You sometimes hear the words ‘litigation‘ and ‘hearing‘.
Litigation means to ask a Judge to make a decision about a disagreement. The Judge will issue something called an ‘order‘ – a legal decision that is binding on everybody. Essentially, the Judge is deciding on what the outcome is and you must do what the Judge says.
A hearing is the final in a number of court events that you will need to attend if pursuing litigation. In the Family Court the process roughly goes:
The litigation process through the Family Justice System can take up to two years and is very costly, very complex and very time-consuming, and because of this your lawyer might also talk to you about ‘Mediation‘ or ‘Alternative Dispute Resolution‘.
Most lawyers and mediators agree that it’s best for anyone heading into mediation to get some legal advice first.
Any family lawyer can provide such advice, but only certain lawyers are authorised by the Ministry of Justice to deliver the Family Legal Advice Service (FLAS) – a wholly-subsidised means tested and one-off grant of aid to consult a lawyer.
FLAS comes in two parts and is easy to access, but only accessible to people who qualify – visit this website to check your eligibility. If you are eligible then an authorised lawyer will be able to approve you for the service straight away.
FLAS1 covers the client’s rights and responsibilities in regards to their children and their legal options in the context of mediation. 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. FLAS funding is means-tested but unlike legal aid doesn’t take into account a partner’s income or a person’s assets. It is a grant that does not need to be repaid. Once mediation is complete there is a three-month stand-down to give the agreement a chance. Either of the parties may return to mediation after three months if there are any issues that can’t be resolved.
FLAS2 is not used so much since a law change but can be accessed if the parties want to record their mediated agreement in what is called a consent memorandum. This is an order made by the Court that is by agreement, so there doesn’t need to be a complicated Hearing.
Parenting Through Separation
Technically the Parenting Through Separation course is mandatory only if there is an Application to the Family Court, and only for the Applicant. However, many lawyers and Mediator recommend all parties complete the free Parenting Through Separation course as it helps instill an understanding of what the children are going through. Parties may be exempt 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.
Mediation
They may be exempted from attending Family Dispute Resolution 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 family violence by one of the people involved in the dispute, or; if the mediator has reasonable grounds for deciding that FDR is inappropriate.
Once mediation is complete there is a three-month stand-down to give the agreement a chance. Parties may return to mediation after three months if there are any issues that can’t be resolved.
Mediation is highly recommended by Portia as an inexpensive and friendly way to resolve parenting disputes out of Court. The Family Court should always be a place of last resort. Mediation might resolve all the issues, or part or… none. In any case, it makes sense to use the second part of the free funding to re-visit with a family lawyer to explain the implications of the outcome and advise on rights and responsibilities.
After Mediation
FLAS2 also covers completing Court-entry forms. This could be a Memorandum of Consent (if everything was agreed at mediation) or an application for a court order (if there are unresolved issues). If further advice or help filling out forms is required once the two parts of FLAS have been completed, then the individual will need to pay privately or seek help from a support worker, unless they are eligible to apply for legal aid.
As mentioned elsewhere on this page, 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, depending on their income and assets. In any case involving children and the Family Court it is important to remember that the child’s welfare and best interests are paramount.
There are only two ways an on-notice Application may be made to the Family Court under the Care of Children Act (CoCA). Either if the Applicant has completed the requirements of the out-of-Court FDR process and has also completed a Parenting Through Separation course in the past two years, or if the Applicant has been exempted from the FDR process.
In some instances there are matters that can be filed in Court that ‘skip’ the requirements of FDR: these are urgent or ‘without-notice‘ Applications.
Without-notice Applications are submitted to the Court when there are exceptional circumstances such as danger to a child or extreme hardship. Such applications are considered without the other party (the Respondent) having a chance to have their say. There are a number of rules governing without-notice Applications and it is best to take legal advice when drafting one.
Other Legislation
Applications for matters under other legislation that the Family Court deals with – Oranga Tamariki Act, Protection of Personal and Property Rights Act, Family Proceedings Act, Adoption Act and Family Violence Act (among others) – are made straight to court whether they are on-notice or without-notice. There is no out-of-court process, so legal aid is normally available for people who meet the requirements.
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