, and legal
change in child custody decision making 101 Harvard Law Review 727 (1988) , or for an overview of the
practical consequences: Kelly J B Children's living arrangements following separation and divorce: insights
from empirical and clinical research Family Process, 46(1), 35 . In recent parliamentary debate (on the Family
Courts Matters Bill) the best interest of the child principle in this context was referred to as “although a noble
guide, it effectively leaves total control of families’ future make‐up to the whim of an individual judge”: (2007)
641 New Zealand Parliamentary Debates 11491 (J Turner).
4
Sections 4 and 5 Care of Children Act 2004.
17
5
“Policy discussions have emphasised the problems and harms caused by non‐resident parents who disengage
and disappear. But little concern has been addressed to the difficulties and problems associated with ongoing
parenting relationships. It seems to be taken for granted that such relationships will thrive just so long as
parents are sufficiently committed to the welfare of their children. But what we want to suggest is that, quite
independently of a commitment to welfare, such relationships are hard to manage and affect very profoundly
the quality of life of many thousands of children, parents, grandparents and new partners … if both want to
remain engaged parents they have to remain in some kind of relationship with each other. There is therefore a
tension for parents which means that they cannot simply leave behind a relationship – no matter how much
they may wish to – in the way that couples without children can.” : Smart C, & Neale B Family fragments?
(Polity Press, Malden, Mass., 1999) 70‐71. The question is of a social, rather than legal, character and not
restricted to common law jurisdictions. It raises similar issues in a civil law, inquisitorial, context. See for
instance: Rooijen C v Scheiden zonder vrijheid. Is gezamenlijk ouderlijk gezag in het belang van het kind?
(Divorce without freedom, is joint parental authority in the best interest of the child?) (Wolf Legal Publishers,
Nijmegen, 2007).
6
Unambiguous and definitive statistical data are not available, and the way such data are to be collected is
also a topic of debate: StatisticsNZ Report of the review of official family law statistics (Wellington, Statistics
New Zealand, 2007b) and : StatisticsNZ International developments in family statistics (Wellington, Statistics
New Zealand, 2006). However, the available marriage and divorce statistics indicate that annually about 4,500
divorces are processed that involve children: StatisticsNZ Marriages, civil unions and divorces: Year ended
December 2006 (Wellington, Statistics New Zealand, 2007a). While there is no data for the number of
parenting disputes between separated, but not previously married couples, the ex‐nuptial birth rate (approx.
45%) could be used as an indicator that probably about half of the children involved in separation are from
non‐married couples. Family Court statistics indicate that annually about 7,500 new parenting disputes are
filed: Ong, see note 2 above. Using the above approximation of ex‐nuptial parenting disputes, and assuming
that no more than one procedure can be completed annually for each conflicting couple, it can be seen that
7,500 cases annually would involve a very large fraction of all separating couples, both married and non‐
married. This phenomenon calls for further research and analysis, but this is outside the scope of this study.
7
An often heard figure is that only 5 ‐ 6 % of disputes require judicial determination: (2007) 641 New Zealand
Parliamentary Debates 11462 (J Collins), or the PHP briefing paper: Boshier P F, & Udy D Parenting Hearings
Programme (Less adversarial hearings) (Briefing Paper 6 September 2006) (Wellington, Family District Courts,
Ministry of Justice, 2006).
8
See for example: Weinstein J V And never the twain shall meet: The best interests of children and the
adversary system. University of Miami Law Review, 52(1), 79‐175 , who lists an extensive range of reasons why
the adversarial legal process is unsuitable for parenting disputes.
9
The pilot was launched at a Law Society Conference: Boshier P F "The Family Court ‐ Towards achieving our
best" (A speech to the Auckland Family Courts Association, Auckland Disrict Law Society, Auckland, 29
November 2007) . The formal introduction was by way of a briefing paper: see note 7, above.
10
For a thoughtful and captivating comparison, see: Damaska M R The faces of justice and state authority : a
comparative approach to the legal process (Yale University Press, New Haven, 1986). For a brief comparison
focused on the Family Court, see: Carruthers D Report of inquiry into the French (investigative) judicial system
Butterworths Family Law Journal, March 1996, 301‐307 , or: Harrison M Finding a better way. A bold
departure from the traditional common law approach to the conduct of legal proceedings (Canberra, Family
Court of Australia, 2007). However, it is appropriate to note that in civil law jurisdictions ‐despite their
inquisitorial or investigative systems‐ very similar proposals are advocated to introduce non‐litigation dispute
resolution for parenting disputes. For instance in the Netherlands the American mediation model is advanced
as an example of a better way to deal with (parenting) disputes that arise out of separation: Chin A Fat B
Scheiden: (ter)echter zonder rechter? Een onderzoek naar de meerwaarde van scheidingsbemiddeling (Divorce:
more real and just without a judge? An investigation into the added value of divorce mediation) (SDU
Uitgevers, The Hague, 2004).
11
For a thorough expose on the use of pilots in policy making, see: Jowell R Trying it out: The role of 'pilots' in
policy making, report of a review of Government pilots (London, Cabinet Office of the United Kingdom, 2003).
12
See for instance: Hunter R Evaluation of the children's cases program: A report to the family court of
Australia Socio‐legal research centre, Griffith University, 2006a), and: McIntosh J The Children's Cases
Project: An exploratory study of impacts on parenting capacity and child well‐being (Final report to the Family
Court of Australia) (Victoria, 2006). But also see: Hunter R Child‐related proceedings under Pt VII Div 12A of
18
the Family Law Act: What the Children's Cases Pilot Program can and can't tell us. Australian Journal of Family
Law, November 2006, Volume 20 .
13
See note 9 above and: Ministry_of_Justice Parenting Hearings Programme; What this new Family Court
process means for you and your children Brochure 085 issued by the Family Courts, October 2006 , and:
Ministry_of_Justice Parenting Hearings Programme; The new process and the role of lawyers and lawyers for
the child Brochure 084 issued by the Family Courts, October 2006 .
14
For an early comparison between a suggested model for New Zealand and the CCP see: Jefferson S Draft
opinion ‐ Family Court pilot programme (Auckland, 2004). A recent description of the history, development,
and current operation of the CCP is provided by Harrison, see note 10 above.
15
Possibly similar to the approach used in the evaluation of the mediation pilot: Barwick H, & Gray A Family
mediation ‐ Evaluation of the pilot (Wellington, Ministry of Justice, 2007).
16
Design of the formal evaluation started in October 2007. Additionally there is an “informal monitoring
process” and PHP judges meet regularly to scrutinise the operation and effect of the pilot: Smith E Parenting
Hearings Programme: Less adversarial children's hearings ("PHP"), NZLS Conference, Family law ‐ flying high.
(Christchuch, New Zealand Law Society, 2007).
17
Boshier P F "The Principal Family Court Judge's vision for the Family Court going forward after the first 25
years" (A speech to the New Zealand Family Law Conference, Christchurch, 8 November 2007) and: Boshier P
F "The Family Court ‐ Towards achieving our best" (A speech to the Auckland Family Courts Association,
Auckland Disrict Law Society, Auckland, 29 November 2007) .
18
Using the online system of Qualtrics (www.qualtrics.com).
19
Statistical calculations were performed with SPSS and MINITAB software.
20
Because of the different blocks of questions and the non‐compulsory character of most questions, not all
participants completed each question. In this article the number of respondents is given for each question,
where relevant.
21
A phenomenon that was also observed in research about the use of ADR in other civil process: Saville‐Smith
K Alternative dispute resolution : general civil cases / prepared for the Ministry of Justice by K. Saville‐Smith
and R. Fraser (Wellington, N.Z., Ministry of Justice,, 2004).
22
If these numbers are extrapolated to the entire sample, it would follow that the societal cost of parenting
dispute involves at least 400 years of lawyers’ work annually, or, using a conservative fee estimate of
$250,000/year an amount of at least $100 million on lawyers’ fees alone. This may be compared with the
Family Court statistics, which provide that some 12,000 parenting cases are processed annually, which would
equate to an approximate average of $8,500 lawyers’ fees / case.
23
It must be noted that conclusions in purely economic and efficiency terms are irrelevant if the actual
disputes are not disposed of properly. The parties would simply end up in a worse situation or keep returning
to the Court for further rounds of litigation.
24
Spearman’s ρ=‐0.064, p>0.05.
25
Because more than one source could be selected, the percentages refer to the fraction of the sample that
used each specific source.
26
Those who had acted in PHP cases used on average another 4 sources of information. Those who had not
acted in PHP cases had on average used 2.4 information sources. This unsurprising, statistically significant,
difference demonstrates that practitioners will actively pursue information once confronted with this new
process in practice. [T(122)=6.16, p<0.001]
27
But perhaps not enforced similarly strict in all PHP courts. For instance in Auckland, watching the DVD
cannot be avoided; the judges will check and adjourn so that the registrar can bring equipment in to enforce
compliance. There is no data available how this is enforced in the other PHP courts. It might be advisable that
a version would be made available online (Family Court website) as well.
28
The mean is calculated as the total of all scores (using the scale values), divided by the number of responses
for each topic.
29
Variance is a statistical measure of the distribution of scores, which may here be conceptualised as a
measure of how closely the respondents agreed on the average score (variance is calculated by totalling the
squared differences between each score and the average score, and dividing the result by the number of
scores minus one). A larger variance thus indicates less ‘agreement’ about the average. For example, if 100
respondents would rate a question at ‘good’ (score value 4), the average score would be 4.0 with a variance of
0, because there was no score that deviated from the mean score. If the responses would be equally
distributed over the 5 possible scores, the average would be 3.0, with a variance of about 2.0. By contrast, if
one half of the respondents would rate a topic with ‘very poor’ (1) and the other half with ‘very good’ (5) the
19
average would also be 3.0, but the variance much larger, about 4.0. The variance can be used to calculate a
‘95% confidence interval”, which may be interpreted as a statistical approximation of the two values between
which the mean may expected to be for 95% of similar samples drawn from the same population.
30
But not statistically significantly (using a Mann‐Whitney test) for each different quality variable: For clarity
W=14823, p<0.05 and p<0.01 adjusted for ties, i.e. significant. For comprehensiveness W=13619 p>0.05
(adjusted and non‐adjusted for ties) i.e. non‐significant. For availability W=13676, p<0.01 (adjusted and non‐
adjusted for ties), i.e. significant.
31
And this effect was more pronounced for those with actual PHP experience.
32
See for instance the briefing paper, note 9 above, and the information booklets, note 13 above.
33
“…the PHP is clearly working and has been embraced by the Family Court Bar as being a legitimate and
helpful way forward”: Boshier P F "The Principal Family Court Judge's vision for the Family Court going forward
after the first 25 years" (A speech to the New Zealand Family Law Conference, Christchurch, 8 November
2007) .
34
And this leaves open the questions whether the Australian pilot was as successful as alleged (see note 12
above), and whether the PHP can be sufficiently compared with the CCP to draw such conclusions in the first
place (see note 14 above).
35
The percentage fractions of responses were respectively: strongly disagree 10%, disagree 25%, neutral 32%,
agree 32%, strongly agree 1%, giving a 95% confidence interval for the mean between 2.73 and 3.07.
36
There were no significant differences in the scores for these questions between those with and without PHP
experience, indicating that the answers have been given in reliance on experience and opinion in a broad
sense, and without specific reference to the PHP, as was indeed requested.
37
The survey had been sent to all practitioners nationwide, including areas where the PHP is not piloted.
38
This does of course not mean 190 different cases; different respondents may have been acting in the same
case.
39
The number of cases/location had to be extrapolated for 2 respondents.
40
Provisional figures released by the Family Court (see note 12 supra), show a “dramatic” increase in speed for
PHP cases, which seems to correlate with the findings of the current study.
41
An effect that was mentioned in the Australian pilot as well. See Hunter, R, note 12 supra.
42
Which could potentially lead to the question if the Family Court’s role in this respect is in fact
constitutionally appropriate. See also: Illingworth G justice for children, Family law ‐ flying high. (Christchuch,
New Zealand Law Society, 2007).
43
And judicial speeches, see note 33 above.
44
With a 95% confidence interval for the mean between 2.18 and 2.72.
45
A mean of 3.85 with a 95% confidence interval between 3.67 and 4.02.
46
Rated from strongly disagree(1) through neutral (3) to strongly agree (5), on a 5‐point scale.
47
The briefing paper states: “The new process will involve a shift in, but not a downgrading of the lawyer’s
role.”
48
Both questions scoring virtually neutral means (3.0) with the following distributions of the ratings: question
about the role of parties’ counsel: (fraction/rating 1‐5) 4%, 29%, 34%, 28% and 5%, and for the question about
counsel for the child: 4%, 29%, 38%, 24% and 5%. As can be seen, large numbers of practitioners (between 60
and 70%) expect changes, but the differences of opinion about the direction of that change balance the mean
score, resulting in a “neutral” average.
49
95% confidence interval for the mean between 2.85 and 3.50.
50
Spearman’s ρ (correlation) between opinions on ‘inquisitorial powers to decide what further evidence is
required’ and ‘role switching’= 0.34, p<0.05; and between ‘inquisitorial powers to determine what issues are
relevant’ and ‘role switching’=0.39, p<0.01. Unsurprisingly, the correlation between the opinions about the
two different levels of inquisitorial intervention is somewhat stronger: ρ=0.47, p<0.01.
51
Such as hearing time, time lag between filing and processing applications, compliance with time restraints,
number and volume of affidavits filed, use of reports, reduction in report volume etc.
52
Legal_Services_Agency Interim policy on paranting hearings programme. (Legal Services Agency, 2006).
53
In a recent presentation Family Court Judge Smith referred to “an appetite to develop a new approach” to
which the Principal Family Court Judge had responded. She restrained herself to giving “a personal attempt to
briefly identify what I believe to be the genesis of some of the reasons for the need to develop a better trial
process”, before mostly re‐iterating the elements of the briefing paper: Smith E Parenting Hearings
Programme: Less adversarial children's hearings ("PHP"), NZLS Conference, Family law ‐ flying high.
(Christchuch, New Zealand Law Society, 2007). The views of the Principal Family Court Judge on this issue are
20
well documented, and perhaps appositely summarized as “being a long standing critic of adversarial
proceedings in children’s matters”: Harrison, see note 10 above; and advocating that: “the permissible issues
being framed by the judge...the right to test evidence by cross‐examination of the parties should be
removed....the extent and nature of participation in the hearing would accordingly be defined for the parties
and not by them [emphasis added]”: Boshier P F What's next after case management? Butterworths Family
Law Journal, September, 149‐152 , and: Boshier P F "Truth or proof ‐ evidential issues" (Paper presented to
the New Zealand Law Society Family Law conference, 1991) Conference papers: "The Family Court ten years
on",161‐166 .
54
Or, alternatively, the strategic objectives were omitted from the briefing paper and promotional material,
because these practical guidelines need not be burdened with such additional material. This of course leaves
the question open in which forum such strategic matters have been determined, and what the appropriate
process for that determination is. Those with a cynical world view may argue that the PHP represents a form
of judicial activism; several comments from practitioners expressed very strong views on this subject. Notably,
the Australian experiment also seemed to be largely driven by the judiciary: Harrison, see note 10 above.
55
See briefing paper, note 9 above, under “introduction”.
56
6% of respondents rated the statement with “disagree” (1.5%) or “strongly disagree” (4.5%), while 19% had
a neutral opinion.
57
But to some extent in general civil litigation as well, see for example the 1999 changes in England, following
the report of Lord Woolf, the recent changes in New South Wales civil procedure, and the pending review of
the District Court civil rules in New Zealand.
58
The briefing paper states: “Parent education before the process will be crucial. Before the first day of the
process the parents will view a video that explains the new process, and that shows the damaging effects on
children of bitter separation disputes and lengthy court battles.” The lawyers have a role in this educational
objective as well, for instance the role of the lawyers is said to include: “educate their clients about the
objectives of the process, particularly the need to focus on their children”. Lawyers are further supposed to
“buy‐in” into the process, and should become “skilled in explaining the process to their clients and guiding
them through it”: Briefing paper, see note 9 above. In the Australian CCP context, an important part of the
new role of family consultant is of an educational character, while his/her expertise and credibility is based on
specialized knowledge about the impact of high conflict on children. The family consultants were given
additional national training “to ensure that the information provided on common issues was consistent across
the Court.”: Harrison, note 10 above.
59
See Illingworth QC, note 42, above.
60
It is interesting to note that where the other civil courts in New Zealand have a rule committee that oversees
rule changes and experiments, this is not the case for the Family Court. See:
http://www.courtsofnz.govt.nz/about/system/rules_committee/role_powers.html .
61
And hence perhaps the remark in the briefing paper that the PHP to “some extent will formalize an approach
many New Zealand Family Court judges are already using.” See note 9 above, at 1.
62
While in civil law jurisdictions this safeguard is of an institutional nature, i.e. in the way courts are organized
and populated, the way judges are trained and develop their careers, and in the way their rule systems are
maintained. For a comparative perspective see Damaska, note 10 above, while a historic perspective may be
found in: Coquillette D R The Anglo‐American legal heritage (Carolina Academic Press, Durham, 1999).
63
See for instance Rishworth P, Huscroft G, & Optican S The New Zealand Bill of Rights (Oxford University
Press, Auckland, N.Z., 2003), at 754.
64
In that context it is appropriate to refer to some strong concerns that were voiced about the PHP in the
context of domestic violence and other extreme power inequities. This concern was also raised at the
evaluation of the Australian CCP pilot: Hunter R Evaluation of the children's cases program: A report to the
family court of Australia Socio‐legal research centre, Griffith University, 2006a), and is one of the general
concerns that always surface where procedurally ‘strong’ (and therefore often inefficient) processes are
replaced by less formal (or ‘empowering’) methods of dispute resolution.