Family Court

INTRODUCTION

The Care of Children Act 2004 recognises that it's usually much better for everyone involved if those responsible for caring for children make their own arrangements for their care. This is particularly true when parents separate. When this doesn't happen, and there is a disagreement about the children's care, the Family Court can be asked to make a parenting order.

WHAT IS A PARENTING ORDER?

A parenting order is an order made by the Family Court that says who is responsible for day-to-day care of a child, and when and how someone else important in the child's life can have contact with them. Parenting orders can be enforced just like any other order of the Court.

Usually they involve disputes between a child's parents. But other people in a child's life can apply for a parenting order too - a guardian, or a partner of a parent of the child, for example, and in certain cases others as well such as a grandparent.

A parenting order can also be made when parents or guardians agree on the arrangements for the care of children. In some cases the people involved may have prepared a written parenting agreement and the Court can be asked to make a parenting order based on the agreement. For more information, see the pamphlet Parenting Agreements.

Day-to-day care used to be called custody, and contact used to be called access. Parenting order is the new name for what used to be called custody orders and access orders.

COURT HEARINGS ARE A LAST RESORT

If arrangements for looking after children are not working, it's usually much better if those involved are able to sort out the problems themselves, rather than have a Judge tell them what to do.

The Family Court can arrange free counselling to help with this, even if no-one has asked it to make a parenting order. If this does not solve the problems then the Court can be asked to make a parenting order.

APPLYING FOR A PARENTING ORDER

WHO CAN APPLY FOR A PARENTING ORDER?

The following people can apply -

• a parent or guardian of the child
• a partner of one of the parents (whether they are married, in a civil union or in a de facto relationship) if they've been sharing day-to-day care of the child
• any member of the child's family, whānau or other family group who gets the Court's permission to apply
• anyone else who gets the Court's permission to apply.

OTHER PEOPLE CAN APPLY IF A PARENT IS DEAD OR HAS NO CONTACT WITH THE CHILD

Other people can apply for a parenting order if one of the parents -

• has died
• is stopped by the Family Court from having contact with the child, or
• is making no attempt to have contact with the child.

Those other people who have the right to apply in these cases are -

• the mother or father of the parent who is dead or out of contact
• a brother or sister of that parent
• a brother or sister of the child.

HOW DO YOU APPLY FOR A PARENTING ORDER?

Certain forms need to be completed and filed to make an application for a parenting order. Most people get a lawyer to help them apply to the Family Court for a parenting order. The lawyer will know how the Family Court process works and can give advice about what is the best thing to do in a particular situation.

WHAT HAPPENS AFTER YOU HAVE APPLIED FOR A PARENTING ORDER?

Normally the Family Court will arrange for the parties to go to free counselling to help them sort out the problems themselves. This is best for everyone. If counselling doesn't work, the next step is for them to be referred to a mediation conference, where a Judge will try to help them reach agreement.

The Court won't refer the parties to counselling and mediation if it's unlikely to help - if the parties have already tried counselling if one of them has been violent, for example.

If the dispute is still not resolved after a mediation conference, usually a Judge will appoint a lawyer for the child or children. The Judge will indicate what the next step in the process will be, which will end with a hearing in the Court, if the parties don't agree in the meantime.

For more information on counselling and mediation, see the pamphlets Counselling and The Mediation Conference.

DOMESTIC VIOLENCE; SEPARATION AND DIVORCE

In certain cases when the Family Court is asked to make -

• a protection order under the Domestic Violence Act
• a separation order, or
• an order dissolving a marriage or civil union,

it may also make an order about the day-to-day care of children and contact with them.

HOW THE FAMILY COURT DECIDES

THE WELFARE AND BEST INTERESTS OF THE CHILD

When the Court is deciding whether to make a parenting order and what should be in it, the first and most important issue it must consider is always the welfare and best interests of the child.

What's best for the adults, and things that they have or have not done, will be taken into account only if they are relevant to the welfare and best interests of the child.

WILL THE COURT ASSUME A CHILD SHOULD LIVE WITH THEIR MOTHER?

No. The law does not automatically assume it's always best for a child to live with their mother rather than their father, or the other way around. The Court will look at each case and decide what's best for that particular child.

WHAT KINDS OF ISSUES WILL BE RELEVANT?

The Care of Children Act sets out the key factors the Court must consider when it is deciding what is best for a child -

• the child's parents and guardians should take the main responsibility for looking after them and making arrangements for their care, development and upbringing
• there should be continuity in the arrangements for the child's care, development and upbringing
• links between the child and their whānau or other wider family group should be preserved and strengthened
• there should be co-operation between parents, guardians and others who are involved in looking after the child
• the child must be kept safe and protected from all forms of violence, and
• the child's identity, including their culture, language and religion, should be preserved and strengthened.

SPECIALIST REPORTS

To help it make a decision, the Court can ask for a written report about the child and their family from a specialist - a social worker, a psychologist, or a cultural report writer, for example.

For more information, see the pamphlet Specialist Reports in the Family Court.

CULTURAL SPEAKERS

Before a date is set for a hearing of the dispute, a party can ask the Court to listen to someone tell it about the child's cultural background and how this may be relevant to the decisions the Court is being asked to make.

GIVING THE CHILDREN THEIR SAY

CHILDREN HAVE RIGHTS!

The Care of Children Act recognises that children have the right to have their say about things that affect them. If a dispute about a child goes to the Family Court, the Court will make sure the child has a reasonable chance to say what they think - for example, about who they should live with.

The Court must take the child's views into account.

THE ROLE OF THE LAWYER FOR THE CHILD

When a dispute about a child has not been resolved through counselling or mediation, and is likely to go to a Court hearing, the Court will usually appoint a lawyer for the child.

The job of the lawyer for the child is to -

• meet with the child to find out what they think about the dispute and possible ways to solve it, and
• represent the child and the child's welfare and best interests as the case goes through the court system.

As the name says, the lawyer for the child is the child's lawyer, and no-one else's. Like any other lawyer who represents someone in court, the lawyer for the child can bring witnesses into the Court to give evidence, cross-examine witnesses brought to the Court by other people, and address the Judge (make submissions) about the evidence, the law that applies to the case, and anything else they feel ought to be brought to the Judge's attention.

WHAT THE PARENTING ORDER WILL COVER

A parenting order made by the Family Court can deal with -

• day-to-day care of a child - this means where the child lives on a daily basis, and who is responsible for everyday things, like making sure the child is safe, that they get to school, and that they're warm and properly fed, for example
• contact with the child - this is how and when a child gets to spend time with a parent or other person who does not have day-to-day care of them.

Day-to-day care used to be called custody, and contact used to be called access. A parenting order is the new name for what used to be called custody orders and access orders.

DAY-TO-DAY CARE

Many different options are possible for the day-to-day care of a child. These can vary from parents or caregivers sharing day-to-day care equally, to one of them having day-to-day care most of the time, to one of them having day-to-day care all of the time. The Court will decide this based on the child's welfare and best interests, along with other relevant factors.

A parenting order can also specify what the arrangements will be for day-to-day care around Christmas and school holidays, and on special days like birthdays.

CONTACT

If the Court orders that one parent will not have day-to-day care of the child at all, the order will usually provide for the child to have contact with that parent. The Act recognises that a child should continue to have an ongoing relationship with both parents unless there's a reason why it's not in the child's best interests.

The order can specify -

• how the contact will happen - for example, whether it will be face-to-face, or whether it will be in some indirect way, such as phone calls or emails
• how often and how long the contact will be for
• any particular arrangements that need to be included, such as where the child will be dropped off or picked up.

The order can also include specific contact arrangements for holidays, birthdays and other special days.

SPECIFIC CONDITIONS

The Court can also include specific conditions as part of the parenting order - for example, a condition that neither of the parties can take the child out of the country without written permission from the other person or from the Court.

CASES INVOLVING VIOLENCE - SUPERVISED CONTACT

The Court can order that someone can only have supervised contact with a child if the Judge is concerned for the child’s safety. For example, court.

If the Judge is concerned for the child’s safety, the Court may require that someone can only have supervised contact with the child. For example, if there have been allegations of violence or a protection order has been made.

The Court can review any contact order it makes, especially if a temporary protection order has been made. This means both parties may have to go to Court.

For more information, see the pamphlet Supervised Contact.

PROTECTION FOR THE OTHER PARENT

If the Court allows someone who has been violent to have contact with a child (whether supervised or not), the Court must also think about how to protect the other parent or caregiver.

For example, the parenting order might say that someone else must always be present when the other parent or caregiver is collecting the child from the person who has been violent.

WHAT IF I CAN'T UNDERSTAND THE LEGAL JARGON IN THE PARENTING ORDER?

A parenting order will always include a clear, simple explanation of what it means. That way, everyone is clear on their roles and responsibilities.

The order will also explain -

• any processes the Court has decided on for checking on and reviewing how the order is working in practice
• how you can get the order changed (varied) or cancelled (discharged)
• what happens if someone doesn't obey the order.

The lawyer or other person representing each party to the case must also explain the order to them.

HELPING THE CHILDREN UNDERSTAND THE ORDER

It is part of the job of the lawyer for the child to explain to the child what the parenting order means. This has to be done in a way that the child will understand.

HOW LONG DOES A PARENTING ORDER LAST?

This depends on the type of order that is made.

An interim order lasts until a particular date or until a particular thing happens - the Court making a final order, for example - or until the Court says the order stops.

If an interim order gives each parent either day-to-day care of a child or contact with the child, the order automatically ends after one year, unless it has already ended before then. However, either parent can ask the Court to reduce or extend the interim order, provided they ask before the year is up. The parents must take all reasonable steps to obtain a final order as soon as they can.

Final orders

A final order lasts until a child turns 16, unless it's a special case and the Court has decided that the order should continue after that.

INTERIM ORDERS - WHEN ONE PARENT IS DENIED ALL CONTACT WITH A CHILD

If the Court makes an interim order that denies one parent all contact with a child, then as soon as it can, the Court must set a date on which it will decide whether the part of the interim order about contact should be made into a final order.

If the parent denied contact by the interim order was told by the Court that the other parent had asked for the order, and therefore had a chance to be heard by the Court before it made the order, the date the Court sets must be within three months after the date on which it made the interim order.

If the parent denied contact by the interim order was not told that the other parent had asked for it, then when they do find out about being denied contact they can tell the Court they want to have a say when the Court decides whether to make that part of the interim order into a final one. If they do tell the Court they want a say, the date the Court sets must be within six weeks of the date on which the Court is told.

CHILDREN 16 AND OLDER

A final order lasts until a child turns 16, unless it's a special case and the Court has decided that the order should continue after that.

Orders dealing with day-to-day care aren't usually made for children who have already turned 16.

CAN A PARENTING ORDER BE CHALLENGED?

Yes. Anyone who was a party to the case, or the child, can appeal a parenting order to the High Court.

APPLYING TO CHANGE OR CANCEL A PARENTING ORDER

Anyone affected by a parenting order, including the child, has the right to ask the Court to change (vary) or cancel (discharge) it. The child would usually have a lawyer apply on their behalf..

MAKING PARENTING ORDERS WORK

THE BEST OPTION - THE PARENTS FIX THE PROBLEM

If a parent or other party to a parenting order is not complying with it, the first thing the Court will usually do is refer both parties to counselling to try to get them to work out the problem themselves.

If that does not work, and as a last resort, the Court can make various orders to deal with the situation. It can reduce the amount of time one of the parties has with the child, for example, or require them to pay money to the Court as a bond, which they could lose if they continue to disobey the order.

STARTING WITH COUNSELLING

Either of the parties to a parenting order can ask the Family Court to arrange counselling if they believe the other is not complying with the order.

If counselling is arranged and one person doesn't turn up, the Court can order them to do so.

WHAT CAN THE FAMILY COURT DO IF A PARTY BREACHES AN ORDER?

If the Court is satisfied that one of the parties is not complying with a parenting order, it can do any of the following things -

• admonish them - this is like the Court telling the person off
• change the order - the Court can change (vary) or cancel (discharge) the parenting order - for example, it could significantly reduce the amount of time when the person has day-to-day care of the child
• order a bond be paid - the Court can require the person to pay money to the Court as a bond, which they could lose if they continue to disobey the order
• order compensation be paid - if the other person had to spend money because of the breach (like paying for travel tickets), the Court can order the person who breached the order to compensate them by paying them an amount of money
• enforce care or contact - if one person is preventing the other from having day-to-day care or contact with the child as provided in the parenting order, the Court can order the Police or a social worker to pick up the child and deliver them to the other person.

For more information, see the pamphlet Breaches of Parenting Orders.

BREACHING A PARENTING ORDER IS A CRIMINAL OFFENCE

It's a criminal offence to intentionally breach a parenting order without a reasonable excuse - if you prevent the other person having the contact they're allowed under the order, for example.

If you are charged and convicted you could be jailed for up to three months, or fined up to $2,500.

NEED MORE INFORMATION OR ADVICE?

For more information or advice about parenting orders, look on the Family Court website (www.justice.govt.nz/family), or contact a family lawyer (www.familylaw.org.nz), a community law centre, or the nearest Family Court office.

LEGAL AID

Anyone who needs a lawyer but can't afford one may be able to get legal aid. This is where the Government pays some or all of the lawyer's bills (sometimes you may have to pay some or all of it back).

You can get information on legal aid by –

• contacting your local Legal Aid Services office, based at your local District Court (see the blue Government pages at the front of the phonebook)
• visiting the Legal Aid Services pages on the Ministry of Justice website at www.justice.govt.nz/services/getting-legal-aid, or
• seeing a lawyer and discussing legal aid with them.Legal aid is available for all Family Court cases, except dissolution of marriage (divorce).

Legal Aid is available for all Family Court cases, except dissolution of marriage (divorce).

www.justice.govt.nz/family
Courts 005
Nov 2011