Families are complicated and it is a good idea to get proper advice, whether you are starting a relationship or at the end. Contact us or choose a topic below for more help.
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 and best interests of the children (‘paramountcy principle’), however sometimes mediators will permit discussion about other issues if it helps toward getting an agreement about the children. It is accessed through professional mediation organisations. Portia has partnered with Fair Way Resolution since 2014. Fair Way is a trusted provider of alternative dispute resolution services. If mediation is the appropriate course of action, your Portia lawyer will make a referral to Fair Way Resolution on your behalf.
The mediator will help participants identify the issues they wish to talk about. FDR is a prerequisite to filing an on-notice application under the Care of Children Act 2004 in the Family Court, although exemptions may be granted if there is a barrier to participation (e.g. family violence) or the other party refuses to attend. A judge may also direct parties to attend FDR after court proceedings have begun if they believe it will assist the parties to resolve some or all of their dispute. Call us to see how we can help connect you to the right mediation service.
You might be eligible for funding assistance. Government-funded FDR mediation is for 12 hours of the process beginning at the first point of contact between each person and their appointed mediator, or with the coach if you arrange a preparation for mediation session. Note this works differently from the 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). This might sound confusing (it is a bit) so please call us and let our friendly Legal Response Team help.
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.
The mediator will help participants identify the core issues they wish to talk about. These might include topics like where the child lives; drop-off times and places; what happens on special occasions, and; decisions about the child’s upbringing (e.g. which school the child will attend).
If agreement is reached then participants can use the parenting plan or 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 Family 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. Your lawyer or the Ministry of Justice can help assess whether a person is eligible for the subsidy.
Care of Children Act 2004 (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. 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 (called a limited retainer). If the Court directs lawyers to act (or if there are certain other circumstances) then the parties might be eligible for legal aid.
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 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.
The government-funded Family Legal Advice Service (FLAS) is provided on 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 (FDR) 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 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).
While we often refer to “family violence”, the main piece of legislation in the Family Court addressing violence between adults is the Family Violence Act 2018. Family violence includes physical, sexual, psycho-emotional and economic violence (e.g. stalking, harassment, financial abuse, economic abuse, controlling or manipulative behaviour, threats, belittling, etc.). Sometimes the term “family harm” is used by Police and other agencies.
When Police attend a family violence incident it is possible for them 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 ten 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 a court. This requires an application and an affidavit. The judge needs to know whether there is a domestic or close personal relationship, what violence has occurred and why the court order is necessary.
In non-urgent cases an application is filed , served on the other person – who has a chance to reply – and if the respondent chooses to “defend” the application a hearing is held for a judge to determine any disputed facts and decide if the order is necessary (this is called “on-notice”) .
In urgent cases an application and affidavit are filed and seen immediately by a judge (this is called “without-notice”) . 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, but not before a temporary protection order is granted. If the judge disagrees with the urgent application, and refuses to grant a temporary protection order, the person applying is given the chance to withdraw or to apply on-notice.
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 circumstances there is limited funding through the Family 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 contact supervisor.
Women’s Refuge crisis line: (0800) 733 843 Portia Legal Response Team: (0800) 993 223
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