You do not need a lawyer in the Family Court, however, it is advisable to get some advice before representing yourself.
The Family Court hears evidence and submissions, and makes findings. The findings the Family Court makes inform the decisions it has been asked to make in relation to care arrangements and guardianship issues for children.
The Family Court considers evidence from the parties, the child/ren, specialists and external agencies and weighs this evidence in accordance with the principles in the Care of Children Act 2004, principally among those, the welfare and best interests of the child/ren.
The Family Court is a closed court. This means that the general public are not allowed to be present in the Courtroom when you appear before a Family Court Judge. Only the parties and their representatives, together with Court staff and judicial officers may have access to the documents you file with the Court, unless the Judge directs otherwise.
Generally speaking, entry into the Family Courtroom itself is restricted to the parties and their lawyers, lawyer for the child, court staff and witnesses, or anyone else permitted entry by the Judge. However support people can be present inside the courtroom in the following circumstances: – When the other party to the proceedings consents to them being present in the courtroom. – When an application under the Domestic Violence Act 1995, (regarding a protection order) is being heard and the applicant wishes a person to be present in court with them, for the purposes of providing support. – With approval from a Family Court Judge, a self-litigant may also have a lay person in Court to assist them. Sometimes referred to as a McKenzie Friend, this person can give the self-litigant advice and take notes, but they cannot act as their advocate, address the Family Court or talk about the case with anyone else. The Court must be advised ahead of time if you wish to bring someone to assist and advise you, and that person cannot give evidence for you. The presence of any additional people in the family courtroom must be approved by the Family Court Judge who is considering your proceedings and the Family Court Judge can direct people to leave at any time.
Social work reports may be requested by a Family Court Judge during your Court proceedings, particularly when the safety of the children is considered an issue. The report is compiled by a social worker at Child Youth and Family Service. Different types of reports are provided depending on what is directed by the Family Court Judge. The most simple report lists all notifications made to Child Youth and Family Service regarding the children, and any action taken by Child Youth and Family Service. More detailed social worker’s reports can be requested by the Family Court. A brief for the report is provided to the social worker outlining the issues they are to investigate and report back to the Family Court on. This type of report usually involves the social worker personally interviewing the parents and children. Reports from psychologists are less common in the Family Court and must be directed by a Family Court Judge.
The cost of the proceedings will depend on many factors; the length and complexity of the proceedings being the primary cost factors. Lawyers are encouraged to talk with their client’s about the cost of legal fees up front, so you should not be afraid to ask.
Legal aid is government funding to pay for your lawyer. You can apply for legal aid even if you are not a New Zealand citizen. Family court applications that are not funded by legal aid Legal Aid is available to eligible people for all Family Court cases, except dissolution of marriage (divorce).
Legal aid is not always free. Your income and assets will be assessed in your application for legal aid and you may be required to repay all or part of the costs of your legal fees. As a general rule, applicants in family violence proceedings (i.e. protection orders) are not required to repay their legal aid.
Find out if you qualify for funding by calling us now.
We will complete the application for you and submit it on your behalf.
Call 07 346 0026 or 027 234 4700 to discuss your family matters. We may determine urgent court orders a required, or may work with you to resolve your care and guardianship issues, with or without Family Court intervention.
Parenting orders are made by the Family Court and set out who will have day-to-day care (formerly custody) of a child and who can have contact (or access) with a child. These Orders are made as a last resort when parents have been unable to agree these matters amongst themselves. However, sometimes these orders are made on the basis of consent – this is where the parents have reached an agreement and have asked the court to turn the terms of the agreement into a binding court order.
Separated parents or guardians may record their agreement regarding care arrangements and guardianship issues in writing. Parenting agreements will include the following: – Arrangements for day-to-day care: the parents or guardians might agree, for example, that they will share day-to-day care of the children equally, or that one of them will have day-to-day care most or all of the time. – Arrangements for contact: if only one parent or guardian is to have day-to-day care of the children, an agreement can record the arrangements for the children to spend time with the other person, including on special days such as birthdays and Christmas. – Other parenting issues: an agreement might address issues to do with the children’s care, development and upbringing, such as school, religion, education and travel. Contact us if you think you need Family Legal Advice or if you think a Parenting Agreement may work for you. The Care of Children Act 2004 supports parents and guardians agreeing on their own arrangements for the care of their children. When an agreement is not working the Act also encourages parents and guardians to sort out their differences themselves. The Family Court arranges free counselling if necessary, to help them come to a new agreement. A parenting agreement may be the basis for a Court Order. A parenting agreement cannot be enforced in the same way that a Family Court parenting order can. However, parents and guardians can apply to the Family Court to have a parenting agreement made into a parenting order by consent. The terms of the agreement can then be enforced like any other Court order.
The Family Court can make two types of parenting orders; interim parenting orders and final parenting orders. Interim parenting orders in the Family Court An interim parenting order lasts until a particular date or until a particular thing happens; for example, the Family Court making a final order, or until the Family Court says the order stops. If the interim parenting 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 Family Court to reduce or extend the interim parenting order, provided they ask before the year is up. The parents must take all reasonable steps to obtain a final parenting order as soon as they can. Final parenting orders in the Family Court Final parenting orders are usually made at the end of proceedings. A final parenting order lasts until a child turns 16 (unless it’s a special case and the Family Court has decided that the parenting order should continue after that.
Yes. You can ask the Family Court to change (vary) or cancel (discharge) a parenting order. However the person wanting to change the parenting order must provide the Family Court with reasons for seeking the change, and those reasons should show the proposed variation is in the welfare and best interests of the child/ren effected by the parenting order.
The Family Court can appoint a lawyer for the child/ren at any time after an application has been filed. The job of the lawyer for the child/ren is to: – Explain the Family Court process to the child in a way they can understand. – Meet with the child (if the child is old enough) to find out what they think about the dispute and possible ways to solve it. – Make sure the child’s views and all issues relevant to the child’s welfare and best interests are explained to the Family Court. – Represent the child and the child’s welfare and best interests as the case goes through the court system. The lawyer for the child/ren usually also meets with the parties (usually parents) to discuss matters with them. The Lawyer for the Child will then file a report with the Family Court detailing their findings and may make recommendations for how the matter should be progressed. The lawyer for the child/ren acts for the child/ren alone. Like any other lawyer who represents a party in the Family Court proceeding, the lawyer for the child/ren can bring witnesses into the Court to give evidence, cross-examine witnesses brought to the Family Court by the parties, 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.
If a parent or other party to a parenting order is not complying with it, the Family Court may refer both parties to counselling to try to get them to work out the problem themselves. The Family Court can also make various orders to deal with the situation. If the Family 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 Family Court telling the person off – Change the order: the Family Court can change (vary) or cancel (discharge) the parenting order – Order a bond be paid: the Family Court can require the person to pay money to the Family Court as a bond, which they could lose if they continue to disobey the order – 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 Family Court can order the Police or a social worker to pick up the child and deliver them to the other person.
If the Family Court Judge is concerned for a child’s safety, the Family Court may order or direct that a person may only have supervised contact with the child. For example, if there have been allegations of domestic violence, drug use, or a protection order has been made.
The following people can apply to the Family Court for a parenting order: – 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 (formerly custody) of the child – Any member of the child’s family, whanau or other family group who gains the Family Court’s permission to apply – Anyone else who gets the Family Court’s permission to apply.
Day-to-day care used to be called custody, and contact used to be called access. A parenting order (often informally termed day-to-day care or contact orders) is the new name for what used to be called custody orders and access orders. 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. Contact with the child Contact means 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.
Shared care Shared care is a term used in the Family Court to refer to a variety of care arrangements for children which typically result in a child spending time in the care of more than one parent or caregiver. It may, or may not involve 50/50 shared care of the children. IRD & WINZ have their own view of what constitutes shared care. If you would like to know more about shared care arrangements, please contact us.
The Family Legal Advice Service is wholly funded by the Ministry of Justice. Eligibility is based on your last three months income and the number of dependents you have. Please contact us to check your eligibility.
Guardianship is the term used to describe the bundle of rights and responsibilities a parent (or a person who has been appointed as a child’s guardian) has in relation to a child. A guardian of a child is someone the law has given all the duties, rights, responsibilities and powers that a parent has in bringing up that child. Every child in New Zealand has at least one natural guardian (the mother). Most children in New Zealand have two guardians (the other guardian being the father, but this is not automatically the case). Although most parents will be guardians of their children, others can be guardians of those children as well. A child can have more than one guardian, and they may include parents and any number of others. In some cases the Family or High Court may become the guardian of a child. Even if guardians separate or divorce, they retain their rights of guardianship. There is a very high threshold for removing rights from a guardian. For example, one cannot be removed as guardian just because he or she does not want to be a guardian anymore. A guardian who does not have day-to-day care (formerly custody) of a child, may feel excluded. However a guardian has the right to participate in important decisions regarding the child. If guardians cannot agree on these decisions, they can ask the Family Court to make a decision on the guardianship issue in dispute.
Sometimes guardians cannot agree on arrangements for children, such as where they will live or go to school. Guardians can access services outside of court to help settle these matters. If that does not work, they can apply through the Family Court for an Order to Settle a Dispute between Guardians. Conversely, if parties agree a guardianship issue, they can request the order to make a guardianship order by consent to give binding legal effect to their agreement.
Family violence can include: – Physical abuse – Sexual abuse – Psychological abuse – including intimidation, harassment, damage to property, threats of physical abuse, sexual abuse, or psychological abuse – Financial or economic abuse (for example, denying or limiting access to financial resources, or preventing or restricting employment opportunities or access to education). In relation to a child family violence can also include: – Psychological abuses in the form of causing or allowing the child to see or hear the physical, sexual, or psychological abuse of a person with whom the child has a domestic relationship or putting the child, or allowing the child to be put, at real risk of seeing or hearing that abuse occurring. (Note – the person who suffers that abuse is not regarded as having caused or allowed the child to see or hear the abuse). A person must be in a family relationship with the perpetrator in order to apply for a protection order. If you have questions regarding the definitions for family violence and family relationship, please contact us.
A Paternity Order is a legal order granted by the Family Court. It declares fatherhood (i.e. paternity).
Adoption is the complete cancelation of guardianship rights. Adoption is where a child legally becomes the child of someone other than a birth parent and the child’s birth certificate is altered to reflect this change of parent. This is different to parenting orders in the Family Court. Parenting orders specify the care arrangements for a child, however they do no change parenthood. Parenting orders are required to consider contact with the child’s parents and external, biological family. However, adoption orders are not required to contain contact arrangements with birth parents.
