These seminars were an outstanding success, and we thank the community services and agencies who attended and contributed. We will be holding more seminars in March, prior to changes taking place, where we will be discussing the Family Court Rules and providing a more detailed assessment of the outcomes of the reforms.
22nd & 23rd January, 2013
There are a lot of unknowns around these changes to the Family Court and the Care of Children Act. We have attempted to be objective and fair in our presentation of what we know and our assessment of risk. All criticism has been couched in constructive terms, in the knowledge that further information – when released by the Ministry of Justice – might clarify any gaps in knowledge.
Family Dispute Resolution Service
- Most people resolve their family disputes without going to Court or speaking to lawyers
- There is currently, and will continue to be, free Parenting-Through-Separation courses. Attendance will be a compulsory requirement before entering the Court system
- Currently funded mediation can only be accessed by filing a Court application: the new system puts mediation before any Court action
- This new mediation system is called ‘Family Dispute Resolution” (FDR)
- There will be up to three hours of ‘preparatory counselling’ when referred by an approved mediator, to help people get into a mind-set where they can best use the mediation service (FDR)
- Private-paying individuals (e.g. those not under the means-tested threshold) will pay for the cost of preparatory counselling, however the Ministry of Justice “recommend” that people do it.
- There is a user charge for FDR mediation but there is a means-tested grant available
- FDR can only go ahead if both parties agree
The FDR process can be loosely described as follows:
- assessment for risk (potential harm to children or participants, assessed by the mediator);
- assessment for suitability to participate (there will be exemptions to participation);
- both FDR and a Parenting Through Separation course (applicant only?) are mandatory (sans exemptions) to enter the Court process;
- there will be limited means-tested funding available for pre-FDR advice by a lawyer;
- FDR mediation is undertaken;
- there is also limited means-tested funding available for post-FDR advice by a lawyer;
- if the dispute is unresolved the parties may make an application to the Family Court.
Note that the funding for the legal advice (which is very limited in terms of lawyer time) can only be used once in a 12-month period. It’s unclear at this stage what the on-going the duty of lawyers are to clients funded in this way.
Changes to the Care of Children Act
First of all it's important to note that these changes don’t affect how the Court deals with:
- Protection orders
- Paternity matters
- Child, Youth and Family matters
- International child abduction cases
- Other less common proceedings (e.g. adoption, spousal maintenance, child support)
There is a focus in the legislation on participants self-representing – assisted by forms that applicants complete themselves (but pre-FDR means tested funding assistance means a lawyer can assist at this stage).
If, in the following instances:
- the mediator exempts the matter from FDR (during the assessment stage), or;
- there is not an agreement (after FDR finishes), or;
- the matter is urgent (e.g. when a parent or guardian has absconded with a child), or there are two or more applications under different pieces of legislation (such as COCA and Domestic Violence Act), or;
- parents seek that an agreement made at mediation is made into a Court order;
There are three different ‘tracks’ the applications can proceed through Court: simple, standard or without-notice:
Simple track is for people who reach agreement at FDR and want an Order made by consent, or where the Court application is undefended – it is intended these cases are dealt with by a Judge based on the paperwork and people are expected to represent themselves (no lawyers in Court) unless the Judge directs a hearing.
Standard track is the process that applies when people have not been able to reach agreement outside of Court. Applicants must have completed a Parenting Through Separation course within the two years prior to the application being made and have either completed the FDR process or have been excused from it. There will be an ‘issues conference’ with a Judge (lawyers aren’t involved – though a Lawyer for Child will attend if appointed at that stage) to assess the case. The Judge can direct a ‘settlement conference’ (lawyers only involved if allowed by the Judge), but if a Judge directs a hearing then lawyers will attend the hearing. Legal aid is only available where lawyers are permitted to attend Court. Where people are self-represented they may bring a support person in ‘some situations’ (not yet defined).
Without-notice track is similar to the existing process where if there are safety concerns or urgent situations you can be represented by a lawyer and might be eligible for legal aid, and:
- Judges have the discretion to switch cases between tracks at any time;
- Judges can refer litigants to Parenting Through Separation courses or FDR mediation (but parties must agree if they have attended these in the past 12 months);
- it is not going to be as easy to apply to vary or discharge orders as it is now. No variation within 2 years of a final Parenting Order unless by consent of all parties or there is “substantial change” of circumstances. Interim order might be harder to obtain because the Judge needs to be satisfied that an interim Parenting Orders is more likely to serve the child’s best interest than making a final order;
- Judges will be required to consider the cost of the litigation and whether the parties should contribute to those costs (e.g. Lawyer for the Child, specialist reports, etc.).
Note that matters filed before 31st March will continue as per normal, with legal aid in place if granted.
The new role of lawyers in the Family Court
There are some things that lawyers will be prohibited from doing:
- Accepting service for documents on behalf of clients
- Signing documents on behalf of a client
- Appearing in Court depending on whether the Judge has permitted a lawyer to be present (exception – lawyers can attend defended hearings)
However, (for a price, because legal aid won’t necessarily cover all of this) lawyers will still be able to:
- Draft documents on behalf of self-litigants
- Undertake negotiations outside of the FDR/Court process
- Attend Court with a client and wait outside, to provide advice