Care of children disputes - going to court 

 

 
When is it necessary to go to court over the care of our children?

It may be necessary to go to court if

  • you have reached an agreement, and want to make it legally enforceable or
  • you couldn’t reach an agreement through Family Disputes Resolution (FDR) or
  • domestic violence is involved and the safety of the children or one of the parties is at risk

Generally you can’t go to court unless both parties have already completed the Parenting Through Separation course and Family Disputes Resolution, but there are exceptions to this; see below for more information.


In what circumstances can someone apply to the Family Court without having first completed Parenting Through Separation (PTS) and Family Disputes Resolution (FDR)?

There are some situations in which the case can go to the Family Court without both parties having first completed PTS and FDR.

These include:

  • one or both parties aren’t able to attend or refuse to attend PTS and FDR (e.g. because one party is in prison)
  • One party or a child has been subjected to violence (or is at risk of violence) by another party in the dispute
  • One or both parties can’t take part effectively (e.g. because of language difficulties)
  • The case relates to a child who is the subject of proceedings under the Children, Young Persons and their Families Act
  • One party is making a without notice application to the court (e.g. applied for a protection order without notice).
  • In undefended proceedings (e.g. one party has been served a notice and the other party hasn’t filed a notice of reply)


I’ve lost the certificate for completing our FDR mediation sessions. What can I do?

Information about your participation in Parenting Through Separation (PTS) and Family Dispute Resolution (FDR) is all recorded on the Family Justice computer system.

This means that if you want to apply to the Family Court about your dispute but don’t have your certificates to show that you’ve completed PTS and FDR within the required timeframes, all is not lost. When you present your application to the Family Court registry staff, let them know you have lost your certificate and they should be able to check their computer system to confirm your attendance.

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How do I apply for a parenting order?

First of all you have to file an application with the Family Court. This consists of an application form, an affidavit, along with the certificates from your Parenting Through Separation course and FDR mediation (unless you've been exempted from these two steps). There is a filing fee of around $220. More about filing and service Family Court documents is on the Ministry of Justice website.

If your case has been assessed as needing to be in the “without notice” track (this is explained below), your lawyer can do this for you.

The other party (the respondent) receives a copy of the affidavit and can respond (file a ‘notice of response’) within a certain timeframe. This is their opportunity to tell the judge what they think is in the best interests of the children.

Either party can get help from a family lawyer with completing the application or responding to the application. If they are eligible for government funding, they can get this help for free from the Family Legal Advice Service (FLAS).


What happens once we get to court?

In-court track system

Depending on your situation, you’ll enter one of three “tracks” of the in-court part of the Family Justice system (although the judge can decide to shift your case from one track to another as appropriate):

  •  Simple track – this is for:
    • People who have already reached an agreement about the day-to-day care of their children, and just want a consented order (so that the agreement will be legally enforceable) or
    • People in undefended proceedings (e.g. if one party has been served notice and the other doesn’t bother to file a reply notice)

You have to have completed PTS or FDR first, unless one of the exceptions apply. You probably won’t have to appear in court.

  • Standard track – this is for people who have not been able to reach an agreement out-of-court (i.e. through PTS or FDR). In most cases you have to have completed PTS in the last two years and FDR within the last 12 months beforehand.

The judge can direct the parties to attend a case conference and/or a hearing.  

  • Without notice track – this is for urgent cases, for example where there is a risk of harm to the children. It’s not necessary to complete PTS or FDR beforehand, and you don’t have to notify the other party.

Ordering specialist services

For cases on the standard track, the judge may request specialist services such as a lawyer for the child, special report writers or counsellors. The judge may decide that the parties involved should contribute to the costs of these services and how much, depending on whether paying these costs would cause the parties serious financial hardship.

Referral back to PTS and/or FDR

For cases on the standard track, the judge can also

  • require the parties to complete FDR if they haven’t done in the last 12 months
  • require the parties to complete PTS if they haven’t done so within the last 2 years
  • recommend the parties attend FDR even if they had already done so in the last 12 months, but they don’t have to go unless both parties agree to it

The judge can also move a case from one track to another if it would be appropriate, or direct that a person can have legal representation.

Safety concerns will always take precedence over care of children matters. This means the judge needs to be satisfied that any domestic violence or CYFS matters have been adequately dealt with before dealing with care of children matters.

When the judge has made a decision about the care arrangements for the child, based on the child’s best interests, they will issue an appropriate court order.

More about what to expect at Family Court is on the Ministry of Justice website.

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Do I need a lawyer if we’re going to court?


You will be expected to represent yourself, except in certain circumstances:

  • you are on the “without notice” track or
  • the Judge decides that you should have legal representation  or
  • the Judge directs you to attending a hearing.

In the above circumstances, you can choose to get a lawyer or represent yourself.

The judge may also ask that a lawyer be appointed for the child or children.

If you are allowed to have legal representation but can’t afford a lawyer, you may be eligible for legal aid.

If you are representing yourself, you may be allowed a support person (e.g. a family member or a Womens Refuge volunteer) to accompany you in court – but they aren’t allowed to speak on your behalf. You can also hire a lawyer to give your advice and support outside of the courtroom, at your own expense.

You can also apply to the Family Court for an interpreter if you might have language difficulties. This service is free. If you will need an interpreter, you, your lawyer, or a support person will need to advise the Court at least ten working days in advance so that they can arrange for one.

There is information on the Ministry of Justice website to help you prepare to represent yourself in court.


Can I get help with filing my court application?

If you are on the “without notice” track (e.g. because there’s a risk of harm to the child), your lawyer can file the application for you (and you may be entitled to legal aid.

Otherwise, you will have to file your applications yourself (i.e. you can’t get a lawyer to do this for you). You can however get help from a lawyer about filling in forms, guidance about court processes and general advice about your rights and options. If you can’t afford your own lawyer you may be eligible for help from the Family Legal Advice Service (FLAS) which is provided by the Family Court (see Who is entitled to legal support from the Family Court?).

The application forms are available from your nearest Family Court location or you can download them from the Ministry of Justice website.

There is a fee for filing your application, though you may be eligible for a fee waiver.

Note that the Family Legal Advice Service is not available if you are filing an application in relation to Hague convention matters (i.e. getting your child back from overseas), as you’d normally get legal representation for this type of case.

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Who is entitled to Family Legal Advice and how do I get it?

If you’re eligible for funding, you will be entitled to assistance with completing court application forms and general advice about what to expect, from the Family Legal Advice Service (FLAS). You can access the FLAS service once per twelve month period.
 
You can check whether you are eligible for funding, by viewing the Ministry of Justice's eligibility table, or by calling the Family Justice line 0800 2 AGREE.

If you are eligible, you can look for a family lawyer who is funded to provide FLAS by searching the service provider directory on the Ministry of Justice website. The funded family lawyers have the word “Funded” under their contact details.


What can I do if I disagree with the parenting order?

You can apply for a variation to, or discharge of, the parenting order. Normally you can only do this if the order was made more than two years ago.  To do this you need to file an application form, affidavit and other supporting documents, and pay a court fee of around $220. You’ll have to comply with its conditions in the meantime. 

If all the parties agree to the change you can apply for a variation, if it is only a minor variation then it will be free to vary it. Find out more on the Ministry of Justice website.


What do I need to know if I’m representing myself at a hearing?

If your case is to be dealt with in a court hearing, you will be allowed legal representation and you might be eligible for legal aid.

If you choose to represent yourself, you’ll need to present evidence and question witnesses. It will help you to familiarise yourself with the legislation that covers your case. Also, there are strict rules around how you conduct yourself in the Family Court (e.g. you can’t bring children with you, or leave your mobile phone on).

It’s a good idea to get legal advice even if you are representing yourself in Court, as this can help you to be effective at the hearing. Your local CAB can help you find a family lawyer, or you can visit your nearest community law centre.
 
More information is on the Ministry of Justice website.

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Where can I get more information about this whole process?

You can get information from: