Care of children - important court changes

Relationships (Family)

Major changes have been made to the Family Court processes in an effort to reduce the number of Family Court appearances and reach child care agreements via other avenues.

On 31 March 2014 major changes were made to the Care of Children Act 2004 with the intention of making it easier for parents and others interested in a child’s wellbeing to reach an agreement over care arrangements. The underlying reason for these changes is the belief that the court should be a last resort (other than in cases of urgency) and that the parties are better off resolving their disputes outside the Family Court process. As a result, the role of lawyers has been restricted. Judges do have discretion to allow legal representation at the important stages of the process but this will not happen automatically.

Before filing proceedings (other than urgent “without notice” applications) parties are now required to complete a number of new out of court processes which are aimed at helping everyone come to agreement between themselves without the need for the court’s assistance.

The first initiative introduced is the requirement to complete a parenting through separation course. This course is free and the purpose of the course is to make sure all of parties are able to effectively participate in the next step of the process which is family dispute resolution. If it is decided that the family dispute resolution process is not appropriate (for example where there is violence or a lack of ability to participate) then family dispute resolution can be bypassed and the parties can go straight into the court system.

Both parties are required to attend family dispute resolution. Lawyers are not able to be present but support persons are allowed to attend. The family dispute resolution mediator’s role is to identify the issues between the parties and assist the parties to reach agreement whilst ensuring that the agreements reached are in the best interests of the child/ren involved.

If agreement is reached, the agreement is referred to a Judge. As long as the Judge deems the agreement to be appropriate and that the order would ensure the child/ren’s best interests, welfare and safety, an order can be made on the papers without the need for any court appearances.

If agreement is not reached and the parties require the assistance of the court to decide what the care arrangements should be, the matter will be put onto the standard track and the court process will commence.

If the matter is urgent, for example, if there is a risk of serious future injury or hardship to the child/ren or a risk to the child/ren’s future personal safety, a “without notice” application can be made directly to the court without the need for the parties to first attend the out of court processes (parenting through separation course and family dispute resolution). These types of applications are dealt with immediately by the court and the parties are allowed legal representation.

Although these changes are recent, New Zealand is not alone in making these types of changes to the Family Court system, similar changes have taken place in other countries such as Australia and England where alternative dispute resolution processes have been put in place to divert cases away from the courts

If you would like any advice regarding relationships or separation, please contact our friendly Relationships team.

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