What happens after I've applied for a parenting order?
Once you've filed your application, usually a Family Court judge will consider it and decide what the next steps in the case should be. The judge will do this in his or her own office (called “chambers”); you won't be present for this.
One of the first steps in the court process will usually be an “issues conference”, which you and the other person will both attend (see below, “What happens at an issues conference”?).
Later the judge may also order a “settlement conference”, to see if the case can be resolved without a court hearing (see below, “What happens at a settlement conference?”). Various other meetings (“conferences”) may also be held before the final court hearing. You may not have to attend all of these; the court will let you know if you have to attend.
Each conference will be run by a Family Court judge. The conferences can be held by telephone or video-conference in some cases. After each conference you'll be given a written record of the directions or orders made by the judge at the conference.
Note: You usually won’t be able to have a lawyer represent you until after the judge has directed that your case will go on to a court hearing where the judge will make a final decision.
Will the process be the same for all parenting order cases?
Most parenting order cases follow the process summarised above – called the “standard track” – where you file the application (giving a copy to the other person), the other person then files a response, and the case then begins to progress towards a final court hearing, starting with an issues conference.
The process will be different, however, if it's an urgent case – these follow the “without notice track” (see below “What happens in urgent cases?”).
There's also a special simplified process – the “simple track” – if you've merely applied for a consent order (which is where both sides want the same thing and ask the judge to make this into a court order), or if the other parent hasn't responded to your application (see below, “The ‘simple track' where both sides agree”).
What happens at an Issues Conference?
An issues conference will be held early on in your case, unless the judge directs you to Family Dispute Resolution first (see below, “Directions for counselling and Family Dispute Resolution in some cases”). The purpose of an issues conference is for the judge to meet with both of you and identify exactly what the disputed issues are. The judge can then make various directions for how your case should best be dealt with.
At this stage of the case the two sides usually won't have lawyers. The judge will speak to you directly to find out what the key disagreements are.
At the end of the conference, the judge will direct that the case will go either to a settlement conference (see below) or to a final court hearing.
What happens at a Settlement Conference?
The purpose of a settlement conference is to try to reach agreement on the issues in dispute (or some of them), so that a court hearing isn't necessary.
The judge will run the conference. You can ask to bring a support person with you. The judge will also have told you whether you're allowed to have a lawyer at the settlement conference; if you are allowed to have a lawyer, legal aid might be available for this if you qualify for it.
If the conference does resolve the dispute (or some of the disputed issues), the judge can make a consent order, which is a court order that gives effect to what you've agreed. The consent order must then be obeyed like any other court order.
But if you and the other person still can't agree, the judge will order the case to go to a court hearing (or order Family Dispute Resolution).
Other steps before the final hearing
Once the judge has ordered that your case will go to a final court hearing, the judge can also order that there will be a “directions conference”. There the judge will give any directions necessary to make sure that the hearing is held as early as possible and that it will be able to decide all the issues. A “pre-hearing conference” may also be held to make sure your case is progressing as necessary to go to the court hearing on the scheduled date.
By the time your case goes to a directions conference or pre-hearing conference you'll be allowed to have a lawyer represent you and appear with you in court.
Particularly complex cases may get special supervision from a judge, and as part of this one or more “case management conferences” may be held. These can be held at any stage of the case. A case might be classified as complex if, for example, there are claims of serious abuse or violence, or if the behaviour or personalities of the people involved pose a risk to the child's safety or well-being, or if there are particular legal, technical or evidentiary issues that are unusual or difficult.
You yourself can ask the court to hold a case management conference; judges can also decide to hold one on their own initiative.
Directions for Counselling or Family Dispute Resolution in some cases
If you've applied for a parenting order the judge can order you and the other person to attend free counselling, if the judge thinks this will improve your relationship or will encourage you to comply with an order or direction that the court has made.
The judge can also order you to go to Family Dispute Resolution, if yours is one of those cases where going to FDR isn't a precondition for applying to the court. If you have already been to FDR in the last 12 months, the judge can put your case on hold so that you can go to FDR again, but only if both sides agree to this.
Will a lawyer be appointed for my child?
The Family Court can appoint a lawyer to represent your child if the judge has concerns about the child's safety or well-being and thinks the appointment is necessary. This lawyer is called “lawyer for the child”.
The role of the lawyer will be to act for the child in a way that the lawyer thinks promotes the child's welfare and best interests. The lawyer will meet with the child to find out his or her views, and will present those views to the court. The lawyer will also give advice to the child about appealing the Family Court's decision to a higher court, and must give this advice in a way that's appropriate to the child's level of understanding.
If a lawyer is appointed for your child, you and the other parent will usually have to pay two thirds of the lawyer's fees, in equal shares. But you may not have to pay your share if this would cause serious hardship to you or your children.
What happens in urgent cases?
If yours is an urgent case and you've applied “without notice” (that is, without the other person being told about your application), your case will follow the “without notice track”. Here your case will be considered by a judge for the first time without the other person being told about your application and having a chance to file a response.
In urgent cases you're allowed to have a lawyer to represent you and appear with you in court, and legal aid is available for this if you qualify for it.
When the judge considers your without notice application the judge can usually only make an interim (temporary) parenting order. However, the judge can decide that it's not appropriate to make any order without the other person being notified; in that case the judge will direct that your case should follow the “standard track”. The process will then be the same as if you'd applied “on notice” at the outset.
If the judge makes an interim parenting order, the judge will direct that your case go to a hearing for a final decision. The other person will be informed and have a chance to respond to your application. A “directions conference” will be scheduled before a hearing is held, so that the judge can give any directions necessary to make sure that the hearing is held as early as possible and that it will be able to decide all the issues.
The “Simple Track” where both sides agree
There's a special simplified process – the “simple track” – if you've merely applied for a consent order (which is where both sides want the same thing and ask the judge to make this into a court order), or if the other parent hasn't responded to your application or has filed a response after the time limit.
The judge will consider your application in his or her chambers (offices) without you being present. This will be done within two weeks after you apply, if this is reasonably practicable. The judge will usually make a final order at that point.
The Court Hearing: How the judge decides what to do
Once your case goes to a court hearing (a “defended hearing”), the decision is in the hands of the judge.
However, even after the court hearing has begun you and the other person can still settle the dispute – you can do this at any time up until the judge gives a decision at the end of the case.
At the hearing the judge will hear evidence (usually from the two parents and any witnesses they bring) and will then decide what the care arrangements for your child will be. At this stage of the case you can have a lawyer to represent you. The Family Court is allowed to accept a wide variety of evidence, including evidence that wouldn't be allowed in other courts.
The most important factor in the judge's decision must be the child's welfare and best interests. The judge must also take a number of specific principles into account when deciding exactly what arrangements would be in the child's welfare and best interests (see below, “The most important factor: The welfare and best interests of the child”).
The judge will take into account what the child's views on the issues being considered, if the child has a view on this (see below, “Taking account of the child's views”). In some cases the judge will have appointed a lawyer to represent the child and convey the child's views to the court (see above, “When a lawyer can be appointed for the child”).
The most important factor: The welfare and best interests of the child
When the Family Court is deciding about care arrangements for a child, the first and most important factor is the welfare and best interests of the child.
When it's considering what arrangement would be in the child's welfare and best interests, the court must take the following specific principles into account:
- Decisions affecting the child should be made and put into effect within a timeframe that's appropriate to that child's sense of time.
- The child must be kept safe and be protected from all forms of violence from all people, including from family members.
- If there is, or has ever been, a domestic violence protection order in force against one of the parents, then the judge must specifically take into account: whether the protection order is still in force; the circumstances in which the order was made; and any written reasons given by the judge who made the protection order. In some cases a parenting order will direct that any contact with a particular parent must be supervised (see below, “Types of care arrangements that can be ordered / Supervised contact if the child isn't safe”).
- The child's parents and guardians should have the main responsibility for the child's care, development, and upbringing.
- There should be ongoing consultation and co-operation between the child's parents and guardians and any other people who have a role in the care of the child under a parenting order or guardianship order.
- There should be continuity in the arrangements for the child's care, development and upbringing.
- The child should continue to have a relationship with both parents, and the child's relationships with his or her family or whānau should be preserved and strengthened.
- The child's identity, including his or her culture, language and religion, should be preserved and strengthened.
Taking account of the child's views
The child must be given a chance to say what they think. They can convey this to the judge directly, or through a lawyer appointed for the child.
The judge must take these views into account when deciding the case.
Reports from social workers, doctors and other specialists
To help it make a decision, the Family Court can ask for a written report about the child from a specialist, such as a social worker, a medical doctor, or cultural advisor who can report on some aspect of the child's culture (including their religion). The court can also ask a psychologist to report on the child's psychological needs and how their welfare and best interests can be met.
The parents will usually have to pay two thirds of the cost of these reports, in equal shares. However, you may not have to pay your share if this would cause serious hardship to you or your children.
What types of arrangements can the judge order?
There are many options for how a parenting order can set out the care arrangements for a child. Sometimes parents will share the day-to-day care of their child equally, sometimes one parent may provide more of the day-to-day care, and in other situations one parent will have day-to-day care for the child and the other will have contact.
The Care of Children Act recognises the importance of both parents being involved in the child's life and so the Family Court will make arrangements that enable the child to have an ongoing relationship with both parents, unless this is not in the child's best interests. The Act also recognises that a child's relationship with wider family and whānau should be preserved and strengthened, so a parenting order may also specify what contact will occur to enable these relationships to continue.
A parenting order can also deal with things like drop-off and pick-up arrangements and how care will be shared during holiday periods and for special events such as birthdays.
Supervised contact when children are at risk
If a judge making a parenting order is deciding about contact with a particular parent and isn't satisfied that the child would be safe with that parent, the judge can order that any contact between the child and that parent must be supervised.
Supervised contact means that contact is overseen by an approved organisation or by a suitable person approved by the court, such as a relative or family friend. It means that contact will happen in a safe, controlled situation. If the contact is supervised by an approved organisation, this is paid for by the government.