More Family Court changes that could affect YOU

Following up on the earlier articles on the Family Court Reforms as part of its plan to reform Family Court procedure, the National Government is proposing to remove interim Parenting Orders under the Care of Children Act 2004. This would mean that all Parenting Orders made under that Act are final Parenting Orders.

Currently, the Family Court is empowered to make interim Orders which last for one year. After the one-year period expires, the Order lapses unless a party involved in the proceedings makes the Order final. This allows time for both parties and the Court to ensure that arrangements are both safe and appropriate for the children.

The Government also proposes that no party may file any new application within two years of a final Order being made unless there is a material change to the children’s circumstances. The Care of Children Act currently only prevents parties from making applications where the party concerned has consistently instituted vexatious proceedings (filing proceedings where there is no good cause).

If the reforms go through, final Orders would be made even if the application is “without notice”. This means that one party may file an application with the Family Court for a Parenting Order (often on the grounds that he or she alleges serious safety issues for the child or children), and thereby deny the other party any chance at all to express his or her side prior to an Order being granted (in effect the Order is made without notice of it to the other party).

This proposal to remove interim Orders, even for without notice proceedings, could be seen as a breach of an ancient and fundamental legal principle: “Natural Justice”. Natural Justice is essentially defined as “fair play in action”. A cornerstone of this fair play in action is allowing the other side to give his or her perspectives on the issues being examined.

In practical terms, the reforms mean that in parenting proceedings, particularly where domestic violence is alleged, the person who is said to have committed the violence will often have no chance to express their views on the matter. Unless the aggrieved party can show a material change to the child’s circumstances, if the proposed reforms are implemented, he or she may have to wait up to two years before initiating a new application.

As with other reforms proposed for Family Court procedure, the rationale behind the changes is cost-cutting. While eliminating interim Orders may remove the prospect of a further hearing where one party seeks to challenge the terms of the Order made, in the long run this change could prove immensely costly for the welfare of society as a whole.

Removing interim Orders means that children who are the subject of parenting proceedings may soon have limited, supervised or even no contact with one parent, with no possibility of review, until two years have elapsed. Two years can be a very long time in a child’s life, so that damage to parent-child relationships may occur before the aggrieved party has an opportunity to have the Court address the situation.

Every year, some 58,000 New Zealand families are involved in Family Court proceedings. This equates to approximately nine percent of the New Zealand population, which has an estimated 520,000 families. The proposed reforms are therefore not merely the concern of a minority, but something that at some stage may affect every New Zealander, including you.

 

November 2012