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march 2014

Major Changes in the Family Court

From April 2014, the Family Court will implement significant changes in relation to Care of Children Act matters. Currently, when one party makes an application for day-to-day care or contact for a child, they are able to instruct a family lawyer and under the guidance of a family lawyer, make appropriate applications in the family court.

A direct consequence of the changes to the Family Court system means that the roles of lawyers will now be limited.

What is the new system?
The core difference in the new system is that the roles of lawyers have been eliminated in the initial stages of the system.

The new system has 3 steps:

FIRST STEP: Compulsory Parenting through Separation programme
All parties will have to complete the parenting through separation programme.

What is Parenting through Separation?
Parenting through Separation is a free information programme that educates parents about the effects of separation on children, and gives parents skills to reduce children's stress during separation.

You will be able to get information for a Parenting through Separation course from us or directly from the Family Court.

SECOND STEP: Family Dispute Resolution Service (FDR)

The FDR service will become a compulsory requirement. It is expected that both parties share the cost.

What is an FDR?
Family dispute resolution (FDR) is a new service for resolving parenting matters out of court. FDR involves a qualified mediator helping parents identify the matters in dispute, facilitating discussion, and assisting them to reach an agreement in relation to child care issues.
FDR is focused on achieving a lasting outcome and giving people skills to resolve future problems.
In some cases where FDR is inappropriate (for example, urgent proceedings, safety risks, or parties consent to orders), parties can go directly to court.

Your family lawyer will be able to give you advice prior to attending an FDR on the following:

  • Factors that are important when considering an agreement;
  • Factors the court will take into consideration when deciding who the child/children primarily live with;
  • Practicality of an agreement;
  • What types of future contact to consider;
  • What the courts will consider to be in the best interest and welfare of the child/children;
  • Contact with the extended family e.g grandparents and other whanau; and
  • All other guardianship matters.

However, under the new system, your lawyer will not be able to attend the FDR with you.

THIRD STEP: Court proceedings

If the pre-court steps fail, there is a proposed three-track system for court proceedings: Fast track (without notice), Simple track or Standard track.

Fast track: The client has the right to a lawyer and legal aid (if they qualify). A lawyer for the child is appointed after a defence is filed and if there are serious issues raised. Applications to the court that require immediate consideration can be filed on a without notice basis. This ensures that people who are exposed to violence and children needing protection have immediate access to the court.

The changes will not affect without notice applications where there are serious concerns in relation to child safety and welfare.

If you are unsure whether or not your case qualifies for a without notice application, contact us to get legal advice. 

Simple track: An application is filed and the Judge decides on which track the case should go. It is proposed to exclude lawyers from the Simple track.  No legal aid will be available and no Lawyer for Child will be appointed.

Standard track: The Standard Track is for matters where there are multiple or more serious issues such as daily care arrangements for the child.  Lawyers are excluded from the Standard track until the point of hearing. Legal aid is not available until the point of hearing. A lawyer for the child will only be appointed if there are serious issues.

HOW WE CAN HELP?

These changes will not affect:

  • Relationship Property Applications;
  • Domestic Violence Applications;
  • Applications under the Protection of Personal and Property Rights. 

If you are considering filing applications under the Care of Children Act to the Family Court, then we recommend you contact us so we can provide you with advice on what evidence needs to be included with your applications and what other steps you need to take before the matter will be set down for a hearing.  We can assist with the drafting of necessary documents. While there are many factors that will be the same as other applicants, there are many matters that will be unique to your situation that we can help you identify. Hence, it is important that you get advice before filing Family Court applications.

The changes listed above will not affect our ability to assist you in negotiating an agreement without Court proceedings.