A truce between parents at war

Principal family court judge, Peter Boshier, is trialling a scheme letting parents talk directly to the judge. Picture / Glenn Jeffrey

The solution is elegantly simple. Instead of pitting separated parents against each other with their attendant lawyers cross-examining the evidence, let the parents tell it how it is directly to the judge, who will then decide what happens next.

For highly conflicted cases, the current Family Court process is not working well - even for judges.

"They're draining. I find them deeply anguishing. I listen to parents saying the most awful things about the other parent." Principal Family Court Judge Peter Boshier is talking about cases where the parents hate each other. "If they're quite prepared to do that in a court in front of a judge, in front of people they don't even know like the court taker, you can see that they're likely to do it in front of the children and in situations where they can run the other parent down. It's pretty ghastly."

It's this sort of behaviour - parents slagging off each other oblivious to their children's suffering - that he wants to change. Which is why he's introduced the Parenting Hearings Programme, also called Less Adversarial Children's Hearings - a pilot scheme that will run for two years in the Auckland, Tauranga, Rotorua, Palmerston North, Wellington and Dunedin Family Courts.

It's not a new idea. The Australian Family Court is two years ahead of us with its Children's Cases Project. And for about 15 years divorce research has heavily implicated the adversarial legal process in making parental conflict worse - and harming children.

"A tension bordering on an ethical mandate emerged for dispute resolution to move beyond 'black letter law' to a process that could embrace both the legal and psychological complexities of family separation," says researcher Jennifer McIntosh in her assessment of the Australian scheme.

In the New Zealand Family Court, the new process will deal with a relatively small number of cases - just over 5 per cent that are unable to be resolved through conciliation and end up in a defended hearing. Most parenting orders - 74 per cent - are reached by consent between parents.

But many of the cases that do end up in defended hearings are long, drawn-out affairs. When the Herald attended a number of hearings last year, it observed one case that had been in and out of the court for 10 years and had cost a father about $70,000 in legal fees.

It's this sort of case that has prompted fathers' groups to protest - claiming they show a court that is biased against them and damaging their relationships with their children.

Judge Boshier agrees delays in the process cause problems. He outlines how it goes wrong: "I'm assessing a case where say there has been parenting over the weekend. The children have gone back and indicated to the one parent that the other parent hit them, that they watched them having sex together, that they weren't fed properly, that they don't like what is going on in the other house - a raft of things might be said. So the parent into whose care the children are coming back applies to us to vary the parenting order."

What happens next is that the case is given a "first call". Then affidavits by the parents and other parties are filed, as well as psychologist and social worker reports. Then there's a mediation conference and, if matters can't be resolved, eventually a hearing. It's a process that takes months, during which time one parent, if a protection order has been made, may not be seeing the children.

"All that happens is that the stress is increasing and increasing," says Judge Boshier. Under the new programme, the idea is the court will identify cases where there's intractable conflict or risk and get involved quickly - having a first hearing (set down for two hours) within 14 days of the matter being listed.

"I think it's better than a hearing being called four months afterwards when people are getting very, very bitter," says Judge Boshier. "We do have delays and we do make orders which affect people. And we don't get back to them as quickly as we should, so I think we have got to do better."

He says in the traditional court process clients are in the secondary position of having their views sanitised and interpreted by their lawyers, who do all the talking.

"Sometimes you see them [parents] digging at their lawyer, saying, 'Why can't I speak? I want to convey it the way I see it.' Traditionally in English common law we haven't done that - and I don't think that's a very humane way of doing justice."

Instead, he envisages an interaction not unlike what happens in confidential Family Court mediation conferences - except that it will be in open court and on the record.

"I quite like saying, 'Mr X, I'd like you to tell me what your issues are. What has gone wrong for you and how would you put it right?' Quite often I say to people, 'What would you like the result to be at the end of this?' You give someone the opportunity to talk and actually feel listened to."

The Australian experience shows it's an approach that has positive effects.

"When people get a chance to be heard they seem much more satisfied with the process," says Nicola Adams, a senior solicitor with the Australian Legal Aid Commission in New South Wales. "It gives the opportunity for the process to be very open and the opportunity for disgruntled parents to be heard."

Australian Family Court chief justice Diana Bryant notes another effect - the different atmosphere of the courtroom means the key message, that the interests of the child are paramount, is more readily received. "There is no doubt that people do, sometimes for the first time, recognise issues they haven't really confronted before."

She says the process also works well with intractable cases, in part because it allows for catharsis. "People have an opportunity to express directly to the judge how they feel and often that ability to express it themselves, not through a lawyer, can be quite liberating."

Justice Bryant says having the judge direct proceedings from the first hearing sometimes results in a recognition that other people, such as another partner of one of the parties, can play an important role. "The judge will often invite them to sit at the bar table with the parties themselves. There is a kind of acknowledgment there are other people involved and we shouldn't ignore it."

Jennifer McIntosh's survey of the Australian scheme showed 35 per cent viewed the impact of the process as positive, compared to just 3 per cent going through the traditional court. In the mainstream sample, 70 per cent viewed the process as negative compared to 28 per cent of those in the less adversarial process.

The parents' view of the judge also changed. In the less adversarial sample 69 per cent reported a positive experience of the judge compared to 8 per cent in the mainstream group.

"The dominant experience is one of a benevolent, understanding judge, who in the moment was frequently capable of assisting parties to transcend a previously entrenched view of their conflict and their place within it as a parent," says McIntosh's report.

A key difference between the New Zealand and Australian schemes is the use of court-appointed mediators - a role that doesn't exist here.

Justice Bryant says mediators, now called family consultants, who are usually psychologists or have a social science qualification, play a significant part in the process. At the first hearing the mediator gives the parties feedback on the effect what they're discussing in the court will have on their children.

"That's proved to be a very effective and efficient feature," says Justice Bryant. "It was surprising the number of cases that were able to be resolved when parties finally realised for the first time the adverse affect their behaviour was having on the children - particularly the continuation of the conflict."

In Australia the mediator assists the judge in defining and narrowing the issues of the case and is called on to comment as a kind of expert witness. The expert status conferred by the judge can have a significant effect.

"It is noticeable that parties listen very intently, often nod in agreement, not infrequently cry, and make eye contact with each other while the mediator is speaking," says the manager of mediation in the Sydney Family Court, Deborah Fry, in a research paper.

Quite how psychologists may be used in New Zealand courts is still to be worked out. Judge Boshier says he's open to the idea of having them in court and expressing their views on what they observe during the process.

"When we're presented with a problem over a family we'll often ask for a psychological report or a social worker's report - that can take months. It's a just and fair thing to do, but it eats up the time. I would much rather do it totally differently and, say, get a psychologist's expert view at a hearing. I'd rather get a pure clinical view than wait months and months for a report."

Judge Boshier is not in favour of the mediator role falling to the lawyer for the child because he's concerned that may blur boundaries - effectively changing the role to that of a lawyer assisting the court, rather than one of advocating for the child.

The role of the lawyer in the less adversarial process is different too. More emphasis is on educating clients about the objectives and the need to focus on their children, and advising them on addressing the judge.

In Australia there have been concerns that with the judge talking directly to the client, the lawyer's role is not required, that the new streamlined and simplified process makes it much easier for self-representation. But from her experience in Australia, Nicola Adams says most parents are happier having a lawyer with them in court, and that the legal role is expanded, especially when acting as a children's representative.

Then there's the question of whether a court system that's already suffering from delays can cope with extra demands on judges' time. Judge Boshier agrees the pilot scheme will create a rostering challenge. But he says there should also be fewer affidavits and thick court files, less administration, and less evidence assembled because the judge will direct the process.

"Hearings will be shorter. We can say we don't want to hear from your neighbours and parents and your auntie. But we do want to hear from a schoolteacher and the supervisor and the person that says you appeared to be under the influence of alcohol last weekend when you had the children."

Judge Boshier says in many cases the issues are apparent to judges early on in the proceedings. "It's just that the parents can't see it."

While it may appear that parents' rights are being reduced because the court is assuming greater control, Judge Boshier says parental rights are secondary when children are being sacrificed to the parents' wish to injure each other through the court process.

"But we also need to recognise that parents caught in this situation are often embroiled in the most difficult crisis of their lives. Some cope less well than others. Most need help. Some urgently."