Family Court

INTRODUCTION

The Family Court encourages people to sort out their disagreements themselves. The first step is usually counselling. But if counselling doesn't solve the problems, the Family Court can be asked to make an order sorting the matter out. In that case, the first thing the Court is likely to do is refer the parties to a mediation conference.

WHAT IS A MEDIATION CONFERENCE?

A mediation conference is a chance for both sides to discuss their differences with a Family Court Judge, and to try to reach agreement. The Judge runs the conference, and makes sure each person gets a chance to say what they think.

WHAT KINDS OF CASES GO TO A MEDIATION CONFERENCE?

Mediation conferences can be held whenever someone has asked the Family Court for one of the following -

• a parenting order - this says who is responsible for the day-to-day care of a child, and when and how someone else important in the child's life can have contact with them. It does what custody and access orders used to do.
• a separation order - this makes arrangements for couples to live apart.
• a maintenance order - this requires a person to pay some or all of their ex-spouse or partner's living costs.
• a declaration that a child needs care or protection - this is where the Family Court decides that a child needs care or protection because they have, for example, been harmed or neglected.

In these cases the Court must arrange a mediation conference if a Judge says it should do so or if one of the parties asks it to do so (including the child, if someone has applied for a declaration that they need care or protection).

WHERE IS A MEDIATION CONFERENCE HELD?

Mediation conferences are held at the Family Court, but they are more relaxed and less formal than a Court hearing. Some larger Courts have special rooms for mediation conferences, with a large table for everyone to sit around.

If people choose to have mediation by a professional mediator rather than a Judge, the mediation will be held in private rooms outside the Court.

WHO CAN COME TO A MEDIATION CONFERENCE?

The people having the disagreement need to be there. They can have their lawyers there too if they want, to help and advise them.

If the disagreement involves a child, and the Court has appointed a lawyer for the child, that lawyer can also be there.

Lawyers are encouraged to take a back seat at mediation conferences. The people having the disagreement should do most of the talking.

Support people and wider family can also come to the mediation conference if the Judge allows it and no-one else objects. If they do attend the mediation conference, and it involves a dispute under the Care of Children Act, they also have the right to be at any later Family Court hearing.

WHAT HAPPENS AT THE MEDIATION CONFERENCE?

Each Judge has their own particular way of running a mediation conference. But usually the first thing the Judge will do is try to find out exactly what the disagreement is about, and see if there are any issues that can be agreed on at the start. Next, the Judge will encourage both sides to discuss the disputed issues and, if possible, reach agreement on some or all of them. The Judge will help make sure all the possible options are considered, and, if the case involves children, help focus the discussion on their needs. Before any agreements are written down by the Judge, the parties will be given time to talk with their lawyers if they want to.

WHAT HAPPENS TO ANY AGREEMENT REACHED AT A MEDIATION CONFERENCE?

Any agreement reached can simply be written down at the end of the mediation conference, or can be used as the basis for a written agreement later on. The agreement might deal with arrangements for separation or for the care of a child, for example.

Alternatively, the Judge can be asked to turn the agreement into a Court order. This is called a consent order, because the Judge can make the order only if the parties agree it should be made. If later on either person breaches the consent order, the other person can get the Court to enforce the order in the same way as any other Court order.

WHAT HAPPENS IF ONE PERSON REFUSES TO COME TO MEDIATION?

The Court can order them to come on another day, by sending them a summons.

WHAT IF NO AGREEMENT IS REACHED?

If it is clear that no agreement is going to be reached, the Judge can stop the mediation conference so that the parties have more time to think about their options, find out more information, or try to sort out a temporary arrangement. The Judge will usually make directions about what the next steps in the case will be. Counselling can also be arranged to help work towards a solution.

If the disagreement involves a child, the Judge may appoint a lawyer to represent the child, if that hasn't already been done. The Judge may also call for a specialist report on the child - such as a psychologist's report.

CAN THERE BE MORE THAN ONE MEDIATION CONFERENCE?

Yes, there is no limit on the number of mediation conferences people can ask for. But if it seems unlikely that mediation will lead to an agreement, the Judge can order that the dispute go to a Family Court hearing, and can set out what has to be done to help that happen.

CAN THINGS SAID AT A MEDIATION CONFERENCE BE USED IN COURT?

No. Nothing said at a mediation conference can be brought up at a later Court hearing.

WILL THE SAME JUDGE RUN ANY LATER COURT HEARING?

They can do. But in some cases Judges who run mediation conferences may decide that they shouldn't also be the Judge at the later Court hearing.

NEED MORE INFORMATION OR ADVICE?

For more information or advice, 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).

www.justice.govt.nz/family
Courts 028
Nov 06