New rules for Family Court less adversarial

The Family Court is introducing a less adversarial process for difficult childcare cases, enabling parents to talk directly to the judge and aiming to reduce delay and costs in the system.

"The new model changes the rules of the game," said principal Family Court judge Peter Boshier announcing the Parenting Hearings Programme yesterday.

"Battlelines are discarded for dialogue; experts are called in to help, and the court assumes the role of not simply making a final decision but managing the process through all its stages."

The programme begins in November as a two-year trial in the Auckland, Tauranga, Rotorua, Palmerston North, Wellington and Dunedin Family Courts

Judge Boshier said a serious shortcoming of the existing adversarial process in children's cases was that it often escalated conflict between parents, and could damage the relationship between the child and one or both of the parents.

"It can also turn the litigation process into a slagging match of allegations and counter-allegations. This can create animosity between the parents, making future agreements very hard to reach."

Instead of a single, climactic formal hearing after a lengthy build-up of procedural and semi-judicial appearances, the new judge-led process begins with a preliminary hearing within 14 days of a judge's decision to enter the case into the process. A key aspect is the parties putting their position to the judge in their own words.

The same judge then presides over the entire process, directing what issues are to be addressed, in what way it should proceed, and cutting out many irrelevant affidavits and witness summons.

"The aim of this hearing is to identify the key issues that need to be resolved and, where possible, resolve those issues there and then," said Judge Boshier.

For cases that could not be immediately determined, the judge would direct a final hearing, which would take place within two months

Judge Boshier said the traditional model for resolving disputes, where parents filed affidavits, and psychologist and social worker reports were requested, took too long to get to court. It was also a model - with lawyers for each parent and the child cross-examining evidence - that allowed the parties to set the direction and pace of litigation.

"When the parties drive the court process it can be difficult to achieve a solution. Animosity between them can completely obscure their view of what is in the children's best interests."

That resulted in parents becoming frustrated.

"They have been often caught in a deadly game of chess where the rules meant that no one would win and the clear losers are the children."

The new process will mean a different role for lawyers, with more emphasis on educating their clients about the objectives and the need to focus on their children, advising them on addressing the judge, plus picking up on issues that may have been left out.

The streamlined approach is based on a similar process, the Children's Case Programme (CCP), implemented in Australia. An assessment of the Australian scheme showed fathers reported more contact with their children, parents were more satisfied with the living arrangements of the child after the process, and rated their children as happier than their counterparts in the traditional process.

Australian parents also reported less acrimony and lower conflict after undergoing the programme - 73 per cent of parents in the CCP said there had been either an improvement or no change in their parenting, whereas 70 per cent of those in the mainstream group reported the process itself had a negative impact on them as a parent.

Two types of case will be eligible for the Parenting Hearings Programme - where there has been an urgent application, often involving violence, for a "without notice" parenting order, and cases that have been through the conciliation process (counselling and mediation) without resolution.

Judge Boshier said the most difficulties were in the 5 per cent of cases (about 530 a year) where the parties required a court hearing.

"These cases have shown that without very close management they can become completely bogged down, with the parties in irreconcilably entrenched positions, and can drag on indefinitely."