Halfway through its pilot: a view from the bar

Berry Zondag
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 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”

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 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
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 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

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 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

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 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

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 Emails to all available email addresses of

family law practitioners (N=735), with oneweek 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)

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• 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

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• 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

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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

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 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’

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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?
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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.

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 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’ ?
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 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

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