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Pressures spell redeployment of judicial workforce

24 May 2018 - By Chief District Court Judge Jan-Marie Doogue

For several years now the District Court has been coping with the relentless workload and demand for court time by careful, flexible and innovative application of our stretched judicial workforce.

Across all divisions of the District Court, judges are constantly exploring ways to improve processes so people are not left waiting unacceptably long periods for hearings and to have matters settled.

New technologies have made some difference and District Court Judges have embraced many of these advances. In the criminal courts, we have worked collaboratively to ensure the introduction of time-saving technology such as audio-visual links, is rolled out with adequate protections to avoid any degradation of justice.

With the help of purpose-built scheduling and rostering tools, more intensive case management and the good will of court staff and the legal profession, the District Court has been making good progress in improving timeframes for jury trials in particular. Three years ago, a third of active jury trials were over a year old. In March this year, we had pegged that back to a quarter. As well, there is now less disparity in timeframes between regions for jury trials.

We have made these gains in a difficult environment of growth in Category 3 offences and the impacts of tighter bail laws, which have contributed to unprojected growth in defendants remanded in custody. As judges, we are acutely aware of the human rights of people deprived of their liberty while awaiting trial, and how this makes the need for timely outcomes all the more pressmg.

However, there are other areas of court business that are falling unacceptably behind. In the Family Court, disposal timeframes are routinely not meeting legislative or practice-note expectations.

Care of Children Act (COCA) applications account for the biggest number of applications in the Family Court. While overall the number of new applications is falling, the proportion of the most time-hungry of these - defended COCA applications - is on the rise.

At the end of March this year there were more than 8000 active defended COCA cases - 27 percent more than in early 2016.

The urgent call on judicial time from without-notices applications in the Family Court has also surged in recent years, at the expense of families in the normal track who are waiting longer for matters to be determined or to reach a judge.

Squeeze on Judicial Resources

Much of the delay has its genesis in the 2014 Family Court reforms which, through a focus on diverting cases to mediation and excluding lawyers, have had perverse outcomes in terms of timeliness. Applicants are increasingly resorting to the without-notice track to ensure their cases go directly to a judge and they can have a lawyer in court with them. Priority must be given to these urgent applications, but it has put an extra squeeze on judicial resources.

The struggle to reduce delays has become even tougher since a law change early last year ushered in new restrictions on judicial numbers. What is effectively a sinking lid on the judicial workforce is starting to bite.

On average, the District Court is losing judges at the rate of one a month. Our number will have fallen from 179 at a peak last year to 167 by the end of May­ and we are still well over the new statutory cap of 160.

The combination of shrinking judicial workforce, increased complexity and seriousness in criminal cases, and a swing towards  without-notice applications and defended applications in the Family Court is placing unsustainable pressure on workloads.

While this is hard on judges and court professionals, it is harder on families left in limbo. In the Family Court especially, the unrelenting pressure is now creating unacceptable delay.

Something has to give.

Redeployment of Judicial Resource

As Chief Judge, I am responsible for the orderly administration of justice. This invokes images of tidy queues that move compliantly at my direction.

If only intervention were so simple. In reality, application of resources has become more akin to a disheartening exercise in robbing Peter to pay Paul.

After much thought and analysis of current forecasts, and conscious of the most urgent pinch-points in the District Court, I have decided to redeploy judicial resource from the criminal jurisdiction to the Family Court.

From October, up to 100 judge-days a month will be diverted to the Family Court from the criminal jurisdiction. This is estimated to generate capacity for up to 120 more defended Family Court hearings a month, depending on how the resource is divided between long-cause and short-cause hearings and settlement conferences.

The downside is that as a result, increasing delays can be expected in our criminal and civil work streams.

This is regrettable when we were making a significant dent in jury trial timeframes. The fear is that those gains will unravel as a result. However, within the policy and funding framework I must work, this step has become unavoidable.

As the second biggest division of the District Court, the Family Court is under enormous strain. It deals with the most basic rights to care, shelter and protection for our most vulnerable New Zealanders, be they mentally unwell, elderly, domestic violence victims, abused and neglected children or those families being torn apart by intractable contact and custody disputes.

Many of those affected find themselves in the court system through no fault of their own; they have committed no crime. They are entitled to certainty in their lives, especially the children.

It is essential that the public retain confidence in the Family Court. I trust that with the support of family law practitioners and the understanding and patience of the criminal bar, the District Court will weather these adjustments.

Last updated on the 16th September 2019