The Family Dispute Resolution Act (the Act) was passed on 24 September 2013.

Under it the Government has introduced a mandatory “user-pays” pre-court alternative dispute resolution – Family Dispute Resolution (FDR) – in parenting or guardianship matters. The Government has also made it discretionary for judges to refer parties to FDR after proceedings have commenced (once only).

Who does what in FDR?

The Family

Pre-court: Mandatory attendance:

The parties to a parenting or guardianship dispute must attend an FDR prior to filing any court applications. They are barred from making applications to court except in limited circumstances.

The parties will attend the mediation with or without lawyers, depending on their means, whether they are State-subsidised. It is understood that the state does not provide funding for attendance of lawyers.

After commencement of proceedings: ‘Once-only’ FDR:

Parties can be directed to attend at FDR after proceedings have been commenced, if a judge thinks there is a ‘reasonable’ prospect of reaching an agreement. Parties’ consent is only needed if they have attended an FDR in the last 12 months. The parties will attend the mediation with or without lawyers, depending on their means.

The Child

There will be no State-funded lawyer, or other representative, to represent the views of the child at FDR.

The FDR Provider

The FDR provider is a mediator, who is required to be specifically trained and accredited to an approved dispute resolution organisation.

The FDR provider is obligated to determine if it is appropriate to start FDR. If it is, the FDR provider will identify the matters in issue between the parties, facilitate discussions on the guardianship and parenting issues, and 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.

The FDR provider is effectively a “gate-keeper” to court/access to justice due to obligations with the FDR form and who he/she provides it to and how.

FDR form

It is troubling to require the mediator to provide an opinion going forward where the parties are not legally represented in FDR itself (and may not have had the benefit of legal advice), and the FDR provider may not be legally trained or have any Family Court legal expertise/experience. It makes the quality of that opinion concerning.

The FDR practitioner can refer parties to three hours preparatory counselling for FDR, to parenting through separation, and for legal advice to State-paid legal counsel where appropriate. The form cannot be given outside these circumstances outlined.

The form remains a potential barrier to access for justice for parents and guardians.

Client Cost

The fee for FDR was originally stated as being $897.00 GST inclusive. Currently the cost is unknown but will be confirmed in regulations when they are made.

FDR is ‘user-pays’, and both parents are jointly responsible for payment. Payment is a private fee paying arrangement if the parent does not qualify for a State subsidy.

The State will not pay for a lawyer to attend the FDR mediation with a parent/guardian even if they qualify for a State subsidy. The State will only provide four hours of “legal support prior to court”.

When does FDR ‘go live?’

March 2014 is picked as the likely implementation date for the majority of reforms. Family dispute resolution forms and the key FDR provider role/obligations linked to these, may come into force later (October 2014). These are the key ‘gate-keeping’ forms that determine access to court (for those otherwise barred except by compliance with mandatory FDR).

However, given the bulk of the Family Court reforms appear to be scheduled for introduction in March 2014, mandatory pre-court FDR would seem likely to be introduced at the same time as a package.

Conclusions and Concerns

Changes as a result of the government’s Family Court Review will be in place early in 2014.

Unless the matter is very urgent, parties will be required to seek dispute resolution before making any application to the Family Court. That process is expensive and it is unclear what will happen if one party refuses to pay their share or to engage in the
process. All those working in the Family Court system are very concerned how families will be affected. Every family situation is different.

Parties can no longer choose to be legally represented in all Family Court proceedings, so vulnerable parties may be without support when they need it most.

The Law society also has concerns about the ability of court staff to provide services to the vast influx of self-represented people without any knowledge of the legal system the legislation will create.

Our advice

Family life has become increasingly complicated in the past 20 years. We move about more and separation and re-partnering is a commonplace occurrence leading to many blended families.

We strongly recommend time spent talking to a family lawyer about the particular concerns. Obtaining reliable information and understanding the legal situation can often save time, money and much heartache later.

This will be particularly so once the changes to the Family Court come into force in 2014.

Should you need any assistance with this, or with any other Family matters, please contact Hannah Carey at Parry Field Lawyers (348-8480).

Disputes about which country or city a child should live in after parents separate (relocation disputes) are becoming more common. Travels costs have become cheaper, meaning that an increasing number of people move overseas for work or to live closer to family members. Inter-cultural marriages have also increased. Even within New Zealand, people may want to move cities/towns for a variety of reasons – work, finances or to be closer to family support. In these situations, what are each parent’s rights and obligations and how important are the views/wishes of the child?

Who has the right to decide where a child should live?

Both parents generally have a right to determine questions about important matters affecting their child. One of these matters is any proposed changes to a child’s place of residence. Therefore, if one parent wishes to relocate elsewhere in New Zealand or overseas with the child, they will either need the consent of the other or an order of a court before doing so.

This means that in the first instance both parents of the child should discuss any intended move by one parent and try to reach agreement.

What happens if the parents/guardians can’t agree on where a child should live?

If the parents can’t agree, there are two options;

a) The parents can request counselling through the Family Court. The Court will provide 6 free sessions of counselling to see whether any agreement can be reached; or

b) Apply to the Court for directions/an order as to where the child is to live. If this option is chosen, the court may still refer the parties to counselling in the first instance.

A court hearing can be a long and costly experience, so it always preferable if parents can come to their own decision as to where a child is to reside.

How does the court primarily decide where a child should live?

The child’s welfare and best interests is the first and most important consideration. This will involve a fact-specific enquiry, focusing on the individual circumstances of the parents and child.

In that context, the Court will consider eight general key principals set out in the Act, assessing their relevance against the circumstances of the particular case (e.g. not all will necessarily be taken into account).

These eight principals are:

(a) Parents and guardians have primary responsibility for their children’s care, development and upbringing.

Because parents have a shared responsibility for their children, any arrangements for their care should involve input from both parents.

(b) Parents and guardians have responsibility to agree arrangements for their children

Parenting is to continue to be a shared responsibility notwithstanding parental alienation or separation. Where parents live some distance apart (especially where they live in different countries) making and implementing arrangements for shared care or contact are likely to be more difficult.

(c) There should be continuity of care arrangements and the need for continuing relationships with wider family/whanau.

This principle stresses the need for continuity in arrangements for the child. Relocation to a different town, city or country is likely to involve discontinuities in the child’s education, friendships, family and local community.

(d) The child should have continuing relationships with both parents.

(e) There should be co-operation and consultation between parents and guardians.

Consultation may be more difficult if the child moves some distance away. It is likely that the role of the contact parent will be harder to sustain because of the geographical distance.

(f) Relationships with extended family/whanau should be preserved and strengthened.

(g) The child’s safety must be protected.

The safety of the child from violence will largely depend on the people with whom the child will be associating in the new location and the degree to which parents, step-parents, family and other carers will be able to ensure the child’s safety and protection.

(h) The child’s identity, culture, language and religion should be preserved and strengthened.

Are there any other factors the court will take into account?

Yes, while the Court must take into account the eight principals set out above (where relevant), it is not prevented from taking into account any other matters relevant to the child’s welfare and best interests.

Other relevant factors have been held to include:

The relocating parent’s capacity to value the input of the other parent, and to facilitate and encourage contact by the other person;
The non-moving parent’s capacity to demonstrate continued interest in the children after relocation;
The extent and focus of the conflict between the parents, either underlying or resulting from a decision to relocate;
The practical consequences of relocation (transport, costs accommodation) and of declining relocation (financial and employment consequences for both parents;
The distance between the two parents homes currently and post-relocation;
The impact of granting (or declining) relocation on the children’s family and social support networks;
Cultural and spiritual considerations;
The children’s previous living arrangements (ie, number of previous moves) and the suggested new living arrangements (ie, whether the children have lived there before);
The merit and reasonableness of the parent’s wish to relocate;
The emotional wellbeing or psychological welfare of a parent;
The nature and quality of the child’s relationship with each parent and the extent to which that relationship maybe affected by relocation;
The wishes and needs of the child or children; and
The impact on the children of granting or declining relocation.

What if a parent has reason to believe that the other parent may take a child out of the district or country without their consent?

If you believe on reasonable grounds that the other parent may take your child out of the district or New Zealand without your consent, you can apply through the Family Court for an Order Preventing Removal of child from the district/or New Zealand. If the order is made, the other parent will not be allowed to remove the child from the defined area without the Court or the other parents’ permission. Where an order is made that the child not be removed from New Zealand, a listing is placed on the child’s passport which will prevent them from leaving the country.

If you are applying for this order on an urgent basis, you will need reasonable grounds before a judge will make the order. This could include evidence such as the other parent purchasing plane tickets for the child, packing up their possessions or telling people that they are leaving.

Relocation disputes can involve a number of difficult issues. If you are intending to relocate or your child(ren)’s other parent is, we strongly recommend that you seek advice from your lawyer as early as possible.

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Should you need any assistance with this, or with any other Family matters, please contact Hannah Carey at Parry Field Lawyers (348-8480) Hannahcarey@parryfield.com

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