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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
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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