Family Law Changes
Monday March 31, 2014
On 31 March 2014, the Family Justice System will come into effect. The new changes to the Family Justice System mainly affect the Care of Children Act 2004 (parenting matters). One of the main changes is that parents (or other applicants for a parenting order) do not have an automatic right to apply to Court without satisfying out-of-Court processes (unless there are safety concerns which warrant a "without-notice" application to the Court).
Before a parent can apply for a Parenting Order under the Care of Children Act 2004, the parent must complete a Parenting Through Separation course and have attended Family Dispute Resolution ("FDR").
This article will attempt to explain how the new changes will practically affect potential applicants to the Family Court for a Parenting Order. It is important that parents understand the processes which will be required of them before making applications to the Court. These changes are significant and are very different from the system that preceded the changes.
It requires parents to participate in the process largely without a lawyer present, although clients are not precluded from obtaining legal advice.
Out of Court processes:
Parenting Through Separation
Parents must complete a Parenting Through Separation programme before they apply to the Family Court. Parents are exempt from completing a Parenting Through Separation course if:
1. they are a cross-applicant for a parenting order;
2. their application is without notice; or
3. the application is for a consent order.
Details about this programme will be available through the Ministry of Justice website at www.justice.govt.nz.
The programme provider of the Parenting Through Separation programme will give the parent a certificate that they have completed the course. It is important that the parent retains this certificate as evidence that they have completed this part of the process. It is required as evidence to the Family Court when/if making an application for a Parenting Order.
Family Dispute Resolution
FDR, is a new initiative in the Family Justice System. FDR is provided by a FDR provider for the purposes of assisting parties to a family dispute to resolve a dispute without having to issue Family Court proceedings.
At the time of writing this article it is unclear exactly what is involved in FDR. However, it is understood that the cost of FDR is $897. Each party is required to pay half the total cost unless the party is eligible for funding. In order to be eligible for funding you need to be eligible for civil legal aid.
As part of FDR, the FDR provider can refer the parties to preparatory counselling. This counselling is only for the purposes of ensuring that both parties are able to effectively participate in FDR. In other words, counselling is not to be used for the purpose of resolving the dispute itself.
Where a party is not eligible for the funding through the Ministry of Justice, those parties can choose to make a request that their lawyers are present during FDR. However, if a party is eligible for funding through the Ministry of Justice, the funding does not extend to a lawyer attending FDR with that party.
- Once FDR is completed, the FDR provider will provide a form which states either of the following:
- that the provider has decided that it is inappropriate to start a new FDR session because of the inability to participate, domestic violence or other reasons;
- the provider decides it is inappropriate to start or continue with FDR because one party refuses to co-operate;
- the provider decides that the dispute is unable to be resolved within a reasonable time (being five hours);
- resolution has been reached.
Family Legal Aid Service
If a party is below an income threshold, they may be eligible for Family Legal Aid Service ("FLAS"). This service is available for lawyers to help clients understand their responsibilities, options, provide guidance of possible outcomes and help with completion of Court entry forms or notices of response (if required). Not all lawyers have signed up to providing this service.
A party cannot have access to FLAS if it has been accessed in the preceding 12 months. Parties who meet the income threshold for civil legal aid will qualify for FLAS. There will be an online calculator on the Ministry of Justice website to assist a party in assessing whether or not they are entitled to FLAS.
Making Applications to the Family Court
If a party is eligible to make an application to the Family Court, any application will be assigned onto one of three different tracks, being the simple track, the standard track and the without notice track. Lawyers are significantly restricted in representing clients who have entered the Court system and are precluded from appearing in Court on behalf of a client, and filing or accept service of documents on behalf of a client unless the lawyer is permitted to act under s7A of the Care of Children Act 2004.
A lawyer may act in Court for a client where:
- the proceedings relate to international child abduction under the Hague Convention;
- where the proceedings are on the without notice track;
- where an application is directed to be heard in conjunction with another application filed under a different Act, for example, the Domestic Violence Act or the Family Proceedings Act;
- the application proceeds to a hearing;
- the application proceeds to a settlement conference if a judge has directed that a party needs representation and it is likely to facilitate settlement of the issues.
Parties will need to fill out their applications for Orders on the Ministry of Justice approved forms. These will be available from the Ministry of Justice website and will be free to download.
Tracks within Court
Parties will need to understand the different tracks that their case has been allocated to by a Registrar or a Judge.
The without notice track is available to parties who satisfy the evidential test that any delay might cause a serious injury, undue hardship or risk to an applicant or child of the applicant. If you are assigned to the without notice track, it is permissible for you to be represented by a lawyer in Court.
However, the client needs to be aware that the Court can transfer the matter to a standard track or simple track which restricts the ability for a lawyer to act for them going forward.
The standard track is for on notice applications. Parties must fill out their own application on the prescribed Ministry of Justice forms. Parties may be eligible for FLAS to obtain initial legal assistance to complete the forms if they are not able to instruct a lawyer privately. Lawyers cannot act for parties in the proceedings unless there has been a direction to a hearing or there has been a direction that a party can have legal representation at a settlement conference.
There is a sub-track on the standard track being the complex track. This track is available where judges consider a proceeding particularly complex and it requires judicial oversight. Throughout the complex track the Judge has the ability to direct Case Management Conferences to allow for specific judicial case management. Lawyers can only act on complex track if there has been a direction to a hearing.
If the matter has been allocated on the simple track, a consent position has been reached by the parties or one party has not responded to an application and the matter is going to be dealt with by way of formal proof hearing. Legal representation is not available on this track.
Throughout the proceedings there are different conferences available. On the simple track, the Judge can only direct an Issues Conference to discuss whether or not the application is to proceed to a formal proof hearing or direct the matter on to the standard track.
On the standard track, the Judge has ability to order an Issues Conference again. At an Issues Conference on the standard track, the Judge and the parties must identify the issues in dispute and either direct the matter onto a Settlement Conference or to proceed to a hearing.
A Settlement Conference is similar to a mediation where the Judge acts as a mediator between the parties. It is possible to have legal representation at a Settlement Conference, but only if the Court makes a direction. A Judge needs to consider if the lawyer is likely to facilitate settlement of the issues in dispute between the parties and the parties are in need legal representation at the Settlement Conference. If one party is considered to be in need of legal representation, then both parties are able to have lawyers.
A Directions Conference enables a Judge to give orders and directions necessary to ensure that a hearing takes place as early as possible. It also enables the Court to identify all the issues that are in dispute between the parties which will need to be determined by the Court in a hearing. Legal representation is permitted at a Directions Conference.
A Pre-hearing Conference is available to enable a Judge to review a proceeding that is set down for a hearing and make further orders and directions that it considers necessary to ensure that the proceedings will be ready to be determined at the hearing. A Pre-hearing Conference can only occur where proceedings have been directed to a hearing. Parties are able to be represented at a Pre-hearing Conference by lawyers. Pre-hearing conferences will occur after a directions conference.
Case Management Conferences
Case Management Conferences allow for specific judicial case management under the Complex Track. Judges can direct as many case management conferences as required if the proceedings have been assigned to the complex track. Lawyers can only act on complex track if there has been a direction to a hearing.
Lawyer for Child
The Court may appoint a Lawyer for Child to represent a child who is a subject of or a party to the proceedings under the Care of Children Act if the Court has concerns about the safety or well being of the child and considers the appoint necessary. The Lawyer for Child's role is to act for the child in the proceedings in a way that the lawyer considers promotes the welfare and best interests of the child. The Lawyer for Child ensures any views expressed by the child to the lawyer on matters affecting the child and are relevant to the proceedings are communicated to the Court. The Lawyer for Child can also assist the parties to reach an agreement on matters in dispute.
It is important to be aware that there is a starting point in the Court that parties are liable to pay 1/3 each of Court costs which includes Lawyer for Child costs and costs of specialist reports. However, the Court may decline to make an order of costs against a party if it is satisfied that the Order will cause "serious hardship" to the party or a dependent child of the party. There is no automatic exemption for parties to pay costs by virtue of being legally aided.
If you have any questions about the new Family Law Justice System, your first port of call should be to visit the Ministry of Justice website. Alternatively, visit your local Community Law Centre who will be able to provide you with information.
If you wish to discuss Holland Beckett acting for you, please contact us to discuss. Holland Beckett will not be providing FLAS services funded through the Ministry of Justice. However, Holland Beckett will be available provide advice and assistance if a party is not eligible for FLAS.
Author - Renee Turner, Solicitor.