Client Care Statement
This document contains information we are required to provide to all clients under the Lawyers and Conveyancers Act 2006. It has been written in plain English where possible. The Client Care Statement is one of three documents that make up the 'retainer' or contract clients have with the firm. Download or view it here.
Our complaints policy and procedure are explained when a customer first becomes a client of the firm. However, we welcome anyone to let us know if there is something they are unhappy with or concerned about. Download or view the Complaints Policy here.
New Zealand Law Society complaints service free phone 0800 261 801
Family Law Information
Protection Orders and Police Safety Orders
The main piece of legislation in the Family Court addressing violence between adults is the Family Violence Act 2018. Family 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.
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.
Unlike PSOs, protection orders are 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 a 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 (TPO) 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.
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.
Being Served with a Protection Order
Temporary protections orders (those issued 'without notice'/under urgency) will normally be served on a respondent by the NZ Police.
If you've been served with a temporary protection order then the first thing you need to do is read it, understand it and do what it says.
Along with the protection order there will be an order to attend a non-violence programme. Our lawyers will almost always recommend you contact the provider and attend the programme.
You have the right to defend the order. If you do not defend the order then after three months the order will automatically become final.
If you have a permanent protection order against you, you are able to apply to Court to have it discharged.
Defending or discharging a protection order - like anything involving the Court - is not as straightforward as it sounds. Seeking legal advice from experts is a smart thing to do.
Children, Parents, Guardians and the Law
There is an emphasis on all parties working together to resolve their disputes around children in the Family Court. Before filing a non-urgent application in the Family Court the applicant must have completed Parenting Through Separation within the last two years and the parties must have attempted (or been exempted from) Family Dispute Resolution (FDR) mediation. There is limited funding available for people who are unable to privately pay a lawyer. The government funds the Family Legal Advice Service (FLAS) for pre-court legal advice. This advice is broken into two stages and is discussed in detail further on this page.
Lawyers are prevented from acting for parties in non-urgent parenting or guardianship proceedings until directed to do so by a Judge or if the matter is going to a hearing, so in most instances the applicant must file the Court documents themselves. While there is nothing preventing someone from taking advice from a lawyer, it is likely the client will need to attend the first Court event without representation: this is normally an issues conference for the Judge to make orders or directions, or decide which 'track' the case is to proceed on. We recommend our clients ask the Judge for lawyers to act at that time.
The majority of matters will proceed along the standard track: an application is filed, an issues conference is held with a Judge and the matter is then likely to be directed to a settlement conference if the Judge believes the matter is capable of resolution. Lawyers may act at that point if the Court directs, so it is important that an applicant or respondent asks the Judge for a direction that lawyers may act. If there is no agreement at the settlement conference the matter will be set down for a hearing and lawyers are allowed to act. The next court event is likely to be a directions conference to seek further directions necessary to ready the matter for a hearing. This includes specialist reports like psychologists reports or social work reports.
Legal aid funding is strictly limited to providing legal advice and undertaking legal work on a file. Legal work is any work necessary to progress the matter through court. It does not include undertaking negotiations around matters that cannot be enforced in a parenting order, for example when one party is late to a changeover.
The family justice system is complex. The diagram below, issued by the Ministry of Justice, attempts to explain it. You are entitled to make applications yourself and to represent yourself in court but be warned: this is not as straightforward as it seems. Get legal advice from a specialist family lawyer if you can.
FLAS - Family Legal Advice Service
Legal aid is only available for 'on-notice' Care of Children Act matters in exceptional circumstances. But to assist low-income people to access the family justice system there is the Family Legal Advice Service.
If you qualify for government funding you can get some free advice from a lawyer to help you understand the legal aspects of settling a dispute about caring for your children. This service can also help you fill out forms to apply to the Family Court. It is different from legal aid, which is where the government pays for a lawyer for those who are eligible once their case is in court.
The Family Legal Advice Service covers two things: your rights and responsibilities in regard to your children, and; your legal options in agreeing how you'll care for your children. It can also cover the cost for getting a lawyer to help fill in forms if you do go to the Family Court, whether you are asking the Court to do something (applying to the Court) or responding when someone is asking the Court to do something that involves you. If you need more advice or to get help filling out further forms than the service provides you will have to pay privately or seek free help from a Community Law Centre or Citizens Advice Bureau.
You may access FLAS at any time. Getting some legal advice before, during or after Family Dispute Resolution may be helpful. You might want to talk to one of our lawyers after Parenting Through Separation about your options or the legal aspects of a private agreement you're thinking of making after you complete mediation. If you want to know if you qualify for the free service just ring us on (0800) 339 223 and we'll do the calculations for you.
WHAT ARE... Justices of the Peace?
Justices of the Peace (JPs) have existed for over 650 years. Originally they guarded the King's peace and were established formally under the Justice of the Peace Act 1361 during the reign of Edward III. JPs were generally members of the gentry (wealthy landowners) as the position was voluntary; to be a JP was prestigious, never a way to make money.
Throughout history JPs have undertaken a variety of functions. They would conduct arraignments in criminal cases and also try minor criminal infractions. They were appointed by municipal corporations until 1835, when Parliament enacted legislation requiring appointment by the Crown. Around this time a JP’s role extended to include regulating wages, food supplies and infrastructure such as roads and bridges across the United Kingdom.
JPs are today appointed in a number of Commonwealth countries. Although their roles and responsibilities differ there is a unifying theme: a JP must be someone of good standing in the community.
Aotearoa New Zealand’s first JP was appointed in 1814, a missionary by the name of Thomas Kendall. There are now almost 6,000 serving in communities across the country. Our JPs can statutorily swear oaths and take declarations. Some are also authorised to hear minor court cases, to issue search warrants in certain situations and act as a Visiting Justice in prisons, for the purposes of hearing a prisoner’s grievances.
Many government agencies and businesses trust JPs to witness signatures on a wide variety of documents. Indeed, while there is no legal criteria for witnessing a signature, many documents require a lawyer or a JP to bear witness.
If you are interested in becoming a JP then ask your local Member of Parliament to nominate you. The Governor-General appoints JPs for lifetime tenure. On appointment JPs must swear the Judicial Oath before a Judge in which they state:
"I will do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will."
The Oath is indicative of how we see JPs: trustworthy people with integrity, honour and good character who, after nearly seven centuries, continue to perform an important function in our society.
So what powers does a Justice of the Peace have? It depends, as there are two types of duties a JP carries out: Ministerial and Judicial.
District Court Judges are also Justices of the Peace. When sitting alone they have the powers and functions equivalent to two Justices of the Peace when sitting in Court. So, 1 Judge = 2 JPs.
WHAT ARE... Community Law Centres?
Community Law is one of the profession’s most venerable millennials: last year, this grand organisation turned a respectable 40. The organisation is ubiquitous with 21 sites across New Zealand and three specialist branches covering disability, Māori land and youth law. It’s easy to pass over Community Law Centres (CLCs) with only a brief nod to the ‘good works’ they perform, but statistically this organisation has a significant impact on access to justice and should be taken seriously.
A 2017 report prepared by the New Zealand Institute of Economic Research (NZIER) shows CLCs provided advice, assistance or representation to at least 48,000 clients taking almost 107,000 hours over the 2015-16 financial year. Compare that to Portia’s figures: in 2017/18 our busy firm opened just 858 new matters. Bear in mind that Portia was the country’s largest provider of family legal aid firm at that time (and still are). What was the cost of this enormous public service? $11M: an average of $230 per client or $102/hour. Outstanding value. Who pays for this? 64% comes from interest earned on solicitors’ trust accounts while the remainder came from other taxpayer sources.
Who benefits? We all do. Access to justice is essential to a healthy society. According to the United Nations, absence of access to justice results in “people … unable to have their voice heard, exercise their rights, challenge discrimination or hold decision makers accountable”. It’s that last bit – the bit about accountability, that I feel is the most critical outcome. Consider if your grandmother or elderly uncle were the victim of a bank fraud. Having a place to go to get free, no-strings-attached legal advice in a community-friendly setting would be a boon. Sometimes just that little piece of advice, assistance person assistance or information can make all the difference to a person who is vulnerable.
The provision of such a service is a direct check and balance to the powers of the State and of corporations. Whilst in Aotearoa we enjoy a number of civil liberties, we don’t teach them in schools. A lot of people don’t know their rights: the recent misbehaviour by the New Zealand Security Intelligence Service (issuing “warning letters” when they had no legal right to do so) is a small but significant example of this. In a fiduciary relationship, one that is defined by one party having power over the other, a balance to that power is always going to be needed: the temptation to abuse power is too great otherwise.
Community Law Centres are a small but effective weight on the scales of justice, giving strength to the vulnerable and to Māori, with a specialist Māori land law office based in Dunedin grievances supporting the Ngāi/Kāi Tahu rohe. Community Law also provide specialist support for people with disabilities, and for young people.
Recently some CLCs started providing legal aid, to the distress and dissatisfaction of a number of practitioners. We say "good on them!" but at the same time urge Community Law Centres o Aotearoa to join other legal aid providers and push the Ministry of Justice for less bureaucracy and greater levels of trust. Community Law is not ‘competition’ to regular law firms – they perform a valid and valuable function in our society and sit on the margin between law and social service. Aside from a good source of referrals, they also provide essential training opportunities to young lawyers, participate in the process of making laws (through submissions to select committees) and play an important role in the maintenance of human rights.
Kia kaha Community Law!