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Caldwell, John --- "Family proceedings concerning children; the nature of Natural Justice" [2010] OtaLawRw 7; (2010) 12 Otago Law Review 345

Last Updated: 25 February 2012



Family Proceedings Concerning Children:

The Nature of Natural Justice

John Caldwell*

Following the completion of the two year trial of the Parenting Hearings Programme, a pilot scheme designed to deal with the more difficult cases arising under the Care of Children Act 2004, the Family Court in April 2010 embarked upon a new model of dispute resolution, the Early Intervention Process (EIP). Under this scheme, closely modelled on the eariler Christchurch Early Intervention Programme, any application made under the Care of Children Act will be initially assessed to determine which of two alternative pathways should be followed: either an ‘Urgent’ Track, especially relevant in domestic violence cases, or the more usual ‘Standard’ Track. Under that latter path, of greater interest in this analysis of natural justice issues, specialist mediation will follow counselling, with counsel appointed to assist the court currently acting as the mediators. On the basis of the Christchurch experience, it is hoped the great majority of cases will be settled at the counselling and mediation stages.1

If following mediation, the matter should still remain unresolved, then a 45 minute Judicial Conference is convened under r 175 of the Family Court Rules 2002. This Conference involves “direct engagement” between a Family Court judge and the parties, with a view to determining whether settlement can be achieved.2 Failing any such settlement, then “focused directions” will be issued by the Judge to ensure “efficient disposal” of the proceedings,3 and the matter typically thereupon heads for a half day hearing within the following two to four weeks. In the more complex cases, however, the EIP can be exited altogether, and a full hearing is held.

Although the EIP model does diverge quite significantly from the national Parenting Hearings Programme (PHP), a clear theme underpinning and linking both the programmes is the requirement for Family Court judges to control more actively the presentation of evidence and issues,4 and to act thereby in a more inquisitorial manner. As such, the EIP is destined to differ markedly from the orthodox adversarial processes usually found in a court of law. While it was reported by Principal Judge Boshier that the Christchurch Early Intervention Programme had been


* Assoc Prof John Caldwell, School of Law, University of Canterbury.

1 Between January and August 2009, 80.6 per cent of the 355 cases in

Christchurch were settled at this early intervention stage: The Press (New

Zealand, 16 January 2010) at A7.

  1. Principal Family Court Judge Boshier, Media Statement, 4 December 2009, published in 2009 (12) The Family Advocate (Issue 1) at 7.

3 Ibid.

4 Ibid.


welcomed by Family Court lawyers,5 a Ministry of Justice Evaluation of the PHP pilot had conversely disclosed that 53% of surveyed lawyers with more than 10 years experience, and 33% of lawyers with up to ten years experience, had expressed distinct philosophical concerns over the PHP. 6

The concerns of the surveyed lawyers had specifically related mostly to issues of natural justice, especially an alleged lack of opportunities for lawyers to speak on behalf of clients and cross-examine;7 and the

2009 Report arrived at the conclusion that issues of natural justice may well warrant further attention.8 Those concerns over natural justice had actually first been identified by Zondag following his own separate surveys of Family Lawyers, and were particularised by him as “serious”.9 Indeed, Zondag’s surveys, conducted at the end of 2007 and 2008, revealed that many practitioners had reported an “alarmingly low”compliance with the rules of natural justice,10 and that they thought the PHP sacrificed too much by way of procedural safeguards in exchange for relatively minor advantages.11

While these surveys of Zondag had also shown that most lawyers believed inquisitorial processes to be appropriate for the Family Court,12 the official Ministry Report did uncover underlying unease relating to over-directive judges13 and it could realistically be anticipated the same anxiety is likely persist, at least in a residual way, with the EIP. Neither the Ministry evaluators nor Zondag, however, had directly raised the question with the respondents of how they ideally would have expected and wished the natural justice principles to operate in the context of proceedings under the Care of Children Act 2004; and this article therefore aims to examine the crucial question of how the principles of natural justice, with their genesis in the common law’s adversarial system, should apply to a judicial inquiry into a child’s welfare and best interests.

5 Ibid.

6 Waggs and Harland Research Report: The Parenting Hearings Programme

Pilot: Evaluation Report (Ministry of Justice, September 2009) at 65.

7 Ibid, at 19-20, 63-66, 80. Interestingly, though, 59 per cent of lawyers did

believe they had the opportunity to cross-examine when necessary: at

para 10.1.1.

8 Ibid, at 66.

9 Zondag “The Parenting Hearings Programme – into a brave new world?”

(2009) 6 NZFLJ 189 at 199.

10 Zondag “The Parenting Hearings Programme half way through its pilot:

A view from the Bar” (2008) 6 NZFLJ 12 at 17 (in relation to the 2007

survey).

11 Zondag “The Parenting Hearings Programme pilot: the family Bar remains

unconvinced” (2009) 6 NZFLJ 134 at 143.

12 Ibid, at 140, 146. For a comparable Australian study of legal practitioners,

see Hunter “Practitioners’ Views of the Children’s Cases Programme”

(2007) 19 Australian Family Lawyer 23.

13 Research Report: The Parenting Hearings Programme Pilot: Evaluation Report

above n 6, at 63-66.


The content and ambit of the principles of natural justice

The notion of “natural justice” might well be one of considerable antiquity, but it continues to remain of inherently uncertain and flexible application. In essence, the key common law principles of natural justice, affirmed and emphasised in s 27(1) of the New Zealand Bill of Rights Act

1990, are familiar and two fold:14 first, the parties to a dispute must be given adequate notice and the opportunity to be heard, the audi alteram partem principle; secondly, the decision maker must be disinterested and unbiased, the nemo iudex in sua causa principle. However, while the general ambit of these two major principles, as just stated, is perfectly well- understood, the precise application of the principles has never been susceptible to a rigidly formulaic approach. For, as recently reiterated by Glazebrook and Hammond JJ, the extent of the natural justice requirements depends entirely on the nature of the decision in question and the relevant circumstances.15 Because of this innate fluidity, it is generally more helpful to speak in terms of the “principles” rather than “rules” of natural justice, as the rigidity typically associated with prescriptive “rules” is the exact antithesis of what the courts require by way of procedural fairness.

In consequence, the critical question in most cases is not whether the principles of natural justice will apply, but rather what the duty to act fairly will require in the particular circumstances of the particular case.16

The answer to that will be controlled by the nature and functions of the particular decision-making body and the scope of the particular decision. Thus, where the decision-making body in question is a Court of general jurisdiction it could normally be expected that natural justice would apply in its “full rigour”.17 Accordingly, in one early case, concerning the making of a paternity order, the High Court ruled that the avoidance of unnecessary formality for the Family Court did not permit the Court to depart from “well established principles” of natural justice, which were stipulated by Bisson J to form an “integral part of a fair trial”;18 and, more recently, it was held by Heath J to be “unanswerable” as a matter of natural justice that the Family Court should have heard the parties before deciding to publish their names.19 In the context of proceedings under the Children Young Persons and Their Families Act 1989, the Court of Appeal also recently held that judicial review was arguably

14 See the general discussion of Glazebrook and Hammond JJ in Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 426; [2009] 2 NZLR 56 (CA) at [11].

15 Ibid. See also the observations of McGrath J in Taunoa v Attorney-General

[2007] NZSC 70; [2008] 1 NZLR 429at [376].

16 As held by Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 585.

17 Martin v Ryan [1990] NZFLR 209 (HC) at 226.

18 Hughes v Martin (1983) 2 NZFLR 20 (HC) at 23 per Bisson J, cited with

approval in BSH v Ministry of Social Development HC Wellington CIV-

2009-485-403, 13 August 2009 at [29].

19 Skelton v Family Court at Hamilton (No 2) [2007] NZHC 273; [2007] NZFLR 994 (HC) at

[105].


available in the particular case for possible breaches of natural justice by two Family Court judges.20

Nevertheless, even in proceedings conducted by a Court of law, the precise nature of the judicial proceedings and power will inevitably affect the extent to which a plenary right to be heard may be modified, as the audi alteram partem principle can be excluded from particular curial proceedings either by legislative express provision or by “necessary implication”.21 If an unqualified application of the principles should frustrate the very purpose for which the legislative jurisdiction was conferred on a particular Court, then the strength of application of those principles must be modified.22 Accordingly, in proceedings under the Care of Children Act 2004, the principles could never be invoked in a manner that would defeat or undermine the Family Court’s ultimate statutory goal of promotion of the child’s welfare and best interests.

Subjection of natural justice to the paramountcy principle

In ordinary civil contests between adult parties the principles of natural justice are assumed to provide the best means of achieving the ultimate goal of good quality substantive decisions on the various contested points of fact and law.23 In child law disputes, however, the judge is charged with a rather different task from that encountered in a lis inter partes in civil or criminal proceedings;24 for, as analysed further below, family proceedings have long had a distinctly inquisitorial flavour.

These inquisitorial aspects do not, of course, allow the proceedings to be conducted in a procedurally unfair manner. Nevertheless, the legislative task imposed on a Judge of determining which of a range of options will best promote the child’s welfare dictates that any argument grounded on the alleged need for a fair ‘trial’ between opposing parties will normally carry comparatively little weight. Hence, in the much-cited, landmark decision, Official Solicitor to the Supreme Court v K, the House of Lords held that the normal natural justice requirement of disclosure of relevant reports did not apply in wardship cases,25 with Lord Evershed roundly affirming that the principles of natural justice must serve and not thwart the purpose that the proceedings are intended to achieve.26

20 L v Chief Executive of the Ministry of Social Development [2009] NZCA

596.

21 See for example the observation of Lord Fraser in Forrest v Brighton Justices;

Hamilton v Marylebone Magistrates’ Court [1981] 2 AllER 711 (HL) at 713.

The possibility of the natural justice principles being legislatively excluded

was also acknowledged by Fisher J in Martin v Ryan n 17 at 226.

22 See the comment of Brennan J in J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 at 457.

23 See for example the dictum of Richardson J in Fraser v State Services

Commission [1984] 1 NZLR 116 (CA) at 124.

24 See the discussion of Thomas J in S v S [1993] NZFLR 657 (HC) at 665

(aff’d S v S [1994] NZFLR 26 (CA)).

25 Official Solicitor to the Supreme Court v K [1965] AC 201 (HL).

26 Ibid, at 219. Similarly, see the discussion of Lord Devlin at 237-241.


Dealing with an analogous issue of the scope of litigation privilege in protective care proceedings, Sir Stephen Brown P in the English Court of Appeal had likewise reasoned that the paramountcy principle must override every other consideration, 27 and Steyn LJ had proferred the view that the undoubted interest served by litigation privilege yielded to the greater value attached to the legislative purpose of making the child’s welfare the sole criterion.28 Australian law has proved entirely cognate in approach. The High Court of Australia has thus held that the paramountcy principle can override the privilege of a client to require a solicitor to withhold disclosure of his or her present whereabouts,29 and the Full Court of the Australian Family Court has declared that the normal privilege attaching to settlement negotiations did not apply where the father had made an offer that was clearly adverse to the child’s welfare.30

Exactly the same judicial sentiments can be found in the New Zealand case-law on natural justice. Thus, in making comment on the procedural requirements surrounding judicial interviewing of the child in Care of Children Act proceedings, Baragwanath J held:

... the important principles of natural justice, in their application to what I would call the subordinate parties to the litigation, may well be trumped where to give effect to them would imperil the interests of the primary party, the child.31

Likewise, Gendall J readily conceded that the ordinary principles of natural justice could be displaced by the overriding paramountcy principle in any custody, access and guardianship matters under the Guardianship Act 1968.32 And, at a more specific level, Gallen J, cited the House of Lords judgment in Official Solicitor v K to hold that the paramountcy principle was sufficiently strong to override the normal principle that a party should have access to material which may have a bearing on the conclusion.33 The judgment was likewise applied by Judge Inglis QC in reaching his finding that the paramountcy principle allowed the Court to intervene to stay a custody application by a father.34

On many occasions no particular difficulty or tension will ever arise in guardianship or parenting order proceedings – for the respective needs of procedural fairness for the parents, on the one hand, and child welfare

27 Oxfordshire County Council v M [1993] EWCA Civ 31; [1994] 2 AllER 269. See also the majority decision of the House of Lords in Re L (A Minor)(Police Investigation: Privilege) [1997] AC 16.

28 Ibid, at 280-282.

29 R v Bell; ex p Lees [1980] HCA 26; (1980) 146 CLR 141.

30 Hutchings v Clarke [1993] FamCA 22; (1993) FLC 92-373 (the father had offered to trade

custody of the child for a financial advantage).

31 Albert v Beatrice HC Auckland CIV-2006-404-3930, 19 December 2006 at

[39].

32 T v Attorney-General [1999] NZFLR 886 (HC) at 894.

33 M v B [1993] NZFLR 487 (HC) at 491-493.

34 T v M (1988) 5 NZFLR 252 (FC).


considerations, on the other, can often happily co-exist and be met. Indeed, given the content of the natural justice principles is tailored to the proceedings in question, it will usually prove helpful for the inquisitorial process and goals if the parents, who have the primary responsibility for nurturing and caring for the child, are “heard” on various questions of fact relevant to the Court’s decision on welfare.

Furthermore, taking a somewhat different tack, Gendall J once held he could not contemplate a situation where it would be appropriate to ignore a person’s rights to be heard on a substantive matter such as the “rights” of a guardian if there was no question of urgency and the child was not under the guardianship of the Court. 35 Emphasising that the leading House of Lords authorities such as Official Solicitor v K had never declared that parental rights to be heard were actually abrogated by the inquisitorial processes of family proceedings, his Honour insisted that the subjection of the normal understandings of natural justice to the paramountcy principle under the Guardianship Act

1968 might well only occur in “rare” cases.36 Likewise, in the different context of State intervention under the Children, Young Persons, and Their Families Act 1989, the Court of Appeal simply assumed that the orthodox requirements of natural justice would apply to Family Court judges’ decision-making.37

On the other hand, the New Zealand Court of Appeal has also made it clear that any so-called “rights” of a parent in Care of Children Act proceedings must be understood to be of a highly qualified nature.38

Accordingly, any parental interests and responsibilities must be treated as conceptually quite different in nature from the “rights” that normally attract and demand strict procedural requirements. In consequence, although the so-called “rights” of parents under the Care of Children Act constitute a plausibly sound reason for invoking the principles of natural justice, the concomitant child welfare context will usually preclude the application of those principles in any full-blown form. The child’s welfare will always take precedence.39

The inquisitorial nature of cases concerning children

While the majority of the world presently uses some version of the

“inquisitorial” system of justice,40 the familiar common law tradition

35 R v R [2003] NZFLR 200 (HC) at [23], [29]. His Honour at para [30] adopted the reasoning of Lord Nicholls in a dissenting judgment in Re L (A Minor)(Police Investigation: Privilege) [1997] AC 16.

36 R v R, ibid, para [23], [29].

37 L v Chief Executive of the Ministry of Social Development, above n 20.

38 For example, see the analysis of guardianship ‘rights’, in the context of a

relocation dispute, in D v S [2001] NZCA 374; [2002] NZFLR 116 para [29].

39 See the observation of Chisholm J in M v S [2000] NZFLR 968 (HC) at

[39].

40 The point made by both Sward “Values, Ideology and the Evolution of

the Adversary System” (1989) 64 Ind LJ 301 and Lord Browne-Wilkinson,


and culture means that many lawyers trained and socialised in the English-speaking Law Schools instinctively attach somewhat pejorative connotations to the concept of “inquisitorial” judging.41 As Lord Simon once put it, the Inquisition and Star Chamber were decisive.42

On the other hand, it is “settled” law in New Zealand that the Family Court’s jurisdiction over children in proceedings under the Care of Children Act, or the earlier Guardianship Act 1968, is best classified as “inquisitorial” in nature.43 Thus, long-established and uncontentious provisions found in the Care of Children Act allow a Judge to call witnesses of his or her own motion, commission social work and expert reports, appoint a lawyer to act for the child, and receive any evidence he or she thinks fit.44 Unusually, the Family Courts 1980 provides that the curial proceedings must be conducted in such a way as to avoid unnecessary formality.45 Moreover, in terms of established judicial practice, it is also well accepted that judges will investigate any welfare concerns raised by children,46 converse in private with the children, and not insist upon any onus of proof.47 When tested against adversarial orthodoxy, all these provisions and judicial powers are quite remarkable in their nature, and paint a picture far removed from that of a distant, dispassionate and uninvolved adjudicator presiding over the traditional adversarial combat. The reason for this, of course, is that a judge’s role in disputes concerning children is not to determine adult rights but rather to engage in a wide, multi-factorial inquiry into the best available care options for the child. In brief, the role is inquisitorial.

The early intervention initiatives of recent years have thus merely

enhanced the already pre-existing inquisitorial flavour of proceedings

extra-judicially “The UK Access to Justice Report: A Sheep in Woolf’s clothing” (1999) 28 UWALR 181, at 191.

41 See the point made by the former Chief Justice of the Family Court of Australia, Alastair Nicholson, “Family Reform – How Much Real Reform is Involved? Does It Take Us Forward Or Backwards” (ACT Council of Social Service, Canberra , 17 August 2006) 21: <www.ssps.unimelb.edu. au/about/staff/profiles/nicholson>.

42 D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 at 231. Similarly, consider Lord Denning’s analysis of the adversarial system in Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 at 63-64.

43 See the comment of Heath J in Skelton v Family Court at Hamilton (no 2) [2007] NZHC 273; [2007] NZFLR 994 (HC) at [71], citing P v K [2003] NZFLR 489 (HC); also Y v X [2003] NZFLR 1126 at [55]. Similarly, see K v K [2005] NZFLR 28 (HC), at [62]; and in T v Attorney-General [1999] NZFLR (HC) 886 Gendall J had opined that the process of the Family Court was “rather more inquisitorial than adversarial” (at 894).

44 See, respectively, ss 129, 132, 133, 7, and 128 of the Care of Children Act

2004.

45 Family Courts Act 1980, s 10(1).

46 See H v W (2000) 19 FRNZ 99 (CA) at [14]. Blanchard J, delivering

the judgment of the Court, noted that this would be done through

independent counsel.

47 McDermott v Kena [2001] NZFLR 954 (FC) at [27].


concerning the care and guardianship of children. And, if, as has been argued by Mason, the defining characteristic of the adversarial system, in contrast to the inquisitorial, is an emphasis on strict procedural fairness for the parties,48 then any reduced rigour in the application of traditional natural justice principles for the adult parties in either the PHP or EIP should not be regarded as particularly exceptionable. Reduced adversarialism and reduced stringency in procedural obligations go hand in hand. Certainly the case for the acceptability of a diminution of adversarial processes in Family Court cases concerning children gains considerable strength when the wider contextual background comes to be considered.

(i) Alternative dispute resolution

The Care of Children Act 2004 endeavours to ensure that most routine disputes are resolved through the mechanisms of counselling and mediation conferences;49 and the statute now also contemplates that non-judge led mediation may take place in the future.50 Under the current EIP it has also been decreed that counsel to assist the Court may be appointed as mediators until such time as the statutory amendments on independent mediation come into effect. While some of New Zealand’s leading family law commentators have previously raised pertinent philosophical questions about some aspects of the existing alternative dispute resolution measures or proposals,51 and the expedient of appointing an amicus curiae as mediator must surely strain the jurisdictional boundaries,52 the putative goal of the avoidance of adversarialism that is promoted by counselling, mediation, mediation conferences, parent education programmes and the like, is almost universally shared. And the relevant point to be made here, is that in both the counselling and independent mediation processes the emphasis is obviously on human rather than legal fairness. Hence, during the early stages of the proceedings (where the vast majority of cases are


48 Fife-Yeomans “The Future of Adversarial Justice: A comentary on the paper by Sir Anthony Mason” (Commentary presented to Australasian Institute of Judical Administration, Adelaide, August 1999): <www.aija. org.au/online/mason.rtf> at 5.

49 As noted by Judge Inglis QC in C v C (2002) 22 FRNZ 767 at [27].

50 Various provisions on independent mediation, such as s 46X, are to come

into effect as from a date to be designated by Order in Council: Care of

Children Amendment Act 2008, ss 2 and 8.

51 For instance, see Henaghan and Barry’s telling critique of the Mediation

Conference system, “Mediation in the Family Court” (1986) 1 BFLB 84,

and Atkin’s concerns over non-judge led mediation in “Harmonising

Family Law” (2006) 37 VUWLR 465 at 481.

52 See the discussion of the Court of Appeal on the role of amicus curiae

generally in Beneficial Owners of Whangaruru Whakaturia No 4 v Warin

[2009] NZCA 60; [2009] NZAR 523 at 527-528. Section 130(2) of the Care

of Children Act 2004 also presupposes a traditional role for counsel

appointed to assist the court.


normally resolved)53 adversarialism is avoided, and, while the adoption of formal processes would be expected in both non-judge led mediation and mediation conferences,54 procedural niceties are peripheral to the achievement of a conciliated outcome.

(ii) Case management

Internationally, there has been a significant and pronounced trend towards managerial judging in all areas of law,55 and this must also inevitably have a discernible impact on modern understandings of the appropriate boundaries of the judicial role in dispute resolution at large. Thus, in a far-reaching and influential Report on the English civil justice system, delivered in 1996, Lord Woolf argued that strong judicial case management was crucial for the needed proposed reforms and fell within the judge’s proper function.56 In the wake of the ensuing reforms, the English judges were required, as recently reported, “...to change their culture, be less passive, roll up their sleeves and get stuck into becoming case managers”.57 Kirby J, delivering judgment in a High Court of Australia decision, has similarly stated that case management functions were now regarded as a “necessary and orthodox” part of the Australian judicial function.58

In the specific New Zealand Family Law context, Paterson J accepted that it was now necessary for a “particularly busy” court such as the Family Court to case manage files,59 and, likewise, the Australian Family Court has observed that the principles of case management were also assuming “greater prominence” in that specialist Court.60

53 For example, research in 2003 revealed that 95% of guardianship applications were resolved without the need for adjudication: Judge von Dadelszen, “Mediation and other forms of court assisted negotiations in New Zealand”: <www.justice.govt.nz/courts/family-court/ publications/speeches-and-papers> at 1. See also above, n 1.

54 As pointed out by Zondag “Family law and court administration: access to justice and getting the organisation basics right” (2009) 6 NZFLJ 223 at 229.

55 See Hansen “Courts Administration, the Judiciary and the Efficient Delivery of Justice: A Personal View” (2006) 11 OLR 351 at 372, Zander “The Woolf Report: Forwards or Backwards for the Lord Chancellor” (1997) 16 CJQ 208, 215, and Resnick “Managerial Judges” (1982) 96

Harv LR 376. On case management in overseas Family Courts, see Hardcastle “Adversarialism and the Family Court: A Family Court Judge’s Perspective” (2005) 9 UC Davis J of Juv L and Pol’y 57, and Thompson “The Evolution of Modern Canadian Family Law Procedure: The End of the Adversary System? Or Just the End of the Trial?]” (2003) 41 Fam Ct Rev 155.

56 Woolf Access to Justice: Final Report to the Lord Chancellor on the civil justice system in England and Wales (London: HMSO, 1996) at 14.

57 Dame Hazel Genn The Hamlyn Lectures 2008: Judging Civil Justice,

(Cambridge University Press, 2010), 126.

58 State of Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146 at 168.

59 Hirstich v Kahotea [2001] NZHC 1216; (2001) 21 FRNZ 474 (HC) at [18].

60 Tate v Tate [2000] FamCA 1040 at [99].


The acknowledged and intended objectives of this case management – encouragement of the early resolution of disputes and reduction of trial time – obviously do result in a very significant tilt of the balance between judicial and party control of litigation in favour of the judicial;61 and Kirby J has observed that some would suggest the judicial role was in fact now moving towards the interventionist model of the civil law.62 Once again, this marked conceptual linkage between established case management techniques and the new early intervention models such as the EIP must shape the legal community’s thinking on the appropriateness of these new forms of legal process. After all, the models are, at least to some extent, simply variants of “intensive” case management.63

(iii) Self-represented litigants; and the District Court Rules 2009

One of the key goals of case management has been that of ensuring the optimal use of limited judicial resources. This, in turn, has been prompted by “the exponential growth” in numbers of self-represented litigants, a recent notable feature of the New Zealand legal landscape.64

In response to the self-represented litigant phenomenon, and other systemic problems in the civil justice system based on a defended witness action, the new District Court Rules 2009 have brought into being a veritable “philosophical sea change” to the litigation process.65 With the fundamental goal of these farreaching Rules being the “just, speedy, and inexpensive” determination of proceedings,66 a demonstrable emphasis on settlement is evident throughout and the trial has ceased to be the primary focus. While the Rules do not apply to proceedings governed by the Family Court Rules 2002,67 the sweeping changes made to the traditional party-led adversarial processes in the District Court (of which the Family Court is a specialist division) again provide further important markers of current legal thinking on the requirements of procedural fairness in the more specialist family arena.

(iv) Developments in other areas of law

In evaluating the wider procedural context in which the PHP and EIP models have been introduced into Family Law, it is interesting to observe that New Zealand Law Commission, in its 2007-2008 Annual

61 As pointed out by the Australian Law Reform Commission in Review of the Adversarial system of litigation: Rethinking family law proceedings (Issues Paper 22, 1998) at para 8.3.

62 State of Queensland v JL Holdings above n 58 at 168-169; see also, though, the warning of Dawson, Gaudron and McHugh JJ that case management considerations cannot be allowed to justify injustice (at 155).

63 A suggestion made by Zondag n 55 at 226 in relation to the Christchurch

Early Intervention Programme.

64 See the comment by Judge Doherty et al in The New District Court Process

– a radical change (NZLS, Family Law Section and Property Law Section,

August 2009) 2.

65 Ibid, at 1.

66 District Court Rules 2009, r 1.3.1.

67 Ibid, r 1.5.2.


Report, labelled as “disturbing” some of the features of the adversarial trial process applying to sexual offences.68 Following that Report, the Government in 2009 directed the Law Commission to investigate inquisitorial models.69 It had thus become apparent that even in the criminal law context, traditionally thought to be peculiarly reliant upon observance of strict adherence to traditional procedural safeguards, belief in the adversarial system was patently beginning to weaken.

In the same year the Government enacted the Disputes Tribunal Amendment Act 2009, that essentially doubled the monetary jurisdiction of the Tribunals. The Minister in his First Reading speech chose to highlight that the Dispute Tribunals, which exclude legal representation, provided a “more conciliatory approach to justice rather than the traditional adversarial court system”,70 and this was clearly depicted as a desirable attribute. Overall, then, when full regard is had to the wider contextual background, and the recent legislative and policy developments, the enhancement of the inquisitorial process in child care disputes does not represent an especially revolutionary break from prevailing cultural legal norms.

A new style of decision-making: PHP, LAT, and EIP

It has been seen that not only does the relevant family law framework already provide for a distinctively inquisitorial framework, but that the relevant case-law also provides additional robust reinforcement for an inquisitorial approach. In 2000 Judge Ryan speculated that we might have indeed reached the stage where the advantages for the Family Court of an inquisitorial system over an adversarial one were “readily accepted”.71

On the other hand, as already suggested, common law trained judges and lawyers have always had some understandable unease about radical departures from accepted litigation practice. Justice John Hansen thus recently made the extra-judicial suggestion, in relation to civil litigation generally, that some were simply too wedded to the adversarial process to consider change “objectively”;72 and the need for a greater degree of judicial intervention in family proceedings has certainly been challenged by a number of respected analysts in New Zealand.73

68 New Zealand Law Commission Annual Report 2007-2008,(R 105, 2008) at

12.

69 Power “The Criminal Justice System: Reform is coming” <www.beehive.

govt.nz/speech.criminal+justice+reform+coming>.

70 Disputes Tribunal Amendment Bill-First Reading (31 March 2009) 653

NZPD 2258.

71 “Case management and trial management in the Family Court in New

Zealand” (2000) 3 BFLJ 181 at 187.

72 Hansen “Courts Administration, the Judiciary and the Efficient Delivery

of Justice: A Personal View” above n 55, at 376.

73 See, for example, “Address by the Right Honourable Dame Sian Elias

GNZM, Chief Justice of New Zealand” (2000) 3 BFLJ 107 at 111. Tapp also

raised important queries as to the inquisitorial process: “Family Law”

[1999] NZ Law Review 443 at 451, and expressed some doubts over the


Some family law commentators and analysts, though, have shared greater enthusiasm for further advances in the inquisitorial process. For instance, in 1999 Judge Doogue and psychologist Suzanne Blackwell promoted greater development of the inquisitorial process so as to allow an early intervention, child-focussed inquiry.74 And, most significantly of all, adoption of early judicial intervention, and an accompanying inquisitorial approach, has long been an articulated goal of Principal Family Court Judge Boshier. In 1997, for instance, Boshier argued strongly for a “radical departure” from the “purist” adversarial approach,75 and he contended that especially in custody and access proceedings the permissible issues should be framed by the presiding Judge. Postulating that a Family Court Judge should advise what evidence was required, and that the parties should have no right to cross-examine, he concluded that the extent and nature of participation in the hearing should be defined for the parties and not by them.76 These proposals for a far more pro-active role to be conferred on the presiding judge, and for the adversarial elements in proceedings to be correspondingly reduced, were, of course, to be eventually reflected in the official blueprint for the PHP pilot, the 2006 Briefing Paper issued by the Ministry of Justice and Principal Family Court Judge.77

As Judge MacKenzie observed, the desired outcome and philosophical underpinning of the PHP, namely achieving better results for children, was to be brought about by improving the timeliness of decisions and ensuring hearings occurred in a way which enabled the parties to directly address the judge.78 Under this model, an important precursor for the EIP, control of proceedings resided unmistakably in the hands of the judge rather than the parties or their legal representatives, and the judge was given the tasks of identifying the relevant issues and determining questions of evidence and procedure.

Obviously enough this PHP style of decision-making was significantly different in design from traditional party-driven hearings, but Principal Family Court Judge Boshier was quite confident the scheme was jurisdictionally valid. Extra-judicially, he claimed the Court had the power to regulate its own process, irrespective of parties’ consent, provided only that this was done “within the rules, including the rules set by Parliament, and the rules of natural justice”.79 While it is unnecesary to

PHP style of decision-making: “Challenges the Family Court Faces” (2008)

6 NZFLJ 80.

74 Doogue and Blackwell “How do we best serve children in proceedings

in the Family Court?” (2000) 3 BFLJ 193.

75 See for example Boshier “What’s next after case management?” (1997) 2

BFLJ 149 at 152.

76 Ibid, at 152.

77 Briefing Paper: Parenting Hearings Programme (Less Adversarial Children’s

Hearings), Ministry of Justice, 6 September 2006. See, in particular, the

Introduction and Key Features, at 1.

78 AABB v HHTN [Parenting orders] [2009] NZFLR 371 (FC) at [11].

79 See Judge Boshier Principal Family Court Judge “Parenting Hearings


examine in this article the vires of the previous PHP (an intriguing issue which has been thoroughly canvassed elsewhere),80 the second specific matter raised by Judge, namely the extent to which the new models of early intervention can be said to comply with the “rules” of natural justice, does need to be explored. And here it is interesting to note that the official Briefing Paper for the PHP specifically identified the need for the process to comply with the principles,81 and that, in both judicial and extra-judicial analysis, Family Court judges were insistent that the principles of natural justice were both necessary and appropriately recognised in the PHP.82

In the equivalent Australian Less Adversarial Trials (LAT) system, a Practice Direction similarly posited that each party has the right to be heard in keeping with the principles of natural justice;83 and, extra- judicially, Judge Rose recently emphasised that the LAT did not in any way diminish the principles of procedural fairness.84 Delivering the judgment of the Full Court of the Family Court in an early leading case,85 Bryant CJ, Kay J, and Thackray J also ruled that procedural fairness must be accorded to the parties from the commencement of the LAT, without any compromise.86 Their Honours opined that procedural fairness required determinations to be made “impartially, on the basis of all relevant material that the parties were able to put before the trial judge, without any pre-judgment and that the parties were given an adequate opportunity to be heard”.87 That test as enunciated, though,

Programme: Less Adversarial Children’s Hearings” (Speech to Auckland

Family Courts Association, 14 September 2006) at 4.

80 After detailed analysis, Zondag concluded the PHP did lack a valid

jurisdictional basis: “The Parenting Hearings Programme – into a Brave

new World?” (2009) 6 NZFLJ 189 at 197; but compare Illingworth’s

impression that it “would be difficult to argue that the whole PHP is ultra

vires”: “Justice for Children” Family Law – Flying High (NZLS, Family

Law Section, Conference, 2007) 167 at 170. Extra-judicially, Judge Smith

identified a number of provisions in the Care of Children Act 2004, Family

Court Rules 2002, and the Evidence Act 2006 which could potentially

support the jurisdictional validity of the PHP: “Parenting Hearings

Programme: Less Adversarial Children’s Hearings (PHP)” “Family Law-

Flying High (ibid) 177 at 177-181 and “Success of the Parenting Hearings

Programme” (2009) 11 Family Advocate (Issue 1) at 6.

81 Parenting Hearings Programme (Less Adversarial Children’s Hearings) above

n 6, 5, 8.

82 See for example Judge Mackenzie’s dictum in AABB v HHTN [Parenting

orders] above n 78, at [13], and the extra-judicial observation of Judge

Smith in “Parenting Hearings Programme: Less Adversarial Children’s

Hearing (PHP)”above n 80, at 177.

83 Practice Direction No. 2 of 2006 para 6.3, (as set out in Truman v Truman

[2008] Fam CA(FC) 4 at [10]; also at [163]).

84 Rose, “The road to less adversarial trials and beyond” (2007) 21 AJFL 232

at 246.

85 Truman v Truman [2008] FamCAFC 4.

86 Ibid, at [163]; see also Crestin v Crestin [2008] FamCAFC 71 at [31].

87 Truman v Truman, above n 85, at [163].


was inevitably anodyne, and Fogarty’s contention is that the early case- law under the LAT evidenced an unfortunate acceptance of “rough and ready” and “dangerous” processes.88

Zondag, having cited Fogarty extensively and observed that the balance between a ‘rough and ready’ process and the “sometimes evasive” concept of procedural fairness had not been tested in relation to the New Zealand PHP process,89 went on to suggest, as seen above, that the far-reaching powers of the PHP had raised “serious concerns” amongst lawyers about natural justice.90 The surveyed lawyers’ concerns, though, may conceivably have been based on an incomplete understanding of the extraordinary fluidity of these principles, and it is unknown whether the concerned respondents had fully taken into account the fact that the natural justice procedures traditionally associated with ordinary private law litigation had never applied with full strength in care of children issues. After all, as also argued above, the High Court had always accepted that the specialist inquisitorial Family Court was likely to be given greater leeway to deal effectively with the subject matter of its jurisdiction than a Court of general jurisdiction.91

In the context of early intervention it is also interesting to reflect that the Family Court had claimed over fifteen years ago that the paramountcy principle controlled the procedure in guardianship and custody cases at “all stages” of the proceedings from the interlocutory steps down to final determination.92 As well, the Family Court had held that in the exercise of its inquisitorial function in complaint proceedings under the Children and Young Persons Act 1974 it was “bound in the public interest and in the interests of the child to get as near as it can to the truth and plainly has the power to direct the manner in which particular information is to be placed before the Court”.93 Thus, both the PHP and EIP processes are clearly referable to much earlier strands of thinking. Nor, when viewed solely through the natural justice lens, could either scheme be characterised as particularly startling in nature: after all, the voice of the adult parties was still expected to be heard (in fact more directly than in the past), and the judge was still required to be personally disinterested.

While the broad generalities, mooted above, as to the scope of the

88 Fogarty “Family Court of Australia – Into a Brave New World” (2009)

20(3) Australian Family Lawyer 1 at 21, with reference to cases such as

Truman v Truman n 86 and Dobbs v Brayson (no 2) [2007] FamCA 1511.

89 Zondag “The Parenting Hearings Programme – into a Brave New World?”

[2009] NZFLJ 189 at 198.

90 Ibid, at 199.

91 See for example the observation of Heath J in Y v X [2003] NZFLR 1126

(HC) at [77].

92 See for example the observations of Judge Inglis QC in Skedgwell v

Ewington [1992] NZFLR 641 (FC) at 643-644 and in T v M (1988) 5 NZFLR

252 (FC) at 253.

93 Department of Social Welfare v T (1988) 4 FRNZ 477 (FC) at 480.


principles of natural justice might well provide the most accurate insights that can be provided overall, there are, additionally, some specific natural justice issues associated with Care of Children Act proceedings that do warrant separate attention. Most especially, if a party should ever seek an order under the Care of Children Act 2004 on an ex parte basis, then particularly acute natural justice challenges are immediately and dramatically posed. The remainder of this article therefore turns to examine these ex parte orders and some of the other pertinent natural justice matters that can potentially arise in Care of Children Act proceedings.

Ex parte applications

Ex parte orders that serve to eradicate entirely any compliance with the principles of natural justice, (which, as an irreducible minimum, require each party to have a reasonable opportunity of presenting his or her case), have aptly been described as anomalies in our justice system.94

A few years ago the Law Commission observed they are amongst the most contentious of all Family Court issues.95

Most commonly, such ex parte applications will be lodged under the Domestic Violence Act 1995, but they are certainly from unheard of in the context of applications under the Care of Children Act 2004. Interestingly, when considering one such application under the Guardianship Act 1968, Judge Inglis QC speculated that regular exposure to ex parte applications under domestic violence legislation might have desensitised family lawyers to the accepted view that the ex parte procedure is “extraordinary and exceptional”;96 and, in another Guardianship Act case, his Honour pronounced that the more relaxed atmosphere of the Family Court did not justify a less rigorous approach to ex parte applications.97

The Family Court Rules 2002 do specifically allow ex parte applications under the Care of Children Act 2004 in circumstances where delay would or might entail serious injury or undue hardship or risk to the personal safety to applicant or child of the applicant’s family.98 It is, however, well accepted that an ex parte application under any family law enactment can only be made and granted in “special circumstances”,99 and it has been held that the judicial discretion to make an order ex parte must be exercised only “with reluctance and caution” and where a denial of


94 See the description of Judge Inglis QC in C v C (2002) 22 FRNZ 767 (FC)

at [30].

95 Dispute Resolution in the Family Court (NZLC, R 82, 2003) at 114.

96 Johnson v Hill [1996] NZFLR 1 at 6 (although Heath J was to hold that

an ex parte order under the Domestic Violence Act 1995 should only be

made in “extreme circumstances” Y v X [2003] NZFLR 1126 at [46]).

97 C v C above n 94, at [32].

98 Family Court Rules 2002, r 220(2)(ii); see also r 228.

99 See the leading judgment of Fisher J in Martin v Ryan [1990] NZHC 151; [1990] 2 NZLR 209

at 227 (a case on matrimonial property).


conventional natural justice is “unavoidable”.100 Thus, to take a recent example from Care of Children Act proceedings, the High Court found that the making of an interim parenting order without notice fell well short of the “exceptional” situation that would warrant proceeding without hearing a guardian.101

In order to establish the requisite exceptional need for an order that so flagrantly flouts the fundamental norms of natural justice, a strong evidential base clearly does need to exist, and the orthodox rules of evidence can accordingly be expected to have some potency.102 Hence, in the context of an ex parte application to relocate, the High Court unsurprisingly ruled that it would be an error for the Family Court to rely uncritically on hearsay evidence.103 In a nutshell, if the fundamentals of natural justice are to be totally abrogated, the truly exceptional circumstances that would serve to justify such a course of action must be thoroughly substantiated.

Ex parte orders will thus be only very rarely seen. Inevitably, the pivotal question in the vast majority of Care of Children Act proceedings is not going to be whether or not natural justice applies but rather what the principles of fair process specifically require in the particular circumstances of a particular case. This brings into play various aspects of both the audi alteram partem principle, such as the need for cross- examination and disclosure of relevant material, and the scope and application of the rule against apparent bias.

Cross-examination

As with all elements of the natural justice principles, the ability of a party to cross-examine is entirely dependent upon the particular circumstances of the case. With cross-examination of witnesses called by the Court being specifically contemplated by the Care of Children Act 2004,104 and the Family Court Rules 2002 similarly contemplating the possibility of cross-examination of deponents of affidavits,105 a suggestion once floated by Principal Family Court Judge Boshier for the blanket removal of all cross-examination by the parties106 is unlikely to prove compatible with present understandings of natural justice.

Hence, while in quite different contexts from Care of Children

100 Ibid at 229. See also in relation to the Children Young Persons and Their Families Act 1989 the recent judgment of the Court of Appeal in E v Chief Executive of the Ministry of Social Development [2007] NZCA 453: [2008] NZFLR 85.

101 EP v Family Court [2008] NZHC 1082; [2008] NZFLR 1133 (HC) at [84], following R v R [2003] NZFLR 200 (HC).

102 As argued by BD Inglis New Zealand Family Law in the 21st Century

(Brookers, 2007) at 127.

103 K v C [2001] NZHC 1302; [2002] NZFLR 200 (HC) at [67]- [68].

104 Care of Children Act 2004, ss 129(4) and s 130(2).

105 Family Court Rules 2002, r 169.

106 Boshier “What’s next after case management?”, above n 75, at 152.


Act proceedings, the Court of Appeal once acknowledged there is a fundamental difference between an inquisitorial inquiry and a lis inter partes,107 (and in a case concerning the requisite procedure for a road inquiry Lord Diplock had pointed out that in civil law jurisdictions cross-examination, in the common law sense, simply did not exist),108 the High Court has ruled that a Commission of Inquiry could not adopt a blanket rule precluding cross-examination.109 And, in the context of care and protection proceedings, the Court of Appeal recently allowed an application for review of a Family Court judge to proceed on the ground, inter alia, that cross-examination had arguably not been permitted.110

In one paternity case the High Court held it would be appropriate for a Family Court judge to place the child under the guardianship of the Court for the purposes of DNA testing on the basis of affidavit evidence without cross-examination, but Heath J indicated the position could have been different if there had been important factual conflicts to resolve.111

This insight may provide the needed key to proceedings conducted under the Care of Children Act. If a judicial determination on the contested facts is pivotal to the child welfare inquiry, then cross-examination might well be contemplated as being in the child’s best interests. If such a factual determination is not required, then alternative processes might be deemed fair and appropriate. In like manner, case-law outside the specific family law context has confirmed that natural justice can be met without cross-examination if there should be an equally effective method of answering the case against an affected party, and if there is a fair opportunity to correct or controvert a prejudicial statement.112

Applying the paramountcy test, cross-examination of an independent expert is often likely to be considered as helpful in promoting the child’s best interests, and there are certainly High Court dicta suggesting that oral evidence of an expert or witness that has been subjected to cross- examination could well be given more weight.113 In the leading family

107 Re the Royal Commission to Inquire into and Report upon State Services in New

Zealand [1962] NZLR 96 (CA) at 116.

108 Bushell v Secretary of State for the Environment [1980] UKHL 1; [1981] AC 75 at 97.

109 Badger v Whangarei Refinery Expansion Commission of Inquiry [1985] 2 NZLR

688 (HC).

110 L v Chief Executive of the Ministry of Social Development, above n 20.

111 Fletcher v Blackburn [Guardianship] [2008] NZHC 2683; [2009] NZFLR 354 at 364-365. Consider

also the comments of Bisson J in Hughes v Martin (1983) 2 NZFLR 20 (HC)

at 23, hinting at the possible need for cross-examination to determine

credibility in a paternity hearing.

112 See Badger v Whangarei Refinery Expansion Commission of Inquiry above n

109, at 697.

113 See for example the finding of Ongley J in Young v Whitton (1988) 5 NZFLR

244 at 246, cited with approval by Neazor J in Bowers v Bowers [2004]

NZFLR 241 (HC) at [16]. Cross-examination was viewed by Wigmore, the

renowned evidence scholar, as undoubtedly the greatest ‘legal engine’

invented for arriving at the truth: see the discussion of Skansky “Anti-

inquisitorialism” [2009] HarvLawRw 28; (2009) 122 Harv L Rev 1634 at 1644-1645.


law case on psychologists’ expert evidence, K v K,114 the High Court held that the manner in which cross-examination was conducted was a matter for the individual judge to control, but that Family Court judges would doubtless be aware the most effective cross-examination was often conducted in “a polite and moderate way, challenging the opinions expressed rather than the person expressing them”.115 Similarly, the subtle effectiveness of a conversational style of cross-examination of the expert has been highlighted by Inglis.116 Such a style also fits best with the ethos of a welfare inquiry.

Child Interviewing

Significant natural justice concerns have always existed over the private judicial interviewing of children, and the author has examined elsewhere the specific question of the extent to which the principles of natural justice may require recording and disclosure of such an interview.117 Consistent with the arguments advanced in this article, it was observed to be far from certain that the appellate courts would invariably insist upon what would normally be regarded as the fair and necessary procedures of recording and disclosure.118 Since that time, the Principal Family Court Judge Boshier has issued Guidelines for Discussions with Children.119

It is provided therein that the Judge must make it clear to the child that a record “may” be taken of the meeting and subsequently conveyed to the parties.120 It is, however, also expressly acknowledged that there will be occasions when the welfare and best interests of the child may outweigh the requirements of natural justice, so that the content of any meeting between the child and the Judge (or any part thereof) must be kept confidential.121

Rodney Hansen J has recently added his support to those who consider the interests of natural justice generally “weigh heavily” towards disclosure,122 holding that the fact the interview was conducted privately was not a sufficient reason to shield it from later scrutiny. Additionally, in a recently published article, Principal Family Court Judge Boshier and Damien Steel-Baker have summarised the New Zealand position as one where: “[j]udicial interviews should be made available to the parties in some way, either a transcript or recording, and the parties given the chance to comment in order to uphold their right to procedural

114 [2005] NZFLR 28 (HC).

115 Ibid, at [84].

116 New Zealand Family Law in the 21st Century, above n 102, at 121.

117 Caldwell “Judicial interviews with children: some legal background”

(2007) 5 NZFLJ 215 at 218-220.

118 Ibid, at 220.

119 They are found at <www.justice.govt.nz/courts/family-court/practice-

and-procedure/guidelines>.

120 Ibid, at [10].

121 Ibid, at [11].

122 AD v KT [Parenting order] [2008] NZFLR 761 (HC) at [61].


fairness”.123 Recording of the interview in some form, and subsequent disclosure, can therefore be regarded as both normal and expected. Nevertheless, as in other contexts, the combined effects of the overriding paramountcy principle and the protean flexibility of the principles of natural justice mean no blanket rules can be prescribed.124

Bias

As recently elucidated by the New Zealand Court of Appeal, an independent and impartial judiciary has long been the hallmark of our western legal system;125 and, similarly, the English Court of Appeal has pronounced that judicial impartiality is the fundamental principle of justice at common law.126 Nevertheless, as with the audi alteram partem principle, the particular context of the decision will always be of “supreme importance” in determining the application of the nemo iudex in sua causa principle,127 and the behaviour of a judge entrusted with an inquiry into the best welfare options for a child can be anticipated to be of a much more pro-active and interventionist nature than would ever be appropriate for a judge adjudicating a dispute over, say, a commercial contract.

On the other hand, judicial impartiality and professional disinterest in the conduct and outcome of proceedings does remain essential. If a Family Court judge were to act in a way which would reasonably lead a “fair-minded, impartial, and properly informed” lay observer128 to conclude the judge would not make a decision on the care of the child with a fair and unprejudiced mind, then the rule against bias will clearly have been infringed. But, equally, as the Supreme Court has recently held, the “properly informed” observer must be presupposed to have a knowledge and understanding of the judicial process and the nature of judging.129 In this particular context, therefore, the relevant lay person

123 Boshier and Steel-Baker “Invisible Parties: Listening to Children” (2007)

45 Fam Ct Rev 548 at 557.

124 See the discussion of Baragwanath J in Albert v Beatrice HC Auckland

CIV-2006-404-3930, 19 December 2006 at [31]-[41]. See also the views of

Judge Brown in PMH v BKH [2009] NZFLR 197 (FC) at 205 and of Judge

Murfitt in S v S [2008] NZFC 177; [2009] NZFLR 108 (FC) at 121.

125 As observed by the Court of Appeal in Muir v Commissioner of Inland

Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [32]. Reference was also

made, inter alia, to Article 14.1 of the International Covenant on Civil

and Political Rights 1966.

126 Morrison v AWG Group Ltd [2006] EWCA Civ 6 at [6].

127 See the dictum of Lord Steyn in Man O’War Station Ltd v Auckland City

Council (Judgment No 1) [2002] UKPC 28 [2002] 3 NZLR 577 at [11].

128 The test enunciated by Tipping J in Saxmere Company Ltd v Wool Board

Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [37].

The judgment was subsequently recalled in the light of new facts that

became available ([2009] NZSC 122[2009] NZSC 122; , [2010] 1 NZLR 76), but the statements

of relevant legal principle in Saxmere (no 1) still provide authoritative

guidance.

129 Ibid. See, in particular, the comments of McGrath J at [97] and of Tipping


would be presupposed to be aware not only of the traditions and integrity of the judiciary generally, and of the seriousness of the taking of the Oath of Allegiance and Judicial Oath under s 22 of the Oaths and Declarations Act 1957, but also of the inquisitorial nature of legal proceedings concerning the care of children. It would thus be seen as entirely proper for those entrusted with inquisitorial functions to take the initiative more freely than Judges traditionally do,130 and to confront witnesses with the possibilities and probe “vigorously” in order to get at the truth.131 A Family Court judge will certainly not be held to have infringed the nemo iudex principle simply because his or her behaviour is rather different in nature from that normally associated with passive adjudication.

Perhaps the danger most commonly and influentially associated with the inquisitorial process has been that of prematurity in judgment,132 and while arguments based on appearance of such bias have been seen to fail against Family Court judges in both New Zealand and Australia,133 there is at least one early New Zealand case, concerning paternity proceedings, where a Family Court judge was held to have appeared to have predetermined the issue before all the evidence was heard.134 In Australia, the majority of the High Court of Australia has also held that a Family Court judge who had formed a preconceived opinions as to the credibility of both parties in dissolution and maintenance proceedings had infringed the rule against bias,135 even though the judge in that case had pronounced the proceedings to be in the nature of an “inquisition followed by an arbitration”.136 And while an inquiry into the child’s welfare under the Care of Children Act 2004 is clearly quite different in nature from adjudication in either paternity or maintenance proceedings, the inquisitorial process will never offer the judge procedural carte blanche. The appearance of real unfairness, yet alone actual bias, on the part of the Judge will most definitely remain reviewable, but the inquisitorial process of itself does not create that appearance.




J at [38]-[39].

130 See the dictum of the Court of Appeal in relation to commissions of inquiry

in Re Royal Commission on Thomas case [1982] 1 NZLR 252 (CA) at 277.

131 Ibid, at 279.

132 See Langbein “The German Advantage in Civil Procedure” (1985) 52 Uni

of Chicago L Rev 823 at 843.

133 See for example in New Zealand Creser v Creser HC Wellington CIV-

2002-485-208, 22 June 2004 (domestic violence proceedings) and V v B

(application to disqualify Judge) [2002] NZFLR 499 (FC) (custody and access);

and in Australia see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (property

division).

134 Hughes v Martin above n 111, at 23.

135 R v Watson; ex p Armstrong [1976] HCA 39; (1976) 136 CLR 248.

136 Ibid, at 255.


Evidence

While natural justice is largely understood to deal with matters of procedure rather than of substance and evidence, it has been said in one New Zealand commentary on Family Law that evidence preparation and presentation in the Family Court presents “its own particular challenges” for the principles and jurisprudence of natural justice.137 And, despite the orthodox and long embedded understandings of the proper ambit of the twin principles, it is not uncommon to find judges referring to the principles of natural justice extending out to the admission or exclusion of evidence.138 There is in fact some oblique high judicial support for this from Lord Diplock in the 1980’s. Delivering the Privy Council opinion in Re Erebus Royal Commission; Air New Zealand Ltd v Mahon,139 his Lordship signified, somewhat unexpectedly, that the rules of natural justice require the decision maker to make his or her decision “upon evidence that has some probative value”.140

Despite the various judicial dicta, it does remain generally true that questions of the sufficiency of evidence are better conceived as being parallel rather than coincident to questions of natural justice, and a valuable analysis on the specific topic of the rules of evidence in the Family Court has recently been published elsewhere.141 What perhaps can be most usefully highlighted in this discussion on natural justice, is that the statutory modifications of the traditional rules on the admissibility of evidence provide a very important indicator of the inquisitorial flavour of family proceedings in general and the underlying emphasis on the needs of the child rather than on fact-finding. Thus, as Lord Nicholls once pronounced, the paramountcy principle means the Court is not confined to the issues or evidence the parties have chosen to bring forward.142

Given the various express statutory provisions on admissibility, the most interesting and difficult question concerning evidence does not in fact concern the discretion of the Court to admit otherwise inadmissible evidence but rather the source of the authority for the Court to exclude what would otherwise be admissible evidence. This does possibly raise the question as to whether procedural fairness could potentially require the Judge hearing all the evidence that a party wishes to place before the Court. The Family Court of Australia answered that question in the

137 Family Procedure: Evidence in the Family Court (online loose-leaf, ed

Brookers) at EF1.2.

138 Consider dicta dealing with applications under the Children, Young

Persons and Their Families Act 1989 in cases such as BSH v Ministry of

Social Development HC Wellington CIV-2009-485-403, 13 August 2009

at [29], [43]; LGR v Child Youth and Family Service FC Upper Hutt CYFS

078/004/01, December 2003 at [110]; and In the Matter of an Application

about the L children FC Wanganui, CYPF 1-95, 7 April 1998 at 17.

139 [1983] NZFLR 662.

140 Ibid, at 671.

141 Cull “Rules of Evidence in the Family Court” Family Law (NZLS, New

Zealand Family Law Section, September 2009) at 155-169.

142 Re L (A Minor) (Police Investigation: Privilege) [1997] AC 16 at 31.


negative in relation to the LAT,143 and it can be comfortably predicted the New Zealand Family Court is likely to rule in the same manner in relation to the EIP model. Perhaps the most satisfactory answer to the question of legitimacy for this judicial approach lies in Illingworth’s solution: a reliance on the principle of s 8 the Evidence Act 2006. That section requires evidence in both criminal and civil proceedings to be excluded if the probative value is outweighed by the risk that the evidence would have an unfairly prejudicial effect on the proceeding or would needlessly prolong the proceeding. With some confidence, Illingworth asserts the principle underlying s 8 could also rationally be employed by Family Court judges in any cases concerning children.144

Conclusion

As Lord Denning once declared, justice must be “rooted in confidence”,145 and it is vital that any early intervention processes and hearings in family law are readily accepted by the public as being based on the fundamental principles of procedural fairness. Given the adversarial system has for centuries been assumed to provide the best protection of individual rights in disputes over legal interests,146 and given that the adversarial combat has been represented in so many artistic portrayals of Court-room disputes, it could reasonably be speculated that members of the public might well harbour some concerns over departures from the adversarial system. Yet many elements of the inquisitorial system have now been in place in family proceedings for several decades, with notably few complaints being directed against these specifically. Perhaps it has been well understood that an inquiry into a child’s care is of a radically different nature from Court proceedings concerning traditional legal rights and interests. Perhaps, members of the public comprising diverse ethnicities and both genders are not as wedded as might be presupposed to an adversary system generally – a system which, as Lord Browne-Wilkinson once extra-judicially intimated, does have primary appeal to our “macho” instincts.147 Perhaps, indeed, the adoption of a more inquisitorial process corresponds more closely with community

143 Naczek v Dowler [2008] FamCA 89 at [16].

144 Illingworth “Justice for Children” Family Law – Flying High paper

presented at New Zealand Law Society, Family Law Section, Conference,

2007) 167, 172-173. The author also refers to s 25 of the Evidence Act 2006,

in relation to the admissibility of expert evidence.

145 Metropolitan Properties Co (FGC) Ltd v Lannon [1968] EWCA Civ 5; [1969] 1 QB 577 at 599.

146 An inquisitorial tradition, however, is discoverable in the historical

procedures of Equity and the Court of Chancery: see Kessler “Our

Inquisitorial Tradition: Equity Procedure, Due Process, and the Search

for an Alternative to the Adversarial” (2005) Cornell L Rev 1181.

147 Lord Browne-Wilkinson “The UK Access to Justice Report: A Sheep in

Woolf’s Clothing” (1999) 28 U W Austl L Rev 181 at 186. See also Oh’s

interesting study and analysis “Questioning the Cultural and Gender-

Based Assumptions of the Adversary System” (1992) 7 Berkley Women’s

LJ 125.


expectations of fairness.148

Certainly, the recent accelerated move to inquisitorialism in the early intervention models of the PHP or EIP does not provide any great sense of a socio-legal revolution. As argued above, the significant and frequent High Court endorsements for the inquisitorial process in the traditional Family Court hearing, the broader contextual background of increased case management and Alternative Dispute Resolution in family law and civil litigation generally, and the growing view that non- adversarial collaborative law is likely to be the wave of the future for family lawyers,149 all mean it is relatively natural for any steely rigour in the principles of procedural fairness to be significantly softened in an early intervention context.

It will, of course, require highly exceptional circumstances for it ever to be considered proper for the principles of natural justice to be abrogated to the point of extinction. The cases on ex parte orders make that abundantly clear. As a fundamental nostrum, parties in Care of Children Act proceedings are as entitled as those in any other legal proceedings to “fair play in action”,150 and Chief Justice Elias was certainly correct in her extra-judicial observation that “...the interests of the child do not require displacement of the parents’ right to the observance of natural justice”.151 The only real point to be reiterated is that the requirements of natural justice in any particular instance will be tailored to meet the particular inquiry in question. That is the very essence of natural justice.

Finally, the role of participating lawyers under the newly introduced EIP model is bound to be of a somewhat different character than in the past: for, although traditional hearings and processes are envisaged for the most difficult cases, the model patently favours “court assisted negotiations” rather than adjudication.152 Nevertheless, an important task of a family lawyer acting for a party during the EIP will be one of ensuring “fair play in action” for his or her client. In fulfilling this task, though, it should always be appreciated that the premise of extant formulaic rules is the converse of the malleable concept of “natural justice”, and that the adoption of a different procedural approach from that normally

148 A point raised by the Australian Law Reform Commission Review of the Adversarial system of litigation: Rethinking family Law Proceedings (Issues Paper 22, 1997) at 13.4.

149 See Kruse “ADR, Technology, and New Court Rules – Family Law Trends for the Twenty-First Century” (2008) 21 J Am Acad Matrim Law 207, 211. For full analyses of collaborative law, see Daicoff, “Collaborative Law: A New Tool for the Lawyer ’s Toolkit” (2009) 20 U Fla JL and Pub Pol’y

113 and Voegele, Wray and Ousky “Collaborative Law: A Useful Tool for the Family Law Practitioner to Promote Better Outcomes” (2007) 33 Wm Mitchell L Rev 971.

150 A description of natural justice proffered by Lord Morris in Furnell v

Whangarei High School Board [1973] 2 NZLR 705 (PC) at 718.

151 Above n 73, 111.

152 See the address of Judge von Dadelszen, “Mediation and other forms of

court assisted negotiations in New Zealand”, above n 53, at 15, 17.


prevailing in the courts of law will not of itself result in a breach of the common law principles. In the context of a child welfare inquiry under the Care of Children Act 2004, the more inquisitorial aspects of the EIP are not of themselves intrinsically unfair.


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