Question - Care of children
"What if I can't agree about what happens with my children?"
The Care of Children Act provides structure around in this case. You might need a lawyer just to give you some initial one-off advice. This can sometimes avoid the matter going to the Family Court. Click here for more info (this goes to our sister-site EbbornLaw.co.nz).
Question - Cost of legal services
"I don't think I can afford a lawyer but I need one. What are my options?"
We can help you apply for legal aid. We don't charge anything for coming in to see us to arrange this. We have helped thousands of people access justice this way and we're really good at it. Also, we're friendly :) Find out more information about legal aid here.
If you are ineligible for legal aid then we have ways to help you afford our private fees, which are fixed: in other words - you know how much each stage costs up-front and we guarantee that price.
Question - Family violence
"I'm in a relationship and I'm scared. I'm getting abused by another person and I need help. What can I do?"
Firstly, make yourself safe. If you are in immediate danger call 111 and ask for Police. There is a free phone number that connects you to the helpline at Women's Refuge (0800) 733 843. They can help. If you need a protection order this can be arranged very quickly. More information is here.
Portia (Ebborn Law) is the country's largest provider of family violence litigation and the only law firm that is a member of the Canterbury Family Violence Collaborative. The firm has been built on strong principles of equality and feminisim and we align closely with the women's refuge movement.
Having said all that, we provide legal services for both respondents and applicants... no matter what, we give you our very best effort.
Useful information about family law...
Family Dispute Resolution
Family Dispute Resolution (FDR) is an out-of-court mediation process to assist families to make decisions about children. The main purpose is to discuss the needs of the children however sometimes mediators will permit discussion about other issues if it helps toward getting an agreement about the children. It is accessed primarily through two nationwide organisations: Fairway and Family Works.
The mediator will help participants identify the issues they wish to talk about FDR is a prerequisite to filing an on-notice Care of Children Act Application in the Family Court. A Judge may also direct parties to attend Family Dispute Resolution after court proceedings have begun if the Judge believes it will assist the parties to resolve some or all of their dispute. FDR mediation can be used twice within a 12-month period for each dispute (even if the same parties are involved). Note this is different from the eligibility for Family Legal Advice Service funding (to see a lawyer), which is only accessible once every 12-month period per case (e.g. if the parties to the dispute are the same). Call us if you get confused about this! A person might be exempted from FDR if there is a barrier to participation (e.g. family violence) or the other party refuses to attend.
The mediator will help participants identify the core issues they wish to talk about. These might include topics like: where the children live, drop off times and places, what happens on special occasions, making decisions about the children’s upbringing (e.g. which school the children will attend).
If agreement is reached then participants can use the mediation agreement as the basis for their care/contact arrangements. It is also possible for the mediation agreement to be recorded in a court document called a Consent Memorandum. This is a document which asks the Court to issue the appropriate order outlining what was agreed at mediation and is enforceable, whereas a mediation agreement is not. However, not all parents need a Court Order. If the dispute is not resolved, or only partially resolved, then an Application may be made to Court to have the dispute resolved.
The parties attending and the mediator decide who else may attend a mediation. Depending on the situation it might be beneficial to include extended family/whanau. In most cases, children will not be involved. It is unlikely there will be a Lawyer for Child attending. Normally the parties’ lawyers do not attend either, however it is possible for lawyers to attend if this is agreed between the parties and the mediator (there is no legal aid/Family Legal Advice Service funding for this).
The cost of mediation is capped by the government, so if you don't qualify for government assistance (FLAS) you will pay no more than $448.50 for your share of the mediation. The Ministry of Justice funding eligibility table will help assess whether a person is eligible for the subsidy.
Portia supports the resolution of parenting disputes using the Family Dispute Resolution service. We feel this is often results in a positive outcome for the child or children, rather than a drawn-out dispute through the Family Court.
Family Legal Advice Service (FLAS)
Care of Children Act (CoCA) proceedings encourage parties to first try to resolve matters themselves through mechanisms such as Family Dispute Resolution (FDR), with the Court as a last resort. Before parties may enter the court system they are required to have attended a Parenting Through Separation course and attempted FDR mediation. The parties are also required to file and be served their own court documents, and attend Court themselves until the Court directs that lawyers may act. An exception is when there is an immediate risk of harm or hardship (your lawyer can advise you on this prior to you starting mediation).
Instead of legal aid being immediately available for disputes under CoCA there is a form of government funding called the Family Legal Advice Service (FLAS).
The funding comes in two parts and the person ceases to be a client of the law firm each time the FLAS service is provided. If the Court directs lawyers to act (or if there are certain other circumstances) then the parties might be eligible for Legal Aid.
Click HERE for information on
and find out if you're
eligible for free legal advice.
FLAS part 1
FLAS part one covers the your rights and responsibilities in regards to your children, plus your legal options in the context of mediation.
This normally takes an hour and we can provide this service over the phone, by video link or in person: whatever suits you.
FLAS part 2
FLAS part two is a service whereby a lawyer will help you in completing court forms. You will need to complete the forms yourself (because your application should reflect your own voice). The lawyer will meet with you and give you guidance and assistance to ensure the court documents are completed properly.
FLAS is a limited retainer: in other words the contract with the lawyer is completed once the FLAS service is provided.
If further advice or help filling out forms is required, then you will need to pay privately or seek help from a support worker, unless you are in a situation where you are eligible to apply for legal aid.
The law states that an applicant may be exempted from attending Parenting Through Separation if they have attended the course within the last two years or if they are unable to take part effectively. Family Dispute Resolution can be exempted if the parties have reached agreement and are applying for a Consent Order or are applying to enforce an existing Order; if there has been domestic violence by one of the people involved in the dispute, or; if the mediator has reasonable grounds for deciding that FDR is inappropriate.
The Paramountcy Principle
The Paramountcy Principle is outlined in the Care of Children Act 2004. It states that the child’s best interest and welfare is the first and paramount consideration. The Act outlines things a Judge must take into consideration when making orders around care and protection of children:
In addition, a Judge may take the following into account:
When making decisions the Court must do so in a timeframe which is appropriate to the child’s sense of time. This means that it is more urgent for decisions to be made for younger children than older ones, because of their sense of time, how long things take and because the impact of delay upon the child is different.
A judge needs to take into account the conduct of the person who is seeking to have a role in the upbringing of the child – but only if their conduct is relevant to the child’s best interests and welfare. For example, it is unlikely to be relevant that the relationship ended because of an affair. That is an issue for the parents but unlikely to be relevant to the child’s best interests and welfare (e.g. the child’s best interests and welfare would be affected if one parent unfairly tried to isolate the other parent).
Domestic Violence & Family Harm
Note that a replacement to the current Domestic Violence Act 1995 - called the Family Violence Act 2018 - will come into force on 01 July 2019.
While we often refer to “family violence”, the main piece of legislation in the Family Court addressing violence between adults is the Domestic Violence Act. Domestic violence includes physical violence, sexual violence and psychological/emotional violence (e.g. stalking, harassment, verbal abuse, economic abuse, controlling or manipulative behaviour, threats, belittling, etc.). More recently the terminology "family harm" has been favoured by Police and other sector agencies.
When Police attend a family violence incident it is possible for the Police to issue a Police Safety Order (PSO) when they believe family violence has occurred or may occur. A PSO is a short term order which lasts between one to five days.
The person named in the PSO (bound person) must leave the address even if it is owned by the person or is where they usually live. The bound person must not subject the protected person (or their children) to any further violence or harassment. The bound person must not encourage anyone else to abuse or harass the protected person on their behalf.
A PSO is different from a Protection Order, which is issued by the Court. This requires a court application and an affidavit. The Court needs to know whether there is a domestic or close personal relationship; what violence has occurred and; why the court order is necessary.
An application is filed, served on the other person – who has a chance to reply – and if the application is defended then a hearing is held for a Judge to determine any disputed facts and decide if the order is necessary.
In urgent situations (and this is what leads to most applications being made) an application and affidavit may be filed and seen quickly by a Judge. The Judge will make a decision about whether a Temporary Protection Order should be issued so there is immediate protection for the applicant and the children of the family. The Judge needs to be satisfied that the delay that might be caused by applying on notice (the standard process) might place the applicant or the children of the family at serious risk of injury, harm or undue hardship. The other party still has the chance to respond and have the matter heard in Court if the person disputes that a permanent order should be made.
In some situations (particularly when there are children) it is possible to apply for orders permitting exclusive occupation of the home and use of the furniture (including to furnish a new home) by the protected person.
Depending on the circumstance, there is limited funding through the Court to pay for supervised contact but this is only intended to be a short term solution and is often for the purpose of receiving a report from the supervisor.
Women's Refuge crisis line: 0800 733 843