Procedural innovation in the New Zealand Family Courts: the Parenting Hearings Programme

Abstract

Parenting disputes are the main source of litigation in the New Zealand Family Courts. Although ninety five per cent of the 13,000 cases filed annually are resolved in the “conciliatory arm” of the Court, the remaining five per cent require judicial determination. Of those, a large number return to court, showing that the outcomes in these difficult cases are of poor quality, despite their disproportional use of resources. It is often suggested that the root cause of quality and resourcing problems lies in the characteristics of adversarial litigation. A procedural innovation that addressed these issues was recently trialed. The “Parenting Hearings Programme” (PHP) promises a less adversarial and more child focused process, achieved by changing the judge's role. The judge, not the parties, determines the relevant issues and the scope and nature of the evidential process. Judges apply mediative and adjudicative interventions in a “hybrid” process with “inquisitorial” characteristics. This thesis discusses the social and legal context of parenting disputes and evaluates the PHP from different perspectives, including comparative law, conflict theory, alternative dispute resolution (ADR) methodology, natural justice, and compliance with court rules. The empirical component includes the results from a survey of family lawyers. While my findings confirm the potential disadvantages of adversarial litigation, the principles and procedures that constitute the PHP are not endorsed. Conflict- and ADR theory unearth serious shortcomings in the PHP concept. Comparison with a truly inquisitorial system suggests that changing the nature of some aspects of the court process has little prospect of sustained success. The innovation is arguably outside the rules and rule making powers of the Family Court, and it is doubted whether the PHP complies with fundamental tenets of the New Zealand justice system. The pilot process is found to have been lacking in methodology and execution, and the PHP innovation has not achieved the required level of endorsement and support from the legal profession. This study suggests a focus on improving the operational efficiency and resourcing of the Family Courts, rather than continued engagement in innovative experiments that ultimately fail to improve accessibility and quality of justice.