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Care of Children

Appearing in the Family Court (Care of Children Act 2004)

Introduction

If you are involved in a dispute in the Family Court about arrangements for looking after children, and all attempts to resolve the dispute have failed, you will need to attend a formal hearing in front of a Family Court Judge.

Knowing who you can have with you at the hearing, who else will be there, and what will happen can help make it a little less intimidating. Information about these and other things is set out below.

Family Court hearings - a last resort

The Family Court encourages parents and other caregivers to make their own arrangements for looking after the children and to resolve any disputes themselves. If you have asked the Court to resolve the dispute, you will usually be sent to counselling and mediation first, to help you work out your own solution. A hearing before a Family Court Judge is seen as a last resort, when all other attempts to sort out the problem have failed.

Even after the hearing has started, the parties can decide to come to an agreement themselves at any time before the Judge makes a final decision on the case. If they do this and tell the Judge, the hearing can be stopped.

Asking a Judge to decide

Taking your dispute to the Family Court hearing is a serious step that you should not take lightly. It's different from mediation, where a Judge or professional mediator will have tried to help you and the other person sort out the problem yourselves. In a formal Court hearing, the Judge has all the decision-making power.

The Judge won't take sides between the adults. The law is very clear that the welfare and best interests of the children are the first and most important factor the Judge must have in mind when deciding the case.

Once the Judge has settled a dispute about children by making an order, the parties lose the power to agree on their own arrangements for the issues dealt with by the order. The Court order sets out what must happen, until the Court decides to change or cancel the order.

How many times will you need to go to Court?

You may need to appear in Court one or more times before the main Court hearing.

For example, there may be a hearing early on for the Judge to make an interim parenting order. This is a temporary order that decides who has day-to-day care of the children and how there will be contact with them until the main Court hearing.

Sometimes the Judge will need to decide questions to do with the Court process - for example, when the main hearing will be held. The parties and their lawyers may or may not need to be at the Court when the Judge decides these questions.

What if you are afraid for your safety while at the Court?

Court staff will make arrangements to make sure you will be safe while at the Court. This may include making sure you do not have to wait in the same waiting room as the other person.

You or your lawyer should ring or talk to the Family Court Coordinator, the Court Registry officer dealing with your case, or someone else in the Family Court before the hearing if you have any fears.

Do you bring the children?

The children do not attend the Family Court hearing. It is a good idea to find someone to care for the children while you are at Court, because the Court does not provide child-care.

Is there car parking?

The Court does not provide parking. You will need to make your own parking arrangements.

Who will be there

Is the Courtroom open to the public?

No. Unlike criminal Court cases, for example, not just anyone can be in the Courtroom.

Who can be in the Courtroom?

The following people can be in the Courtroom when the Family Court hearing is being held -

the Judge

the Registrar, who is an important official at the Court

a Judge's assistant or note-taker, unless the hearing is taped

the parents or other parties, and their lawyers

the lawyer for the child

any lawyer who's been appointed to assist the Court

a cultural speaker who's addressing the Court at the time

any witness who's giving evidence at the time

anyone who attended the counselling or mediation sessions held earlier as a support person for one of the parties - a partner or family member, for example

other support people for the parties, if they have the Judge's permission

news reporters

anyone else who has the Judge's permission.

At any time the Judge can send everyone out of the Courtroom except the parties and the lawyers.

Will the children be at the hearing?

No, the children won't attend the hearing.

Can you have a support person in the Courtroom with you?

If you had a support person with you at the counselling or mediation sessions held earlier, they can be in the Courtroom with you. The Court will send that person a written notice before the hearing, telling them where and when the Court hearing will be. The support person will have to tell the Court by a certain date if they want to be at the hearing with you.

You can also have anyone else the Judge allows. The Judge can't refuse permission for someone to be with you without a good reason.

Can the other party have a support person there too?

Yes. Just like you. If you both went to counselling or mediation, and both of you had support people there with you, then both of you are allowed to bring your support people into the Courtroom. And you can both have anyone else there the Judge allows.

What if you don't want one of the other party's support people to be there?

You will be told before the hearing if someone who was at counselling or mediation as support for the other person is also going to be at the hearing. You will have a chance to object to any of them being there. If you do, the Judge will consider your objections and then decide if they can stay.

You will also get a chance to object if the other side asks the Judge for permission for some other support person to attend the hearing.

Can a friend help you with your case if you don't have a lawyer?

If you don't have a lawyer, you can ask the Court to allow you to have someone at the hearing with you to help you with your case - a friend or relative, for example. This person is called a lay assistant (they are sometimes also called a "McKenzie Friend"). You and your lay assistant will first have to fill in special forms.

Remember too that if you can't afford a lawyer, you may qualify to get one through legal aid.

If you have got the Judge's permission for a support person, rather than a lay assistant, to be with you in Court, the support person can't help you with your case. They are there to give you emotional support only.

Can the media publish your names and details?

No. News reporters can be at the hearing, but they are not allowed to publish any names or any information that would be likely to identify any of the following people -

the children

the parents or other parties

others involved in the case, such as support people

witnesses

speakers on cultural issues.

If the media want to publish any names or identifying details, they have to get the Judge's permission.

Reports can be published in professional or technical journals, or circulated among people with a professional interest in the case, so long as the reports don't include the names of the parties or the children.

Some Family Court judgments are also published on this website, but the names are removed so that the people involved can't be identified. A judgment is a Judge's written decision in a particular case - it includes the Judge's reasons and sometimes a discussion of the law that applies to the case.

Will you need to see the other person?

Both parents or parties will usually be in the Courtroom at the same time.

However, separate waiting rooms can be arranged to use before the hearing. Talk to your lawyer if you're concerned about this.

What happens at the hearing

A Family Court hearing is very different from going to mediation. Like any other formal Court hearing, the Judge in the Family Court has full authority to decide what happens in the Courtroom and to make a final decision in the case. Once the Judge makes an order deciding the case, this order has the force of law and must be obeyed.

Some of the rules in the Family Court about things such as evidence and procedure are different from other Courts. Family Courts can take any information into account as evidence, and the procedure is less formal. However, everyone has to stand when the Judge enters or leaves the Courtroom.

Where do you sit?

Each of the parties sits next to their lawyer. Other people in the Courtroom sit further back, although a support person can sit next to the parent or other party they're supporting if the Judge allows it.

Do the parties get to speak, and when?

If you're one of the parties and have a lawyer, your lawyer will usually do most of the talking. But at one stage of the hearing you may need to give evidence and then answer questions from the other side's lawyer, the children's lawyer and the Judge.

If you need to tell your lawyer something during the hearing, you should pass them a note rather than whispering to them, or wait until you have a chance to speak with them.

If you don't have a lawyer, you will have to present your case yourself and do all the talking.

If you disagree with something that's said, you're not allowed to interrupt. Again, you should simply write a note to your lawyer or wait until you can talk to them. If you don't have a lawyer, you should write yourself a note so you remember to raise the matter with the Judge when you are given a chance to speak.

Do others get to speak?

If you're not one of the parties to the case, but are a support person, for example, you should not talk at all during the hearing.

What do you call the Judge?

You address the Judge as "Your Honour" or "Judge".

How does the hearing start?

The hearing usually starts by the lawyers introducing themselves and the person they're representing. They will also introduce any support person who has come to the hearing, and ask the Judge for permission for that person to be there.

The two sides then each put their case to the Judge.

Who puts their case first?

The person who has asked the Court to settle the dispute is called the applicant, and they present their case first. Then the other person, the respondent, has their turn.

How does each side usually present their case?

Usually the applicant's lawyer will say what their case is about and then ask the applicant to give their evidence.

In most cases the evidence is contained in the written statements that were given to the Court and to the other side before the case starts. These are called affidavits. The applicant's lawyer will ask the applicant to confirm what is written in their affidavits. They may also ask them to highlight or explain particular things or, for example, to give information about things that have happened since the affidavit was written.

Then the other side's lawyer and the lawyer for the child have the chance to ask the applicant questions - to clarify something they have said, or test whether something they've said is true or is the whole story, for example. This is called cross-examination.

After cross-examination the applicant's lawyer can ask them some more questions, but only if they are about things that have been discussed during cross-examination. This part of the case is called re-examination.

Then any witnesses the applicant has brought along will give their evidence and be cross-examined in the same way.

When the applicant's witnesses have finished giving their evidence, it's the turn of the respondent to present their case, with the respondent giving their evidence first.

After the applicant and the respondent have completed their cases, the lawyer for the child or the Judge will sometimes call witnesses - for example, a specialist the Court has asked to prepare a report on aspects of the dispute. If that happens, the parties' lawyers can cross-examine these witnesses.

What are submissions?

After all the evidence has been given, the Judge will ask the lawyers if they have anything to say about the law that applies to the things that are in dispute, and how the law might support their clients' cases. These are called submissions.

Does the Judge decide the case immediately?

Sometimes the Judge will make a decision at the end of the hearing. But it is not unusual for them to want to have time to think about the evidence and the submissions before deciding. If the Judge wants to do that, at the end of the hearing they will say that they are reserving their decision. If that happens, the Family Court will contact your lawyer when the Judge has made a decision. How long that will take depends on the Judge, but most decisions will be given within three months after the hearing.

The applicant or the respondent can appeal the Judge's decision to the High Court if they are not happy with it. The child can also appeal.

What if you decide to agree on things?

At any time until the Judge makes a final decision, you and the other person can agree to stop the Court process and come to an agreement without the Court being involved. Even if a date has been set for a Court hearing or the hearing has already started, you are still free to reach an agreement you both are happy with.

How long will the hearing take?

You will need to check with your lawyer or the Family Court, as it will depend on the type of hearing.

Need more information or advice?

For more information or advice, click on the links below to other pages or pamphlets on this site, 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 the local Legal Services Agency office (see the blue Government pages at the front of the phonebook)

visiting the Legal Services Agency website at www.lsa.govt.nz, or

seeing a lawyer and discussing legal aid with them.

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

Further information

Pamphlet: Appearing in the Family Court (Care of Children Act 2004) (PDF 416Kb)

Order copies of Family Court pamphlets.