The Care of Children Act 2004

The Care of Children Act 2004 (the Act) made some radical and revolutionary changes to this area, making the welfare of the child a paramount consideration and also encouraging consideration of children’s views on matters concerning them. 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. This may involve sharing care equally or splitting it in a way which suits all concerned. It is considered much better for everyone involved to have the parties agree on an arrangement themselves, rather than having it decided for them. A parent who does not have day-to-day care may have contact with the child, formally known as “access”.

Informal Agreements

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.

Parenting Agreements

If they choose, parents or guardians may write down the arrangements they have come to, in a ‘parenting agreement’. This records how each of the parties will contribute to the care of the children and other important matters regarding the children that have been agreed upon.

1. 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. This process simply involves putting the details into writing in order to avoid any disagreement later on. The Ministry of Justice has created a useful pamphlet which outlines a parenting agreement and some useful things to include. There is no requirement to formalise the plan using lawyers, although a divorce lawyer will be experienced in preparing these agreements and can advise you on what to include. At Jeremy Sutton Barristers we have a lot of experience in this area and can help draft an agreement that will ensure parenting runs as smoothly as possible for everyone concerned. Another option is to ask the Family Court to help by providing free counselling for the parents, to help them reach agreement. If an existing agreement is presenting problems, the parties can again apply to the Family Court for free counselling where a mediator will attempt to resolve the issues.
2. 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. Day-to-day care and contact arrangements should be as realistic and flexible as possible, and parties should avoid engaging in any parental behaviour which may threaten the value of contact for the child, such as using children to spy on the other parent. Once completed an agreement should be signed by both parties.
3. 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.

Parenting Orders

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 guardianship issues, 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;
• 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 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. Therefore upon application for an order, the parties will be referred to counselling, and failing that, mediation in an attempt to resolve issues out of court. 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, Youth and Family (CYFS) Where there are care and protection concerns, CYFS may become involved. A Social Worker will prepare a report looking at the living situation, including issues of alcohol, drugs, criminal convictions, mental health and general safety in the home. A family group conference may need to take place, involving a meeting with all parties concerned to discuss the issues and attempt to come up with a plan. CYFS may take the view that the parents/caregivers are unwilling or unable to care properly for the children.

d. 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. The weight placed on these views by the court will depend on the age and maturity of the child as often their preference may not be in their best interests. 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. Jeremy is appointed by the Courts to act for children in difficult family situations. He has a particular interest in child offending and also intellectual disability, mental health and other related issues. Jeremy has also been appointed regularly as Counsel to assist in the Youth Court and Family Court in these areas. This has given him a unique insight into the needs of children and young people, and he is a passionate advocate for their well being.

e. 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. Mediation may be a round table meeting with the parties and their lawyers or it may be a judge-led mediation, which will take place in the court and be carried out by a Family Court Judge.

f. 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.

g. 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. Enlisting the help of a Divorce Lawyer to make a parenting order application would be an advantage in obtaining the best possible outcome for you and your child. They will be able to advise you on the best approach to take for your specific situation and help you ensure your rights are protected. The extensive experience and direct approach a Divorce Lawyer brings to the table will benefit you in mediations and negotiations with the other party.

Relevant factors the court may consider in a dispute:

The Act provides a framework of principles for the Family Court to make use of when deciding on a parenting order application. These are not the only factors a judge will take into account, nor will they all be considered in each case. The Act makes clear that the needs of each individual child will be considered and a remedy found that is in that child’s best interests, rather than looking at which parent has the best case.

• The principle of child protection – This is the idea that the child’s safety should be protected at all times and he/she should be shielded from all forms of violence by his whanau, family group, iwi, hapu or other persons.
• The principle of the child expressing views and those views being taken account of (Section 6 of the Act).
• The principle of the child’s time frame – This is the idea that decisions affecting the child should be made within a time frame that is appropriate to the child’s sense of time. Delays, whether deliberately caused or otherwise, are considered detrimental to the child and can complicate the situation considerably.
• The principle of the particular emphasis of the child having a continuing relationship with both parents – this is not a guarantee of equal sharing of parenting but will be considered in the context of each child’s individual circumstances.
• The principle of continuity — there should be continuity in arrangements for the care of children and relationships with family and whanau should be stable and ongoing.
• The principle of preserving and strengthening family ties — this is the idea that relationships with the child’s wider family group, iwi, or hapu should be maintained and strengthened.
• The principle of identity — A child’s identity should be preserved and strengthened, including but not limited to his/her religion, culture and language.
• The principle that conduct is only to be taken account of if it is relevant to the child’s welfare.

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 increasing in severity:

• 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 party 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.

Parental alienation

Parental alienation happens when a child is reluctant to have contact with one of the parents and in many cases has no contact with that parent. This is a difficult situation which can have a huge impact on the parent and on the child. We have handled many of these cases and have the experience to represent you throughout the process. We work with top experts who provide opinions in negotiations and in Court, to ensure that you obtain the best possible outcome for you and your child.

Your Options

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. 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. The Family Court Proceedings Reform Bill, which is before Parliament at the moment, proposes a number of changes to Divorce Law, and care of children in particular. One of the most important changes is the introduction of “Family Dispute Resolution” which is a formal out-of-court process for guardians to agree on parenting arrangements. A number of other changes are proposed, for details please visit the Ministry of Justice website.

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.

Jeremy Sutton Barristers would like to acknowledge the assistance of the NZ MoJ and LexisNexis NZ in compiling the material on this website. For more information, visit: http://www.justice.govt.nz/courts/family-court/ The information posted on this website is prepared for a general audience without investigation into the facts of any particular case. This information is no substitute for legal advice and does not create a lawyer-client relationship; you are advised to consult with a lawyer on any legal issue.