The Care of Children Act 2004 (CoCA) provides the law regarding care of children. This law applies when parents separate or whānau disagree with the care and/or contact arrangements for tamariki.
CoCA provides a legal process to resolve the care and contact arrangements for the tamariki as well as disputes between guardians. Sometimes other whānau, not the parents, are unhappy about the care arrangements or decision making for tamariki. This might happen in situations where there are allegations of family violence and/or alcohol and drug abuse by the parents.
Where whānau are unable to agree on care, contact or decision making for tamariki, an application can be made to the Family Court and a judge will decide.
If the application is urgent, either party or the whānau can apply without notice to the Family Court for urgent orders.
Whether the application is on notice (which means whānau being able to tell the judge their side of the story before a decision is made) or without notice (whanau not being given a copy of the application until after the judge decides), the focus for the judge is on the welfare and best interests of tamariki. Their interests come first. Applying for orders without notice tells the judge it is urgent and that there are safety concerns for tamariki.
CoCA provides a series of pathways to resolve disagreements. This is sometimes described as the family justice system. Generally, parents or whānau who want to apply for a parenting order will have an opportunity to attend a parenting information programme and family dispute resolution (mediation) before they file any applications.
The parenting information programmes are free and aim to give practical advice to whānau, when there is a disagreement regarding the care, contact and decision making for tamariki.
Family dispute resolution is a mediation service designed to help parents and/or whānau reach agreement regarding care, contact, and decision making for tamariki. Mediation costs about $900, parents or whānau are expected to share that cost. Depending on your income whānau may qualify for legal aid to cover some or all their costs.
If parents or whānau do not agree at mediation, they can apply to the Family Court under CoCA for an order/s. When the application is made, the family justice system then places the application on one of three tracks – a simple track, standard track and without notice track.
Simple track - The simple track is for applications that are filed, served on the other party an there is no opposition to the application. If a defence is filed, the application will be referred to the standard track.
Standard track - The standard track applies when a defence has been filed. Included in the process will be the opportunity to attend a settlement conference, which is a mediation conference chaired by the judge. Directions, issues, or pre-hearing conferences are meetings with the judge to see where things are at and what needs to be done.
The without notice (urgent) track is for situations where there is/are alleged risks to tamariki, which requires an urgent response. Risk may be from family violence, alcohol, and drugs or from removal of tamariki from the areas where they live. If the application is defended then a hearing will be allocated.
Again, directions, issues or pre-hearing conferences can be held and are meetings with the judge to see where things are at and what needs to be done.