Procedures in the Family Court
So far, this discussion paper has talked only about rights and responsibilities issues of substance. The vast majority of parents settle their custody and access disputes without recourse to the Family Court. However, where agreement has not been reached, the processes which are used for resolving disputes between parents and enforcing the Family Court s custody and access orders are important. There have been issues raised about these processes which need looking into.
Generally, guardianship, custody, and access matters are dealt with in the Family Court, although appeals to the High Court can be made about any orders made under the Act. The procedures that will be used for resolving disputes are set out in the Family Proceedings Act 1980 and the Guardianship Act.
When one parent applies for custody or access, both the parents lawyers and the Court must look at the possibility of reconciliation first, and then at conciliation. The Court can order parents to go to counselling, or the parents themselves can request it. Counselling is the main non-judicial means of resolving disputes. The Judge will generally convene mediation conferences, at which both parties can discuss disputed issues with the Judge. The Judge chairs the conference and makes sure both parties have an opportunity to express their views. The parents may request a mediation conference. Both parents can have legal representation at mediation conferences and the child or young person s counsel can also attend where appointed. If the mediation conference succeeds in helping the parents to sort out an agreement about custody and access issues, or if the parents reach an agreement by themselves, the Judge can make an order to enforce it.
Children and young people are not generally entitled to counselling or entitled to attend mediation conferences as of right.
Family Court Co-ordinators are available at many Family Courts to give information or help. The Family Court Co-ordinator provides information on the free counselling services available through the Family Court and arranges referrals to local counsellors and agencies. The Family Court Co-ordinator may meet with potential applicants before arranging counselling.
5.1 Are the Courts the best agencies, or the only agencies appropriate to offer dispute resolution services for custody and access matters?
5.2 Should the Court proceedings be more in the form of an inquiry rather than a contest between parties?
5.3 Should the Judge and the lawyers who appear before the Family Court always have a duty to promote reconciliation?
5.4 Is counselling the best way to try and resolve custody and access disputes?
5.5 Should children and young people be entitled to counselling services and to attend mediation conferences as of right?
5.6 Should provision be made for the participation of wider family/whanau in counselling or mediation conferences? How could this be achieved?
5.7 Is mediation which is led by the Judge the best way of working for agreements in disputes over custody and access?
5.8 Are there other forms of alternative dispute resolution not involving the Court which should be available? What might some options be?
Court appointed specialists and counsel for the child
The Family Court has scope to seek additional help. The Court can order a report by a social worker, and can also ask for a medical, psychiatric or psychological report on the child or young person. It can appoint counsel to represent any child or young person who is involved in the proceedings (counsel for the child) .
Sometimes parents may disagree with the contents of the specialist reports. Sometimes parents feel that the counsel for the child favours one of the parents over the other. There are issues about the best way to deal with concerns a parent may have about the professional standards of those appointed by the Court.
5.9 Is there a need for more information to be given to parents about the purpose of the social worker or psychological reports?
5.10 How can the views of children and young people best be represented in the Family Court? Are lawyers the most appropriate people to do this? Who else should be involved?
5.11 What sort of information on custody and access should be provided to children and young people? Who should provide this information?
5.12 Do parents need more information about the role of counsel for the child?
5.13 Are there other services that should be provided by the Family Court ( for example, social work services, mediation services provided by trained mediators) ?
5.14 What else could be done to address issues in this area?
Private proceedings
Custody and access proceedings are not open to the public. No report on the proceedings can be published except with leave of the Court. The reason is that the proceedings are essentially private family matters involving children and young people and there does not seem to be any wider public interest in the dispute.
Concerns have been expressed that secrecy prevents the public from gaining an understanding of important social issues and approaches taken to address them by the Family Court.
5.15 Should the proceedings be more open?
5.16 How do we balance the need for openness with the essentially private nature of these proceedings and the need to protect the interests of the children and young people involved?
5.17 Does the Family Court have a role in promoting a better understanding of its services and the way it operates? How can this be achieved?
5.18 Should the Family Court provide information sessions to potential participants? Who should facilitate such sessions? What information should be provided to participants?
Delays, costs, and repeat applications
Concerns are often expressed about delays in getting disputes over custody and access resolved by the courts. There are also concerns about the costs of court proceedings.
A related issue is that in some cases, parents return again and again to the courts in order to contest custody and access matters. These applications use up Family Court time, creating delays and increasing costs, but the Court has little power to stop these repeat applications.
5.19 Do you have any ideas that might help to make sure that disputes are handled more quickly and cheaply? For example, should the Family Court provide do-it-yourself kits to potential parties to proceedings? ? How should these kits be publicised?
5.20 Should the Court have greater powers to stop people from making repeat applications for custody and access?
Enforcement of Court Orders
The Family Court may make decisions and order that certain things take place, but people do not always comply with Court orders so there have to be mechanisms for enforcing the decisions if necessary.
Some have concerns that the enforcement mechanisms are rarely used and are of limited practical use. In particular, in relation to access, if one parent does not co-operate it can be difficult for the other parent to have their rights enforced. The Court does have a number of enforcement powers:
- The Court may issue a warrant authorising the police or a social worker to pick up and deliver a child to the party who is entitled to access or custody ( unless this would be contrary to the wishes of a child over 18).
- The Court can issue warrants directing the police or a social worker to take the child and place it in the care of a suitable person ( pending a further Court order) where it believes that any person is about to take a child out of New Zealand to defeat one party s custody or access rights. Tickets and passports can be taken from the child and the parent concerned.
As with other decisions in this area, the Court s powers will only be used when it is clear that it will be in the best interests of the child or young person to do so.
5.21 How could the enforcement mechanisms be strengthened in a way that promotes the welfare of the child or young person?
5.22 How can families or communities be helped to support Court Orders? How can we ensure children and young persons views over time are acknowledged and influence enforcement, or changes, to Court orders?
- There is also provision for New Zealand custody and access orders to be registered and recognised in overseas countries and for the orders of overseas countries to be registered and recognised in New Zealand ( this is currently only in operation between New Zealand and Australia).
- The Guardianship Amendment Act 1991 implements in New Zealand the Hague Convention on the Civil Aspects of International Child Abduction. The Convention provides mechanisms for the return of children who have been taken to another country in breach of one parent s custody rights so that issues of custody and access can be decided in the child's country of residence.
5.23 Are there any problems with the way these provisions are working?
Supervised access
At present the Court must order that access be supervised for a parent who the Court accepts has been violent against anyone in the immediate family (unless it is satisfied the child or young person will be safe). This is because there is a need to protect children and young people from direct violence and from the harm that results in witnessing violence.
5.24 Is supervised access, where the access parent has been violent, the best way to ensure the child s safety? Are there other ways that the child can have safe access to a parent who has been violent?
5.25 Should the violent parent be required to pay for the cost of supervision when they seek to exercise access rights?
5.26 Is the purpose of the supervised access position generally understood?
