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New Zealand Family Justice Reforms |
Last Updated: 25 May 2020
Although
all reasonable steps have been taken to ensure the accuracy of the information
contained in this document, the Ministry of
Justice disclaims any and all
responsibility for any inaccuracy, error, omission, or any other kind of
inadequacy, deficiency, or
flaw in, or in relation to, the information; and
fully excludes any and all liability of any kind to any person or entity that
chooses
to rely upon the information.
ISBN 978-0-478-32475-4
(online)
Published by the Ministry of Justice
January 2019 © Crown
Copyright
Ministry of Justice
The Justice Centre, 19 Aitken
Street
DX SX10088, Wellington,
New Zealand
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918 8800
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info@justice.govt.nz
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E ngā mana
E ngā reo
E ngā mate kua hinga
E ngā karangatanga maha
Ki ngā manu o te Rangi
Ki ngā Hua o Tangaroa
Ki ngā mau o te whenua
He taonga tuku iho
Mō tātou me ngā uri tamariki mokopuna
Mauri ki te Rangi!
Ora ki te whenua
Mauri Ora ki a tātou kātoa
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To the prestigious
To the languages
To the dead who have fallen
To the numerous callings
We acknowledge those who have flown here
We acknowledge those who are from the sea
We acknowledge the sustenance we obtain from the land
Gifts passed on from our forebears
For us and sustainment of future generations
Life principle enhancing to the heavens
Life to the land
Life principle enhancing to us all
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Nāu te rourou, nāku te rourou, ka ora ai te iwi.
With your basket, and our basket, people will flourish.
Foreword
The family justice system is facing significant challenges. This report highlights several critical issues and outlines suggestions for possible change.
In August 2018, the Independent Panel started its mahi to report on the 2014 changes to the family justice system. The first step was to find out how the 2014 changes have affected people who seek help to resolve disputes about parenting arrangements or guardianship matters.
The Panel asked people what was working well, what wasn’t and what changes were needed. Those responding could do so through online tools, including ‘Have your say’ and ‘Korero Mai’, written submissions and face-to-face meetings.
We tried, where possible, to visit people in their rohe. We’ve been to 14 cities and towns, held over 110 meetings and met several hundred people. We’ve received over 500 submissions.
We’ve spoken to mothers, fathers, grandparents and wider whānau. We have heard from some children and young people. To make sure we hear from more people, we have commissioned further research.
It has been a privilege and humbling experience to meet and hear from so many people who have shared deeply personal experiences with us. We acknowledge the mana of everyone who has taken part and the strength and courage needed to do so.
We’ve also spoken to judges, lawyers, mediators, professionals, and community groups and organisations. They have told us of the challenges they deal with daily.
The Children’s Issues Centre at Otago University shared with us its initial findings from the major research project it is undertaking, following the 2014 reforms, on how parents make arrangements for care of children post-separation. We will be receiving a further update from them to help our final report. We are grateful for their input.
We have published this paper so people can comment on the issues discussed and the changes suggested, before we finalise recommendations to the Minister of Justice in May. The final report will be strengthened by the responses we receive. People can contribute in several ways (see page 5). To meet the May deadline, submissions will close on Friday 1 March 2019.
We look forward to hearing from you.
Nā mātou noa, nā
Rosslyn Noonan
(Chair)
Chris Dellabarca
La-Verne King
Contents
We’d like to hear your views on our ideas for change. Your feedback will help us shape the Independent Panel’s final report to the Minister of Justice in May 2019.
How to have your say
This document sets out the Panel’s initial ideas for changes that could strengthen the Family Justice Services in New Zealand. Questions are listed throughout the document for your feedback.
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You can give your feedback online by completing the submission form
available at https://consultations.justice.govt.nz
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You can also write your own submission and email it to FamilyJusticeReforms@justice.govt.nz
or post it to:
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Family Justice Reforms
SX10088 Wellington 6011 |
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If you have any questions about this public consultation document or the
Independent Panel and its work, please contact FamilyJusticeReforms@justice.govt.nz
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Te Reo Māori and Easy Read versions of this document are available on the Family Court Rewrite webpage: https://www.justice.govt.nz/justice-sector-policy/key-initiatives/family-court-rewrite/
Closing date to make a submission
The closing date for all submissions is 5.00pm, Friday 1 March 2019. Because of our short timeframes, we cannot accept late submissions.
We want to hear from you
Background
Terms of reference
The Independent Panel was asked to consider the 2014 family justice reforms that relate to helping people resolve disputes about parenting arrangements or guardianship matters in the following areas:
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The Terms of Reference allow us to recommend further work on specific issues that we haven’t been able to explore sufficiently, or that are outside the Terms of Reference, but that could benefit from being considered in the context of our recommendations.
A copy of the Terms of Reference can be read here.
Changes to the family justice system in 2014
Changes made to the family justice system in 2014 – known as ‘the 2014 reforms’ – were meant to shift the emphasis away from in-court to out-of-court processes. The 2014 reform goals were to have a modern and accessible family justice system that:
The 2014 reforms changed the services and processes available to help people agree on the care and contact arrangements for children. Those changes can be sorted into the following:
Consultation
The Panel has travelled and held meetings throughout New Zealand, and received over 400 submissions. A detailed summary of submissions can be read here.
Strengthening family justice services
Case for change
The Family Court and related services were established in 1981 to reduce the harmful effects of parental conflict and adversarial legal processes on children, their parents and whānau.
The 2014 reforms introduced a system of ‘in-court’ and ‘out-of-court’ processes. To keep people out of court, the changes meant those who were unable to agree on arrangements for their children had to take part in a parenting programme and mediation before they could apply to the court, unless their situation was urgent.
The changes also severely limited parties’ access to legal advice and representation. The expectation was that, by requiring all but those who filed ‘without notice’ applications to first try out-of-court services, more people would be able to resolve their issues out of court, delays would be reduced and children’s wellbeing better secured.
The Panel agrees it is in the best interests of children if arrangements for their care and/or decisions about them can be decided without having to go to court, which is inherently adversarial.
Across New Zealand, parents, grandparents, caregivers, children and young people and their whānau told us about the difficulties they experienced in the Family Court and with related services. Community groups working with parents separating or in dispute over the care of their children gave details of the issues they deal with daily.
Many of the professionals we met or who made submissions (mediators, counsellors, lawyers, psychologists and judges) spoke of significant barriers to timely, fair, robust, long-lasting resolutions to those disputes. Early evaluations of the effect of the 2014 changes and current research confirm the validity of these concerns.
There are issues which are undermining the effectiveness of the Family Court and related services for separating parents and families in conflict. The critical aspects include;
The review has exposed a system that is siloed, and which has even greater delays than occurred before 2014.
The Family Court and related services display a number of systemic issues. Some are a feature of the wider justice system, others reflect challenges within New Zealand society generally.
The critical issues include:
Strengthened family justice services
The Family Court and related services provide crucial support to people facing family breakdown and who are in conflict about the care of their children. These services are required to focus on the safety and wellbeing of children caught up in those disputes. Ultimately, the Family Court has a responsibility to ensure children’s safety and wellbeing when they are making decisions about them.
The Panel was heartened by the constructive suggestions made by submitters and the level of agreement that emerged on important issues.
Korowai of the Family Justice Service
The Panel considers that the Family Court and related services should work in a joined-up way that is accessible and responsive to families’ different needs.
We envisage a structure that brings together the Family Court and a range of services. Named the Family Justice Service, it would form a korowai, a cloak for separating parents, caregivers, and whānau who need help making decisions about their children.
The korowai symbolises the empowering and protective roles of family justice. In a korowai, many muka (strands) are woven together. The muka represent uniqueness, diversity, interconnectedness and interdependence. The pona (knots) secure the threads. Together, they make up the korowai of the Family Justice Service
The korowai of the Family Justice Service is designed so people can access the right service, at the right time, in the right way, rather than having to follow an inflexible process.
Our proposed korowai of the Family Justice Service will:
Opportunities to strengthen the Family Justice Service
Many muka (strands) will make up the korowai of the Family Justice Service. The Service should be visible, informative, accessible, responsive, flexible and cohesive. It should encourage and support people to agree on decisions about their children and mokopuna at the earliest time and in the least adversarial way.
Within the korowai of the Family Justice Service, people will be able to access services through many different points – there will be ‘no wrong door’. Lawyers and community services will continue to assess people and refer them to the right services or to the Family Justice Service Coordinator at the Family Court.
When a court application is made without the parties involved having taken part in Parenting Through Separation or Family Dispute Resolution, they will, except in urgent cases, be referred to those services. In urgent cases, applications will be referred to a judge for immediate directions.
To make sure the principles of the Treaty of Waitangi are a part of the Family Justice Service, partnerships with iwi, hapū and community organisations could be formed and provision could be made for a mana voice in the Family Court. Tikanga Māori would be included in processes and procedures.
These and other suggestions, along with issues we are still considering, are
discussed in this consultation paper.
Focus on children
The welfare and best interests of the child are the first and paramount consideration in decision making under the Care of Children Act 2004. These are guiding principles. The law puts a child’s safety first and requires that children are given reasonable opportunities to say what their views are and for their views to be taken into account.
What we’ve learnt
Children should be at the heart of the Family Justice Service. We heard there is insufficient focus on the welfare and best interests of children. Issues that emerged include:
Changes we’re considering
The Panel considers a joined-up Family Justice Service will deliver better outcomes for children and their parents, caregivers and whānau.
We are proposing the development of an integrated Family Justice Service that:
To strengthen the focus on children in the Family Justice Service, we are also proposing improvements to make sure:
Children’s safety and participation are critical issues. We consider that the law needs to be changed to strengthen the assessment of a child’s safety, and further research is needed in the area of children’s participation.
Proposals
Questions
Te Ao Māori in the Family Court
The Terms of Reference asked the Panel to focus on any differential (or particular) effects on Māori children when considering whether in-court and out-of-court processes allow decisions that are consistent with the welfare and best interests of the child.
What we’ve learnt
“...empower Māori to participate in a Pākehā system in a Māori way”
‒ Lawyers
The over-representation of Māori in prisons and Māori children in state care is widely known. Māori interest in a well-run and culturally appropriate Family Justice Service has, however, been overlooked. We consider more could and should be done to empower Māori to resolve family disputes in a culturally safe and appropriate way.
During our consultation, we heard how monocultural the family justice system is. Although we spoke to community members and professionals who provide tikanga-based services (for example, tikanga-based dispute resolution), these are an exception.
Māori whānau, support workers and lawyers told us that the Family Court can be a foreign, isolating and intimidating experience. The way some family justice processes operate does not align with tikanga Māori or Māori views of whānau, particularly the role grandparents and extended whānau play in caring for children and mokopuna.
What we’re considering
We are considering how the Family Justice Service could change so it responds better to tamariki and Māori whānau. There are opportunities for the system to be improved for whānau and for family justice professionals to improve their capability to better advise and support whānau through family disputes. Examples are:
We are also considering whether any legislative or operational measures should be supported by a strategic framework that creates objectives and accountability for those involved. For example, through obligations on the Ministry of Justice, or the Government, to improve family justice outcomes for Māori, or through strategic relationships between the Ministry and iwi, hapū or Māori organisations.
We would like to hear your views on what a strategic framework could look like and how the Family Justice Service could be improved by and for Māori.
Questions
Quality, accessible information
Although the Ministry of Justice provides information online, through an 0800 number and in pamphlet form, New Zealanders generally do not know a lot about the family justice system. Many people are not aware of what services are available and how to access them.
Knowledge is crucial. By having an awareness and understanding of the Family Justice Service, and how to use it, people can effectively engage with it.
What we’ve learnt
“It was highly chaotic. I felt I was sent all over the place. Even internet searches give different results”
- Parent
- During consultation, people told us:
- current information resources are difficult to follow
- information is provided in formats that not everyone can access (for example, people with disabilities, low level literacy, limited English, no access to technology or living in remote locations)
- little information is available for children and it is not given in a way that lets them access it independently.
Changes we’re considering
We suggest the Ministry of Justice develops and puts in place an information strategy to establish a cohesive and consistent set of resources in formats that meet all needs, along with a system to review them regularly.
In developing such a strategy, consideration should be given to building an engaging, interactive standalone website. The site should include a section especially for children, with age-appropriate content that children can access independently. This could include games, animated videos, downloadable apps and other engaging activities. Children would be able to access this information on their own, for example, at school, without relying on a parent to give it to them.
The information strategy should make sure consistent information is given in formats that are accessible to speakers of other languages, people with disabilities or low literacy, people without access to technology and those living in remote areas.
The strategy should help support the joining up of the Family Justice Service by including information specifically for service providers, community organisations, lawyers and family justice professionals.
We suggest the Ministry of Justice also develops a public awareness campaign to improve New Zealanders’ understanding of the Family Justice Service.
Proposals
Questions
Counselling and therapeutic intervention
The 2014 reforms removed free pre-court counselling. Now, a judge can direct people to see a counsellor, but only if they’re involved in a court case about a parenting order or a dispute about guardianship. This counselling is available at the end of proceedings and aims to improve the relationship between parties to a dispute and/or help make the court’s orders work.
What we’ve learnt
“It provided meaningful self-awareness and insight along with tools to enhance communication, problem solving and conflict resolution”
- Professional Submitter
- We have heard that the removal of counselling has had a significant and negative effect. Separation is one of the most stressful times in a parent’s life. Parents are often feeling strong emotions and they need time to deal with these. Not being able to do so can mean parents struggle to think about their children’s needs, and this stops them from focusing constructively on future decisions about their children.
- We heard a country-wide request for counselling to be made available once again.
Changes we’re considering
We consider there is a role for counselling in post-separation issues.
It would be different from the counselling available before 2014. It would not be the place for resolving parenting disputes; that’s the role of Family Dispute Resolution (FDR) or, when needed, the Family Court. It would not be available to help couples reconcile. Instead, counselling would help parents deal with the issues that are stopping them from resolving disputes about their children or that may lead to them getting into further disputes in the future.
We are considering whether counselling should be available early in engagement with the Family Justice Service, for example, on referral from Parenting Through Separation (PTS) or FDR providers.
We are also considering a proposal that three types of counselling be made available through the Family Justice Service, fully funded by the state. In each case, its use would be targeted, available for a limited number of sessions and delivered by accredited counsellors. The three types of counselling would be as follows.
As noted, three options would be available for people to access counselling. They could be referred by a PTS or FDR provider, where the provider considers that counselling will help the person to take part effectively in PTS or FDR. People could also be referred to the first type of counselling by the new Family Justice Service Coordinator (discussed on page 32), either before or after they file an application with the court.
A judge could direct parties to attend specialist counselling providers (the second and third types described above). We think this counselling should have court oversight. People would be expected to attend, and they would also waive (or give up) confidentiality about progress made and the outcome. Counsellors would report to the court on these matters within a set timeframe.
Some submitters said counselling should be available to children. While children may be involved in family therapy, the focus of the counselling we propose is to help parents resolve parenting disputes and improve their parenting relationship and behaviours. We think this should be the government’s main focus and will also be of greatest benefit to children.
We are not proposing that counselling be compulsory in the sense that a person would be stopped from completing any step if they did not attend. Instead, the expectation will be that, if people are referred, they will go to counselling. Failure to go to counselling may be taken into account by a judge when making parenting orders or considering whether to order costs.
Proposals
Questions
Parenting Through Separation
Parenting Through Separation (PTS) is highly regarded. Submitters felt it helped them to focus on their children and the effects of separation. Submitters told us how valuable it was to hear about other people’s experiences and to share their own.
What we’ve learnt
“engaging with PTS, parents and caregivers build their knowledge and understanding of the impact that separation has on both themselves, and their child or children, and the wider family or whānau”
- PTS provider
- Professional Submitter
- PTS can be hard to access, particularly for those with full-time care of children and those living in remote areas. Wait times add to frustration. Some submitters said that language, culture and disability can stop people from accessing and taking part in PTS. There is not enough monitoring done on how well these needs are met across the multiple contracted providers.
- We heard that PTS is not relevant for everyone. PTS is designed for separating parents, but attendance is compulsory for all parties wishing to file an on notice application to the court, including grandparents, other whānau and non-traditional parental relationships (such as parents who’ve never been in a relationship).
Changes we’re considering
We believe PTS is an important part of the Family Justice Service. If separating parents intend to engage in Family Dispute Resolution or make an application to the Court, there should be an expectation that they will attend PTS. The court should be able to refer people to PTS at the early stage of court proceedings.
We consider that, while PTS is a helpful programme overall, many issues need to be addressed. More information and a thorough analysis are needed of the issues outlined above. We’re considering a recommendation that the Ministry of Justice undertakes a review of PTS to:
Proposals
Questions
Family Dispute Resolution
The 2014 reforms set up Family Dispute Resolution (FDR). It was designed to help separating parents or other whānau to reach agreement about the care of their children or mokopuna. It was meant to be quicker, cheaper and less stressful than going to court. Research suggests for those parties who have taken part in FDR, it can be a quick, affordable and effective process.
What we’ve learnt
We heard that the significant issues with FDR have prevented it from working as it was supposed to. For example:
“The ease with which ‘without notice’ applications are approved undermines and devalues the FDR process. By-passing FDR...undermines the principle of encouraging parents to take responsibility and to cooperate while making decisions in the best interest of their children.”
- Professional Submitter
- FDR is hard to access
We’ve heard differing views on whether FDR should be compulsory or voluntary. The research shows that a lot of cases that go to mediation reach partial or total agreement. Some submitters told us they felt forced into mediation. The compulsory nature of it stopped people from taking part in a meaningful way. Given the participation and exemption rates, FDR could be described as compulsory in name only.
Changes we’re considering
We want to promote a higher level of participation in FDR. We’re considering ways to make sure FDR is available at the most appropriate time for parents, caregivers and their whānau, whether or not an application has been made to the court.
Where an application has been made to the court, but FDR has not been undertaken, we’re considering whether an automatic referral should be made to FDR unless good reasons are given not to (a rebuttable presumption).
We’re also considering the suggestion that a process for court referrals to FDR should be clearly outlined in the Family Court Rules 2002 that address the ability of the court to make direct referrals, timeframes and how outcomes are reported back to the court.
We believe that ‘preparation for mediation’ should remain. This is where parents get a mix of support and coaching to help them think clearly about what arrangements are best for their children ahead of mediation.
Submitters also highlighted several other issues, including the confidentiality of the process, enforceability of mediated agreements, the sustainability of the FDR workforce and the possibility of extending FDR to relationship property matters. These, and other issues, will be considered in the Panel’s final report.
The funding of FDR is addressed on page 39.
Proposals
Questions
See page 40 for questions on costs of FDR
Legal advice and representation
Before 2014, parties to proceedings in the Family Court could be legally represented at all stages. That changed in 2014, when lawyers were removed from the early stages of on notice proceedings. This meant legal aid wasn’t available to a person who couldn’t afford a lawyer. Instead, a Family Legal Advice Service (FLAS) was established to give people initial information and advice on the out-of-court processes (FLAS 1) and limited help in completing court applications (FLAS 2).
Separating parents often ask for advice from lawyers as a first step, and this can help to resolve issues early in the process.
What we’ve learnt
We’ve heard that the removal of legal representation has been a critical change. As a result:
“Access to justice requires legal representation for parties and children throughout proceedings. Legal representation reduces Judges’ work-loads, and Court time. It also ensures access to justice, and better outcomes for parties and children”
- Lawyer
people’s confusion and helplessness is made worse by the court forms they must use when applying to the court
inequities exist between those who have access to legal advice and those who do not
FLAS help is short term and limited
without notice applications have increased
the workload of judges and court staff has increased from helping unrepresented parties
delays and length of hearing time have increased
communities and cultures that prioritise respect for authority figures and feel uncomfortable directly addressing or disagreeing with a judge are disadvantaged
denying access to legal representation limits access to justice and undermines human rights.
Ministry-funded independent research in 2017 found that over 80 per cent of applicants interviewed listed the main reason for making a without notice application was they wanted a lawyer in court.
Changes we’re considering
We intend to recommend that parties’ right to have a lawyer represent them at all stages of Care of Children Act 2004 proceedings is reinstated, with legal aid funding available to those who qualify for it.
What we’re still thinking about
We’re still considering how legal aid and FLAS will fit into a system where legal representation is reinstated.
FLAS has benefits that are not available under legal aid. FLAS is income tested only, not asset tested, and does not have to be paid back.
Many submitters were not aware that FLAS existed. Those who did know about it often found it hard to find a provider. They also found it frustrating because approved providers were frequently unavailable, not able to be contacted or had stopped providing FLAS.
Many submitters were disappointed by the amount of help and advice FLAS offered, often feeling more was needed. People felt confused that FLAS providers could offer legal advice but couldn’t act on their behalf as a lawyer usually would.
Legal aid is not currently available for people who only want advice and help and who may not want to make an application to the court. Two options are suggested for change:
Having wider access to legal advice is efficient, because lawyers can resolve matters in a quick way, out of court. Keeping FLAS may allow more people to have access to funded legal advice than would otherwise be eligible for it under legal aid. Also, a FLAS lawyer could continue to act for a party, if matters weren’t resolved.
Proposal
Questions
Case tracks and conferences
The 2014 reforms introduced three case tracks and five optional judicial conferences, which were meant to progress cases to timely resolution.
What we’ve learnt
“The track system is far too complicated. The system is clogged partly because the tracks are hard to traverse”
- Professional submitter
- During our consultation, we heard that there are too many case tracks and too many conferences – the system is complicated, hard to navigate, not complied with and adds to delays. The increase in without notice applications has also affected the usefulness of the case tracks. Many submitters said the current court forms are complicated, not user-friendly or don’t give the court the information it needs to make decisions.
Changes we’re considering
We’re considering whether the system could be reduced to two case tracks:
The number of conferences could be reduced. We think it’s important each conference has a clear purpose, to stop cases dragging through the court in a series of successive adjournments.
We’re considering whether settlement conferences should be retained. However, more thought is needed on whether there is an ideal time in the process for these conferences, for example, following receipt of a psychologist’s report, and how these conferences ‘fit’ with judicial decisions to direct parties to FDR.
We believe greater use of telephone and video conferencing will reduce delay and waiting times.
Proposals
Questions
Without notice applications
Without notice applications are a fundamental process in the Family Court, because they give immediate relief in urgent cases. Before the 2014 reforms, 30 per cent of all Care of Children Act 2004 applications were made on a without notice basis. That number rose quickly after the 2014 reforms and has remained at around 70 per cent. Research tells us the main reason for applying without notice is so a party can have a lawyer represent them. Where a lawyer acts, a party is eligible to apply for legal aid.
What we’ve learnt
“The rate at which applications are now made under the ‘without-notice’ pathway highlights the issues with the standard pathway and the implications of restrictions to legal representation on victims’ selection of the pathway”
- Social service provider
- the large increase in the amount of time devoted to the eDuty platform to deal with these applications and the resulting pressure placed on the registry and judges
Changes we’re considering
Questions
Triaging
“By providing a number of avenues for families to use when they need assistance, and by triaging each parent who applies for assistance, we can make better use of resources and, we can prevent Parties who do not need an In-Court experience from being subjected to it”
- Professional submitter
Triaging is where the most appropriate pathway is identified for each application filed with the Family Court. It allows early decisions on whether a case might best be progressed in the community by referral to Parenting Through Separation (PTS), Family Dispute Resolution (FDR) or other services. For complex cases, it allows early referral to a judge for directions, including possible referral for targeted therapeutic or other interventions.
What we’ve learnt
We heard that the lack of effective or meaningful triaging has led to delays and undermined the court’s ability to respond to complex cases in a child-appropriate timeframe. This has led to entrenchment of parties’ positions and negative outcomes for children.
Changes we’re considering
We consider there needs to be an effective triage system.
Many community organisations, service providers (for example, FDR providers) and lawyers who see parents at the start of the process provide effective assessment or screening of parents. This is important, and we think it should continue. It may mean parents are referred to agencies in the community in the first instance (which we support). It may also mean, in appropriate circumstances, they are referred to the Family Court. This referral will be formally triaged by the Family Justice Service Coordinator.
During our consultation, many people suggested a ‘one-stop-shop’ approach to help with triaging, early identification of issues and early intervention. Many people currently go to lawyers, family members or the Family Court for advice. Others get help from community services.
We consider there should continue to be multiple entry points to the Family Justice Service; there should be ‘no wrong door’. People should continue to access help as they do now. Lawyers, PTS and FDR providers and community services will continue to screen people and refer them to appropriate services or the Family Court.
We think more needs to be done to support community organisations to provide screening and access to support and services in a joined-up way in their communities. We heard many times during our consultation that the Family Justice Service needs to promote joined-up service delivery, reduce conflict and be accessible for families.
The Family Justice Service Coordinator will carry out triaging in the Family Court (see page 32).
Proposal
Questions
Complex cases
The Panel has heard that the complexity of some cases makes their resolution difficult.
What we’ve learnt
“When a matter is declared ‘complex’ and case managed by a judge it is, generally, beneficial for the parties because the parties know the Judge knows all the details of their case. It feels as though the system has less churn and that more care is being taken”
- Lawyer
The main features of complex cases are:
Although the number of these cases is small, they take up a disproportionate amount of time. They’re difficult, time-consuming and need early and effective intervention.
We’ve heard there is no one case management response to these cases. We’ve heard some cases need access to therapeutic interventions or services provided by professionals outside of court. It has been suggested that, when this happens, parties should waive confidentiality so the counsellor or psychologist can report directly to the judge, and/or that a party or parties in a high-conflict case should be able to be psychologically assessed (there’s no power to do this at present).
Changes we’re considering
Complex cases need early and effective intervention. We’re considering introducing a separate process to better manage these cases. This would include:
Triaging is discussed on page 26. Counselling and therapeutic intervention are discussed on page 16.
Proposals
Questions
Cultural information in court
Two provisions in the Care of Children Act 2004 allow the court to receive information about a child’s cultural background. Cultural reports are an independent report requested by a judge to help inform their decision. Section 136 of the Act allows a person, at the request of a party to proceedings, to speak to the court about a child’s cultural background.
What we’ve learnt
“Cultural reports are good, but they feel like an add on. They get plonked into a system where it doesn’t fit (it feels like palliative care). Applaud the judges who seek cultural reports but it’s still within the confines of a Western system”
- Cultural report writer
Historically, both provisions have been underused. This is despite Aotearoa New Zealand’s increasingly diverse population and the need for the court to understand and respond appropriately to a child’s cultural needs. Data shows that, for guardianship proceedings where ethnicity is recorded, around 22 per cent of parties are Māori, 5 per cent are Pasifika and 4 per cent are Asian. Some submitters also noted the young demographic profile of Pasifika and migrant communities. Pasifika have the highest proportion of children, compared with other ethnic groups.
Cultural reports are hardly ever requested in the Family Court. The Family Court Bench has identified that the major obstacles to cultural reports are the small pool of report writers and the lack of framework around the provision of the reports. Judges are reluctant to ask for a report if no one can provide it.
During our consultation, we heard from parents, whānau and community members who were concerned that the court did not fully understand their child’s cultural background. They weren’t sure how to bring this information to the court’s attention in a meaningful and culturally safe way.
Changes we’re considering
We consider that parties should be better supported and empowered to bring relevant cultural information to the court’s attention. The provision to do this is in section 136 of the Act, however, many people don’t know about it and it’s hardly ever used. Appropriate information and guidance could be developed to help parties, lawyers, whānau and community members use this provision. An opportunity also exists to strengthen the provision so that the court must hear from a person called under section 136 except if special reasons are given not to.
If the court needs independent, expert information about a child’s cultural background, it should be able to ask for a cultural report with confidence that a process is in place for the delivery of that report. We propose that the Ministry of Justice does further work to establish what that process could look like, and what training and professional development is necessary to make sure cultural report writers are available to the court.
This work should also consider whether the threshold for requesting a cultural report is suitable. At present, a cultural report can only be requested if the court is satisfied the report is ‘essential’ to help decide the application. A lower threshold, possibly with the ability for parties or lawyers to ask the court to obtain a cultural report, may increase their use.
Proposals
What we’re still thinking about
Questions
A “new” role – Family Justice Service Coordinator
The role and responsibilities of the Family Court Coordinator have changed over time. The core functions, including providing advice, linking people to lawyers and services in the community and referring matters to a judge for urgent consideration have gradually reduced, and the role is now mainly administrative.
What we’ve learnt
The gradual shrinking of the Family Court Coordinator’s role means people have no one person to go for information, advice and connection to services.
The overwhelming view from submitters who worked in the Family Court and from community services is that a significant breakdown and disconnection has happened in the relationship between the Family Court and the organisations that come into contact with parental separation in the wider community. All expressed regret about this and felt there is a need for an integrated or seamless relationship between them.
Changes we’re considering
We’re considering establishing a new role of Family Justice Service Coordinator (FJSC) at a senior level within the Family Court.
The FJSC will have a crucial role as the link between the community and Family Court. The FJSC will establish and maintain links with Parenting Through Separation (PTS) and Family Dispute Resolution (FDR) providers and other community services.
People will be able to go to the FJSC for information and guidance without making an application to the court. The FJSC will be able to refer parties to PTS, FDR, legal advice or community services as a first step.
The FJSC will be responsible for triaging all applications to the Family Court (see the Triage section on page 26). On notice applications that need urgent judicial attention can be referred directly to a judge for directions. Non-urgent applications are likely to be referred to PTS or FDR services or for legal advice.
The FJSC’s role should be established in law.
Proposals
Questions
A “new” role ‑– senior Family Court registrar
One of the aims of the 2014 reforms was to reduce delay in the system. Since the reforms, cases before the court have become more complex and demands on judges and registry staff have increased. Delays have also increased.
What we’ve learnt
There are significant delays in the Family Court and cases are not being dealt with in child-appropriate timeframes. Submitters told us that judges are spending more time than in the past on administrative tasks, which can create delays that can increase conflict between the parties.
Registrars in the Family Court already have a wide range of powers available to them (a registrar, for example, can legally deal with most interlocutory procedural matters) although many are not used in practice.
Changes we’re considering
We’re considering establishing the position of senior Family Court registrar (SFCR), to reduce the hours judges spend on administrative matters and to increase judicial sitting time. The Family Court Amendment Act 2008 created the role of SFCR, but the provisions were never brought into force and were later repealed. This position wouldn’t have to be established in every registry, because the SFCRs could operate electronically (such as the eDuty process for judges) or travel to other registries as required. SFCRs shouldn’t be limited to acting in Care of Children Act 2004 matters, but they should be able to use their full range of powers across all Family Court proceedings.
We suggest that the law should set out the jurisdiction and powers of SFCRs. They could include: interlocutory matters; applications made without notice; pre-hearing conferences; uncontested applications; applications for leave; matters that are consented to by all parties; confirmation of orders made overseas; the holding of inquiries; and the enforcement of orders and directions.
Regulations would have to be made to specify the kinds of orders and directions an SFCR could make in family proceedings.
Proposal
Questions
Lawyer for Child
Before the 2014 reforms, the Family Court was required to appoint a lawyer for child unless it was ‘satisfied the appointment would serve no useful purpose’. The 2014 reforms changed the criteria so a lawyer for child was only to be appointed when there were concerns for the child’s safety or wellbeing and the court considered the appointment necessary.
What we’ve learnt
Some submitters reported being satisfied with the role of lawyer for child and their ability to represent the child’s views, welfare and best interests. Others raised a number of issues, including:
Changes we’re considering
Proposals
Questions
Psychological reports
The 2014 reforms made changes to when a specialist report can be asked for and what they should cover. Now, a report from a specialist can only be ordered by a judge when it’s essential to decide a court case and the case won’t be unduly delayed by getting one.
A party may ask the court for permission to get a ‘second opinion (critique report)’ in special circumstances. A judge may agree that a report writer’s notes and other material can be shared with the party’s psychologist who is completing the second opinion.
What we’ve learnt
While some submitters reported being satisfied with the information provided by psychological reports, others raised issues with the process. These issues included delays in obtaining reports, concerns about bias and the intrusive nature of the process, and a misunderstanding of the report writer’s role.
Our consultations have identified the following issues:
“The biggest problem is timeliness”
- Parent
difficulties with recruitment and retention of suitably qualified and experienced psychologists
effects of multiple complaints procedures against psychologists
lack of professional pathways into Family Court work
confusion about the definition of second opinion reports and whether these are the same or different from critique reports
lack of process for second opinions (critique reports), including information from the report writer’s notes that is released to the critique report writers
reports being obtained too late in the court process.
While overcoming these issues will help to improve the availability of psychological report writers, it’s worth noting that New Zealand currently has a shortage of psychologists (clinical psychologists are on Immigration New Zealand’s Long Term Skill Shortage List).
Changes we’re considering
We acknowledge the value that psychological reports bring to the Family Court, and we’re aware this work has limited appeal to psychologists. The shortage of psychologists is a complex problem that likely needs addressing from many angles. We consider that, within its responsibilities for the Family Justice Service, the Ministry of Justice should look at measures to improve recruitment and retention of more psychological report writers.
Anecdotally, critique reports are more valuable when the writer is appropriately qualified and experienced in Family Court work. We therefore consider that critique report writers should be chosen from the court list of approved specialist report writers.
Proposals
Questions
Costs
The 2014 reforms shifted away from a state-funded family court system to one where parties contribute to the cost of resolving disputes about children. The main changes were:
What we’ve learnt
“Some families are struggling with day to day stuff and can't afford it”
- Parent
CCOs create financial hardship, which often increases already significant legal costs
judges have only made a CCO in around 15 per cent of cases where they could be made
CCOs are made inconsistently around the country
CCOs are administratively burdensome and rates of recovery are low
CCOs are made after the court case is closed, and delays often happen in their processing, which causes upset for people who have had their dispute determined.
Proposals
What we’re still thinking about
Questions
Other matters
Other significant issues, some pre-dating 2014, others arising since, have negatively affected the implementation and administration of the current family justice system. These include:
These matters need further consideration and will be covered in our final report.
Next steps
The closing date for submissions is 5.00pm, Friday 1 March 2019. Because of our short timeframes, late submissions will not be accepted.
The Panel will use your submissions to inform its final report, which will include recommendations for change, to the Minister of Justice. This report is due to be delivered by the end of May 2019.
Questions
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Important information about your submission
What happens to your submission
Your submission will only be used by the Independent Panel for the purpose of considering the 2014 family justice reforms. It won’t be shared with government agencies other than the Ministry of Justice (which is providing administrative support for the review).
Your submission will become official information. This means the Ministry may be required to release all or part of the information in your submission in response to a request under the Official Information Act 1982. The Ministry may, however, withhold all or parts of your submission if it’s necessary to protect your privacy or if it has been supplied subject to a duty of confidence. Please tell us if you don’t want all or specific parts of your submission released, and the reasons why.
Court information and information about third parties
Please don’t share documents about Family Court cases you’ve been involved in (such as affidavits) or any specific details about your case (such as case numbers). This will help protect the privacy of other people who were involved, such as your children and whānau. It will also make sure your submission does not breach the provisions of the Family Court Act 1980, which make it an offence to publish information about young or vulnerable people without the permission of the court.
Please don’t share names or any other information that could identify any other person, including children and whānau. This is out of respect for their privacy.
Privacy
Here’s a link to the Ministry’s privacy policy: https://consultations.justice.govt.nz/privacy_policy.
Collecting personal information
The Ministry only collects personal information that you choose to give it while using the consultation website: for example, your email address. You can submit anonymously.
Sharing your information
The Ministry does not give information about you to anyone else, unless one of the following applies:
Access to personal information the Ministry holds about you
You can ask the Ministry to give you any information that it holds about you, and you can make any changes to that information. Contact the Ministry’s Privacy Officer:
Demographics
We have some final questions we’d like you to complete. Answering these questions is voluntary, but if you do, it helps us to understand who has engaged in the response to this document.
If you’re a user of the Family Justice Service
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D1
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If you have used the Family Justice Service, what particular services did
you use or come into contact with? Tick all that apply.
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◻ Parenting Through Separation |
◻ Family Legal Advice Service |
◻ Family Dispute Resolution |
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◻ Family Court |
◻ Lawyer for the child |
◻ Your lawyer |
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◻ Specialist report writer |
◻ Counsellor |
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◻ Other (please specify): _____________________ |
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D2
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What was your relationship to the child or children who were the subject of
the family dispute?
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◻ Parent |
◻ Guardian |
◻ Grandparent |
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◻ Whānau/family |
◻ Other (please specify): _____________________ |
If you’re a professional in the Family Justice Service
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D3
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If you work in the Family Justice Service, what is your role? Tick all
that apply.
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◻ Parenting Through Separation |
◻ Family Legal Advice Service |
◻ Family Dispute Resolution |
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◻ Specialist report writer |
◻ Lawyer for the child |
◻ Lawyer for parties |
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◻ Counsellor |
◻ Family Court (eg, judge, registrar, court coordinator) |
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◻ Other (please describe): _____________________ |
Questions about you
You don’t have to answer these questions, but it’s useful if
you do because this helps us better understand the information
we receive. You
may choose to answer all or some of these questions.
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D4
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Is this an individual submission or a submission by a group or
organisation?
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◻ Individual |
◻ Organisation (please specify): ____________________ |
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D5
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Age:
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◻ Under 16 |
◻ 16–24 |
◻ 25–34 |
◻ 35–44 |
◻ 45–59 |
◻ 60+ |
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D6
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Gender:
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◻ Male |
◻ Female |
◻ X (gender diverse) |
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D7
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Where do you live?
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◻ Northland |
◻ Auckland |
◻ Waikato |
◻ Bay of Plenty |
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◻ Gisborne |
◻ Hawke’s Bay |
◻ Taranaki |
◻ Manawatu–Wanganui |
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◻ Wellington |
◻ Tasman |
◻ Nelson |
◻ Marlborough |
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◻ West Coast |
◻ Canterbury |
◻ Otago |
◻ Southland |
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D8
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Ethnicity (tick all that apply)
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◻ New Zealand European |
◻ Māori |
◻ Pacific peoples |
◻ Asian |
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◻ Middle Eastern |
◻ African |
◻ Latin American |
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◻ Other (please specify): ____________________ |
Glossary
Care of Children Act 2004
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The Care of Children Act 2004 is the main law relating to the guardianship
and care of children. It came into force on 1 July 2005
and replaced the Guardianship
Act 1968.
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case tracks
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Case tracks determine what processes or steps the case will follow.
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conference
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A meeting between parties, their lawyers and the judge to discuss aspects
of the case. There are different types of conferences including
settlement
conferences, issues conferences and pre-hearing conferences.
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contact arrangements
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Rights of a person who doesn’t have day-to-day care of a child to
spend time with the child.
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cost contribution order (CCO)
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A Family Court judge can order an applicant or respondent to Family Court
proceedings to contribute to the cost of providing a lawyer
for the child,
lawyer to assist and specialist reports.
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costs
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A court can require a party to pay some of the costs of the proceedings
including the other party’s legal costs.
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court order
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A formal direction from the court requiring a person to do or not do
certain things.
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direction
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An order made by a judge in relation to the conduct of a proceeding.
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eligible
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Allowed.
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Family Court
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A division of the District Court that was established under the Family
Court Act 1980 as a place where people living in New Zealand
could receive help
with family problems.
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Family Dispute Resolution (FDR)
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An out-of-court service provided by a Family Dispute Resolution provider to
help parties to a family dispute resolve the dispute without
having to pursue
court proceedings; and making sure that the parties’ first and most
important consideration in reaching a
resolution is the welfare and best
interests of their children.
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Family Legal Advice Service (FLAS)
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This service offers initial advice and information for parties in dispute
over arrangements involving care of their children. The
service is only
available for people who meet the income eligibility test.
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guardian (of a child)
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Being a guardian of a child means having all duties, powers, rights and
responsibilities that a parent has in bringing up the child.
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hearing
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The part of a legal proceeding where the parties give evidence and
submissions to the court and the judge may make a decision.
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interlocutory
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Matters that are dealt with after an application is made but before a
hearing.
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jurisdiction
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The authority to make legal decisions and judgments.
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lawyer for the child
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A lawyer appointed by the court to represent a child involved in, or
affected by, proceedings in the Family Court.
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legal aid
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Government funding to pay for legal help for people who cannot afford a
lawyer.
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mahi
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To work or do.
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make an application
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Ask the court to make a decision.
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mediation
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A process where the parties, with external help, create a safe environment
where they can address their issues and come up with agreements.
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mediator
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A dispute resolution practitioner who helps the parties toward their own
resolution in a mediation but does not decide the outcome.
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mokopuna
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Grandchild, grandchildren.
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on notice
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An application that is served on the other person and they will be given
the chance to respond to the application before the court
makes a
decision.
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parenting order
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An order made by the Family Court that says who is responsible for
day-to-day care of a child, and when and how someone else important
in the
child's life can have contact with them. Parenting orders can be enforced just
like any other order of the Court.
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Parenting Through Separation (PTS)
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A free information programme that helps separating parents understand the
effect of separation on their children.
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party (or parties)
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People involved in a court case, such as the applicants, appellants or
respondents (who are generally called ‘parties’).
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proceeding
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A case being considered by a court.
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rebuttable presumption
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A presumption that something is true unless evidence is provided that shows
that it is not.
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rohe
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Boundary, district, region, territory or area of land.
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settlement conference
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Refers to a meeting between parties and the Judge who will try to help the
parties to reach agreement. At a settlement conference,
a Judge can only make
orders with the agreement of the parties.
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specialist report
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A cultural report, or a report from a psychiatrist, psychologist or other
medical professional.
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tamariki
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Children.
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Terms of Reference
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Instructions given to someone when they’re asked to consider or
investigate a particular subject, telling them what they must
cover and what
they can ignore
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whānau
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Extended family or family group.
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without notice
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An application that is not served on the person to be affected by it (the
respondent) and therefore they do not have the opportunity
to have a say before
a judge makes an interim (temporary) order.
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MOJ0631.10_JAN19
NZLII:
Copyright Policy
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Disclaimers
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Privacy Policy
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Feedback
URL: http://www.nzlii.org/nz/other/lawreform/NZFamJustRef/2019/2.html