The Care of Children Act 2004
The Act creates a shift in focus from the “rights” of parents to the “responsibilities” they have toward their children. Separated parents are encouraged to come to their own arrangements about the day-to-day care (custody) of their children. It is considered much better for everyone involved to have the parties agree on an arrangement themselves, rather than having it decided for them.
The most informal of the arrangements which parents/guardians can arrive at are verbal agreements or parenting plans. A parenting plan would simply be a written version of what the parties have agreed, detailing important matters in relation to their children such as where they will live, and how the parties will contribute. Where this is signed by the parties or formalised through the use of lawyers, the plan becomes a parenting agreement, which is a slightly more formal arrangement.
If they choose, parents or guardians may write down the arrangements they have come to, in a ‘parenting agreement’. a. Process There is no specific requirement for the content of a parenting agreement; however it should at the very least include arrangements for day-to-day care and contact. The Ministry of Justice has created a useful pamphlet which outlines a parenting agreement and some useful things to include. Parties ask the Family Court to help by providing free counselling, to help them reach agreement. b. Factors to bear in mind In creating a parenting agreement, remember that the welfare and best interests of the child are the paramount consideration and their views should be taken into account. c. Enforceability A parenting agreement is not enforceable by the Family Court; however parties may apply to the Court to have the agreement made into a ‘parenting order’ which would be enforceable. Parties may also apply to the Court for a parenting order where they are unable to agree on a parenting plan/agreement.
A parenting order, made by the Family Court, will make decisions based on the welfare and best interests of the child. An order may set out who is to have day-to-day care of the child/children as well as who will have contact and when that contact is to take place. In certain cases where the Court has been asked to make a protection order, an order to dissolve a marriage, or a relocation order, it will also make an order as to the day-to-day care of a child/children.
a. People eligible to apply There are a range of people who can apply for parenting orders, which include:
- parents and guardians of the child;
- domestic partner of either of the child’s parents;
- grandparents, aunts/uncles or siblings of the child who can stand in the place of the child’s parent to whom they are related if that parent is unable or unwilling to have contact with the child; or
- with leave of the Family Court:
- another family/whanau member; or anyone else.
b. Process A parenting order is considered by the Court to be a last resort, as it is thought that parties agreeing on an arrangement out of court is much more effective. Below are all the possible steps that could occur if parties were unable to settle their parenting disputes and it progressed to a defended hearing in the Family Court:
- Application for parenting order by one or more parties
- Referral to counselling
- Round-table meeting between the parties and their lawyers
- Judicial conference
- Lawyer for child appointed
- Mediation conference
- Report(s) from Child Youth & Family, if relevant
- Report(s) from a psychologist (optional)
- Family Court Hearing (sometimes called a ‘Defended Hearing’) in which orders are made.
c. Child’s Views The Act emphasises that children’s views should be considered in matters which affect them. If a dispute goes to Court, the judge will ensure the child has the opportunity to say what they think, for example about who they should live with. These matters surrounding children can be complicated and sensitive. At Jeremy Sutton Barristers we can help make this process a little easier and we work hard to achieve the desired outcome. d. Mediation The courts encourage parties to settle their disputes themselves. If counselling is unsuccessful, then mediation will usually be the next step, although the vast majority of cases are settled before this point. This is a confidential forum for the parties to discuss their differences and attempt to reach an agreement. e. Costs There are costs associated with applying for a parenting order in the Family Court. Please see the Ministry of Justice Website for details. If you are unable to pay the fee, you may apply to the Family Court for a fee-waiver. Lawyer’s fees will vary considerably; at Jeremy Sutton Barristers we will happily have an initial consultation with you where we can set a fixed fee for ongoing services. f. Timeframe The quickest and cheapest option for both parties is to agree out of Court. In this situation, cases of average complexity may take four to eight months to conclude. This will depend on how quickly parents can reach agreement and through what channels. Only one percent of cases go to a full hearing at the Family Court; these cases can take nine to eighteen months.
Length of time for a parenting order
The length of time for which a parenting order lasts will depend on what kind of order is made, this may be an interim or final order. An interim order lasts up until a specific date or until a certain thing happens (i.e. one parent moves overseas) but will not last longer than one year, unless the parties apply to have it extended. A final order will last until the child turns 16, unless it is a special case whereby the Court has decided it should extend beyond that age.
Breach of a parenting order
A parenting order, if breached, leaves the Family Court with a number of options available to it:
- The court may have a stern word with the person and essentially tell them off;
- The court may change or cancel the order;
- The court may ask the person to pay a sum of money to the court which would be kept as a bond and forfeited if they continue to breach the order;
- If the other part lost money because of the breach (such as paying for travel tickets) then the court can require the person who breached the order to compensate them.
- If one person is preventing the other from enforcing their rights in the parenting order, the Court can order the Police or a social worker to pick up the children and deliver them to the other person.
Breach of a parenting order is a criminal offence and if charged can lead to a maximum penalty of 3 months imprisonment or a fine of up to $2,500.
Your have a range of options when it comes to deciding on how best to manage the care of your children. The more informal verbal agreements and parenting plans are often effective where parties have a good, amicable relationship and can communicate effectively. Unfortunately effective communication is not always a reality as added stress complicates matters by creating friction between parents/guardians. In order to minimise the pressure on yourself and your children it is desirable to come to an agreement as soon as possible, so we encourage our clients to settle out of the court process. A more formal parenting agreement is often what is needed for parties who are struggling to agree. The use of free counselling from the Family Court and/or negotiation between lawyers can often lead to a satisfactory outcome. How can we help? Please call us to arrange an appointment. In our first meeting with you we will explain the law, your options and the outcome you can reasonably expect. We will also advise a fixed fee for your case and the likely time it will take to settle. You can contact us by phone on (09) 309 4647.
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