National Early Intervention Programme - Family Court
The Auckland District Law Society recently ran the following article in it's member's publication, LawNews. The article is reproduced here.
A programme which has achieved an 84 per cent success rate in resolving cases involving disputes between parents about children will be rolled out in the Family Court nationwide from early next year.
Principcal Family Court Judge, Peter Boshier, said that from March 2010 the Family Court would initiate a national programme to intervene sooner in urgent cases and to place more determined emphasis on mediation for non-urgent or routine cases.
The decision comes following a two year pilot of a Parenting Hearings Programme which was run in the Auckland, Tauranga, Rotorua, Palmerston North, Wellington and Dunedin courts.
The programme was used in two types of cases
*intractable cases in which there had been an ongoing failure by parents to reach agreement over issues relating to children at counselling and mediation, and
*urgent cases in which there was a high risk or an emergency situation.
Judge Boshier at the time the pilot was announced described the latter cases as ones which caused him deep anguish and concern.
Cases suitable for the programme were identified and given an initial, two-hour court hearing date within 14 days.
Before going to court, parents watched a DVD explaining the process, emphasising how important it was for them to put their children first, and outlining the impact on children of parental hostility.
At the hearing, parties spoke directly to judges themselves with the aim of identifying the issues in dispute and seeking to resolve them on the spot.
If all matters were not resolved at the initial hearing, a date for a final hearing was set within two months.
A key goal of the process was to reduce the amount of delay and harm caused by the filing of large amounts of irrelevant evidence.
Presiding judges accordingly made specific directions as to what evidence could be filed for the final hearing and judges played a more active role in directing the course of the proceedings.
Judge Boshier described the evaluation of the pilot as positive, and said that it had highlighted the importance to litigants of judicial decisions being made at the earliest opportunity, as well as the value of parties being able to talk directly to judges.
However, he acknowledged that the programme had not resolved cases as speedily and completely as had initially been intended.
Despite that, he said that surveyed users of the Family Court said that they felt that the timeframes were about right.
Some family lawyers expressed concern at the time that the pilot began about the speed with which it was being introduced.
They were also disappointed that two aspects of the Australian programme, on which the New Zealand model was based, were not included in the pilot.
These were the presence of mediators at hearings and consent by parents to entering the programme.
Input from mediators at hearings has been regarded as crucial to the success of the Australian programme, but there was no funding for them to be present at New Zealand hearings.
Judge Bosher said that, since receiving the evaluation, Family Court judges had discussed which model might be most suitable for nationwide use in New Zealand.
Rather than rolling out the Parenting Hearings Programme, it had been decided to implement an Early Intervention Programme which had been used in Christchurch.
He said that the programme, which had operated this year, had been highly successful.
The key to its success had been the use of expert lawyers, appointed as Counsel to Assist the Court, to conduct mediations.
A success rate of 84 per cent had consistently been achieved.
Judge Boshier said that the judges had decided to use the Christchurch model, but also to incorporate important messages contained in the Parenting Hearings Programme evaluation.
The new model would be called the National Early Intervention Programme.
It would involve assessing all applications received by the Family Court so that they could be placed on the appropriate tracks from the beginning.
Applications regarded as urgent because they were made without notice or according to certain specific grounds would be placed on an urgent track.
This would involve the appointment of a lawyer for the children.
A Chambers meeting would confirm whether or not the case should proceed on the urgent track and would enable judges to make standard directions.
A 15 minute Judicial Conference would take place within 14 days of the Chambers directions being made.
All parties would file memoranda as to the issues and specific direction would be made either for an urgent hearing, or for the case to be transferred to the standard track.
An eight week timeframe would be allowed for the process to this point.
A half day defended hearing would then take place within 42 days, including consolidated defended domestic violence proceedings if they were required.
Judges would at the conclusion give specific direction for progression of the proceedings.
Judge Boshier said that there would be strict expectations in terms of the steps to be taken, directions to be given and complied with, and times for the disposal of cases.
Many domestic violence cases would head down that path.
The second track would be a standard track, which would use the Christchurch model.
Lawyers for children would be appointed if a defence was filed or they were otherwise required.
Counselling would take place within six weeks, followed by counsel or judge-led mediation within 12 weeks.
Judge Boshier said that counselling would be more strictly monitored than at present.
It would take place before lawyers or judges, as the Family Court Matters legislation allowing for family mediators had not yet been implemented.
Cases not resolved by mediation would head directly to 45 minute, Rule 175 conferences, which would involve direct engagement between judges and parties to see whether or not settlement could be achieved.
If agreement was not reached, specific directions would be issued to ensure that the case would be disposed of efficiently.
Orders would not be made at such conferences without consent.
Judge Boshier said that the Christchurch experience had been that such conferences resolved the majority of non-complex cases.
However, if there was still no settlement, a half-day hearing could be expected within two to four weeks.
The nature of an urgent hearing has often been enough to bring a sense of reality to Family Court litigants. Where cases are complex and must inevitably require more time for hearing, the Early Intervention Programme will no longer apply. Both the Parenting Hearings Programme and the Christchurch programme have emphasised the need for focusing on the issues and thereby limiting evidence and examination of those issues at hearing.
Judge Boshier said that the greatest frustration which Family Court judges continued to experience related to the presentation of issues and evidence not relevant to childrens welfare.
There will be challenges for all participants in the Family Court process in meeting the need for greater clarity of focus, but the Christchurch experience has been that this has been welcomed, especially by the lawyers of the Family Court.
By Catriona MacLennan
(With kind permission from ADLS Inc)