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May 2005

Care of Children Act

A “new” approach to assisting families

“Custody” (day to day care of the child) and “Access” (contact with the child) are terms which have defined contact for separated parents and their children for the last 37 years. For some time now the terms “custody” and “access” have been associated amongst parents with winning (custody) or losing (access) their contact with their children. The Care of Children Act 2004 (“the Act”) will replace the Guardianship Act 1968 (“the old Act”) as of 1 July 2005. The Act is intended to help families and their children by:

  • encouraging co-operative parenting
  • removing custody and access as terms which define contact
  • defining “guardianship”
  • emphasising the child’s views
  • recognising the importance of wider familial relationships
  • providing effective penalties for breaching Court orders

The Act has also opened up Family Court proceedings to the public. Media and support persons are now permitted (in certain circumstances) to attend Court whereas under the old Act they were not.

Encouraging co-operative parenting

The Act places emphasis upon parents and guardians making their own arrangements regarding their children and therefore encourages parents to reach agreements if possible rather than engage in lengthy litigation.

Removing “custody” and “access”

The Act replaces custody and access. Custody is now called “day to day care” and access is called “contact”. The day to day care of and contact with a child will now be embodied in one order known as a “Parenting Order”. Access was not defined under the old Act. Contact is now defined to include indirect contact with a child such as telephone, letter and email.

What is Guardianship?

Guardianship includes the right to have a say in the child’s upbringing (such as name, place of residence, education, religion and medical treatment) and is now expressly defined in the Act. Guardianship ends when a child turns 18 years as opposed to 20 years under the old Act. Under the previous law, a biological father who was not living with the mother at the time of the child’s birth had to apply to be a guardian of the child. Under the Act a biological father of the child is automatically a guardian:

  • if he is married to or in a de facto relationship with the mother from the time of conception to the time of birth; or
  • if his details are on the child’s birth certificate; or
  • if he applies to the Court to be appointed a Guardian.

The Child’s views

The Act states that a child must be given a reasonable opportunity to express their views on matters affecting that child and any views that the child expresses must be taken into account by the Court. Under the old Act, the child’s views were known as the child’s “wishes” and a Court could take the wishes into account depending on the child’s age and maturity. What was formerly known as Counsel for the Child (the child’s lawyer) is now known as “lawyer to act for the child”. The Court must appoint a lawyer to act for the child in any proceedings which involve the day to day care of the child or contact with the child where those proceedings appear likely to proceed to a hearing.

Wider family are important

The Act recognises that the relationships between the child and other members of the family should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development and upbringing. A parent, guardian or partner of a parent may apply for a parenting order. Any other person who is a member of the child’s family may apply if granted leave by the Court to do so.

Breaching Parenting Orders

The Act wants to make Parenting Orders work. If a party has breached a Parenting Order the Court can upon application give the person in breach a warning or vary the Parenting Order by reducing the time the breaching party has with the child. It is an offence under the Act for a person without reasonable excuse and with intent, to prevent a Parenting Order from being complied with. The penalty upon conviction is imprisonment for a term not exceeding three months or a fine not exceeding $2,500. It is also an offence to remove a child from New Zealand knowing that proceedings are pending or about to be commenced under the Act.

Openness of Family Court proceedings

Under the old Act, only parties to the proceedings were permitted to be present in Court. The Act now allows for the media to be present during a Court hearing. However the Act prohibits the media publishing any details which would lead to the identification of the parties to the proceedings, the child or the witnesses. The Act also allows support persons to be present in the Courtroom, however that support person may not help a party conduct his or her case. A Judge must agree to request for a support person to be present unless there is good reason why the support person should not be present. The Judge, however, can still ask the media or a support person to leave the room.

Conclusions

There is no doubt that after 37 years, important issues relating to families needed to be revisited. It may take some time to ascertain whether the changes incorporated in the Act have achieved the desired results or whether there has simply been a change of terminology.