Jane* has been with her partner, John* for a number of years. They have children together. Unfortunately, Jane and John’s relationship became strained and they decided to separate. Post separation, Jane and John cannot see eye to eye. They fight over a number of things, one being who will look after the children. They have tried making their own private arrangements for the children, but it always ends in arguments. What can Jane and John do to resolve their custody disputes over their children? Can they go to the Family Court?

In 2014, the Family Justice law reforms changed the way in which we approach custody disputes in New Zealand. Currently, parents who cannot agree on the care arrangements for their children are encouraged to attend a Parenting Through Separation (PTS) course in the first instance. PTS is a free information programme that looks at communication techniques, understanding a child’s needs and how to make the best care arrangements for children.

If no agreement can be reached at PTS, then those parties will be expected to attend Family Dispute Resolution (FDR). FDR is a mediation service that helps families reach agreement on custody arrangements when a relationship comes to an end.

However, what happens if you couldn’t reach agreement at PTS or FDR? What if the dispute was acrimonious and a parent needed urgent intervention from the Family Court? When there is a dispute about the care arrangements of children, and that dispute cannot be resolve at FDR, an application may be made “on notice” or “without notice” for a parenting order in the Family Court.

An “on notice” application is where you file an application in the Family Court and notify the other party of your application. The other party is then given time to respond to your application. For an on notice application, it is a prerequisite that you must attend PTS within the preceding 2 years and FDR within the preceding 12 months. If you have fulfilled these prerequisites, the Court will determine the custody dispute by considering the children’s welfare and best interests, which may result in a parenting order.

If there are concerns that an on notice application might cause serious injury or undue hardship to a parent or their child, or might risk the personal safety of a parent and their child, a party can apply “without notice” for a parenting order. A without notice application for a parenting order removes the requirement to notify the other parent of your application. It also removes the perquisites to attend PTS and FDR. Without notice applications of a parenting order can be quite difficult to achieve. It requires a careful examination of your situation and the legal requirements. It is worthwhile seeing a specialist family lawyer for that task.

If you are involved in a custody dispute and you’re not quite sure whether you should go to the Family Court, get in contact with your local family lawyer who will be able to point you in a suitable direction.  

*fictitious names