Family Justice System (Family Dispute Resolution)
Out-of-Court process for Care of Children Act
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. There is an online tool available to check eligibility. The application is quick as lawyers are authorised to approve applicants on the spot. Click here to find out more about FLAS. Click HERE for information on
Funding Eligibility and find out if you or your client are eligible for free legal advice. FLAS 1 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.ion
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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.
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 mediators 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 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. Learn more about Parenting Through Separation courses here. 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 domestic 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 Ebborn Law 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 FLAS 2 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. |
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In any case involving children and the Family Court it is important to remember that the
Child's Interests are Paramount Click HERE to find out more about the Paramountcy Principle |
Family Justice System on-notice applications
Family Court process for Care of Children Act
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There are only two ways an on-notice Application may be made to the Family Court under the Care of Children Act (CoCA).
Firstly, 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. Secondly, if the Applicant has been exempted from the FDR process. |
Lawyers are not permitted to make an on-notice CoCA Application, nor are they allowed to accept service of documents or appear in Court. The exception to this is either when a Judge has directed lawyers to act, or the case has been directed to a hearing (usually a Directions Conference).
Once lawyers are permitted to act then an application for legal aid may be made. |
Family Justice System without-notice and non-CoCA applications
Family Court process for urgent Care of Children Act and all applications for other Acts
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Urgent CoCA Matters
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 other |
- CYPF Act, PPPR Act, Family Proceedings Act, Adoption Act and Domestic 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 available for people who meet the requirements.
Applications may be made by individuals but Family Law is complex and legal advice is recommended. |
