New Disputes

If two or more guardians cannot agree between themselves about the exercise of their powers or obligations, most will be required to participate in the new mandatory Family Dispute Resolution (FDR) service. It is designed to assist parties to a family dispute to resolve the dispute without having to pursue Court proceedings, and ensure that the parties’ first and paramount consideration in reaching a resolution is the welfare and best interests of the children. FDR forms must accompany applications to Court, unless parties are exempt.

FDR suppliers are organisations contracted to the Ministry of Justice to provide subsidised FDR services. FDR providers are the individual mediators who will work under a supplier organisation or are appointed by an Approved Dispute Resolution Provider such as the New Zealand Law Society.

Entry points:

  • Parties may be referred to FDR by the court, lawyers, or third party providers such as community law centres or community advice bureaus.
  • They may also access it directly through a FDR provider organisation or through the new Family Justice website at www.justice.govt.nz/family-justice or by ringing 0800 2 AGREE.

Assessment:

  • Cost: A user will qualify for a subsidy if they meet a subsidy test based on their level of income.
    • The first professional who sees the client will administer this using a simple on-line tool. Par-ties can check their own eligibility for a subsidized service online or through the 0800 num-ber.
    • The Ministry of Justice expects that this will cover approximately 60% of those requiring FDR services. The matter is complicated somewhat by situations where one party to a dispute will qualify for a subsidy but the other will not. In these situations the dispute must be dealt with as a subsidised dispute, however the non-qualifying party will be required to pay 50% of the cost.
    • If a user does not qualify for a subsidy, they will be required to pay set price of $897 (including GST) from a government provider. All parties to the dispute will share this cost.
  • Exemptions to FDR: A family dispute resolution form is not required to accompany an application that
    • Is in response to an application that another guardian has made for a Court order.
    • Is urgent (without notice).
    • Is for a consent order or seeks the enforcement of an existing order of the Court.
    • Relates to a child who is already subject to Care and Protection proceedings under the Children, Young Persons, and Their Families Act 1989.
    • Is accompanied by an affidavit that provides evidence that:
      • At least one of the parties is unable to participate effectively in family dispute resolution.
      • That at least one of the parties, or the child of one of the parties has been subject to domestic violence by another party involved in the dispute.

Preparatory Programmes and Resources

Parenting Information Programmes (PIPs)

  • Many guardianship disputes are between parents who are natural guardians. PIPs such as Parenting Through Separation are designed to help parents and guardians think about deci-sions about their children involved in a dispute.
  • PIPs are free to attend. Parties may self-refer before proceedings are issued or may be re-ferred by the Court after proceedings have been filed.

Counselling

  • Free pre-court counselling is no longer available as of right. There is some preparatory counseling available to ready parties for FDR and the FDR provider may refer parties. Sev-eral free sessions are available for those eligible under the subsidy. Those who are not eligible are required to pay.

Legal advice

  • Lawyers are significantly less involved under the new Family Justice System. Legal Aid is not available for non-urgent COCA cases. The Family Legal Advice Service provides up to four hours of preparatory legal advice prior to FDR but attendance at FDR is not covered. A private paying client may access legal advice prior to FDR.
  • Lawyers have new duties when providing advice in COCA cases – they must ensure that the person is aware of:
    • The need for the child’s welfare and best interests to be the first and paramount consideration when settling arrangements; and
    • The mechanisms for assisting resolution of family disputes; and
    • The steps for commencing a proceeding under the Care of Children Act 2004 and subsequently pursuing the proceeding through the court process to obtain a resolution; and
    • The types of directions and orders that the court may make if a proceeding is commenced.

Family Dispute Resolution

A FDR provider will usually be the professional assessing parties whether it is appropriate for parties to participate in FDR. If FDR is able to go ahead, the FDR provider is required to:

  1. Identify issues between the parties
  2. Facilitate discussion between the parties in respect of those matters; and
  3. Assist the parties to reach an agreement on the resolution of those matters that best serves the welfare and best interests of all children involved in the dispute.

Children involved in the guardianship dispute will usually not be present at FDR, unless it is deemed appropriate by the FDR provider. A Lawyer for Child will not commonly be present at this stage.

Applying to the court

In any order of the court the best interests and welfare of the child will be the paramount consideration. The Court will take into account various principles relating to the best interests and welfare of the child. If an application for a direction in relation to a guardianship dispute is made, the Court must have regard to whether at any time a protection order has been in force against one or more of the parties.

Most applications to the Court under the Care of Children Act will require an affidavit and information sheet. All forms are available on the new Family Justice website.

  • Enforcing agreements reached between guardians (Simple Track)
    • If parties agree at any of the stages prior to Court, the Court may formalise a completed FDR agreement by having the terms of the agreement “embodied” in a Parenting Order made by consent. They can apply for this with a General Consent Memorandum form MOJ0534.
    • Parties can also agree to vary (change) an existing Parenting Order by consent. They may re-quest this from the Registrar through form MOJ0522.
  • Settling disputes when guardians cannot agree (Standard Track)
    • Direction
      • If FDR is unsuccessful in resolving a dispute, a guardian may apply to the Family Court for direction with form MOJ0531, accompanied by an affidavit (MOJ0532) and an information sheet (MOJ0581).
      • This must be accompanied by proof of FDR completion or of an exemption. Enforcing an existing order
    • The Court may also enforce existing orders if they are not being followed. A guardian may apply with form MOJ0527 and affidavit MOJ0528 to enforce a guardianship Order.
  • Settling Urgent Disputes involving Violence (urgent track)
    • Guardians can also apply to settle disputes urgently without evidence of FDR completion, using application form MOJ0541 and affidavit form MOJ0542. Evidence of domestic violence is required for a without notice application to be accepted.

Source: Lexis Nexus


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