PP2003 Version Presentation 11 March 2008

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Halfway through its pilot: a view from the bar

Berry Zondag1


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PhD study, with the thesis titled:

The Parenting Hearings Programme Pilotin the New Zealand Family Courts:constitutional, philosophical, legal and

practical issues with a semi-inquisitorial

processin 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 Lawand legal theory: Adversarial v inquisitorial process, or is that an unhelpful

dichotomy?

Constitutional theory: Natural justice, the rule of law and a courts powers to

fundamentally amend its process

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Social, psychological and legal context ofdivorce and post-separation parenting

The perceived problem: (adversarial) legalprocess and its effect on post-separationfamily dynamics

Policy responses in New Zealand andabroad, the developing views of judicialauthority

Comparison between the Australian CCP(now LAT) and the PHP; law, process andsurrounding infrastructure

Evaluate PHP using the theories informing 4


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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 ofindividual cases

Fine-grained comments/observations inaddition to statistical material

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Emails to all available email addresses offamily law practitioners (N=735), with one-week reminder

Link to website with anonymous surveyforms

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

infoCONCLUSIONS: Practical experience is currently the way to gain PHPknowledge The PHP process itself is not very complicated The quality of the available information about the PHP is

limited9


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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% hadacted in 1-3 cases

59% acted mostly for parties, 22% mostly as L4C, 29% hadevenly mixed roles 15


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Practitioners experienced in PHP hearingsopine:

Notable disagreement with the mainoutcome assertions underlying the PHPprocess

Too much sacrifice in procedural

safeguards, in order to gain relativelyminor advantages

Main advantages are speed and directinteraction between parties and judge,but these may be achieved by amending 19


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The picture that emerges is notoverwhelmingly positive

Agreement that adversarial process hasdisadvantages.. ....BUT........practitionersNOT convinced PHP will cure theseshortcomings

Support for extending role of judge: case management

determining what further evidence may berequired

No support for extended inquisitorial 25


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Room for improvement:

information exchange Family Court -practitioners

Supporting role Law Society

Insufficient consultation with thespecialized profession prior to PHP

launch PHP objectives perhaps too ambitious:

have the potential advantages beenoversold ?

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Can PHP be validly compared with theAustralian CCP (now LAT), so as to claimsimilar advantages?

different infrastructure and organization

different budgets

Doubts:

is the PHP and its pilot constitutional / intravires

is the matter pre-determined anyway

quality of the pilot process

lack of clarity about PHP evaluation 29

PP2003 Version Presentation 11 March 2008

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