Family Court Proceedings Reform Bill

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Explanatory note

General policy statement

This Bill is introduced under Standing Order 260(a), which provides that an omnibus Bill to amend more than 1 Act may be introduced if the amendments deal with an interrelated topic that can be regarded as implementing a single broad policy.

The Family Court Proceedings Reform Bill implements the Government’s decisions resulting from a review of the Family Court conducted by the Ministry of Justice. The purpose of the reforms is to ensure a modern, accessible family justice system that is responsive to children and vulnerable people, and is efficient and effective.

The Bill encourages faster, less adversarial resolution of family disputes through requiring parties to disputes about children to participate in an out-of-court family dispute resolution process, and a parenting information programme, before applying to the Family Court.

The Bill focuses the Family Court on those disputes that need a judicial decision. It includes changes to make the operation of the court more efficient and effective, to mitigate the adversarial nature of court proceedings, and to improve the court’s response to victims of domestic violence.

Changes included in the Bill allow for better targeting of resources in the family justice system. These changes are aimed at ensuring that the system remains affordable in the future, and that the court is able to support those children and vulnerable people who most need its protection.

The Bill amends the following Acts:

  • Care of Children Act 2004:

  • Child Support Act 1991:

  • Children, Young Persons, and Their Families Act 1989:

  • Domestic Violence Act 1995:

  • Family Courts Act 1980:

  • Family Proceedings Act 1980:

  • Legal Services Act 2011:

  • Property (Relationships) Act 1976:

  • Protection of Personal and Property Rights Act 1988.

The changes in the Bill will be supported by amendments to the Family Courts Rules 2002, and to other regulations and rules that support family law statutes.

Supporting people to resolve their disputes

The Bill establishes mechanisms to shift the family justice system’s focus towards supporting people to resolve their disputes, where appropriate, out of court. The main mechanism to achieve this in the Bill is the creation of a process called family dispute resolution.

The Bill requires a person to complete a parenting information programme and to attempt family dispute resolution before applying to the court for a parenting or guardianship order, unless an exemption applies, for example, if there has been violence.

The Bill requires that a person attend family dispute resolution for certain disputes about the care of children before applying to the court to resolve the dispute. However, a person may also decide to attempt family dispute resolution for other family disputes, such as disputes about relationship property. Legislation is not required to enable people to attend family dispute resolution on a voluntary basis.

Out-of-court dispute resolution provides a distinct and effective opportunity for people to resolve disputes sooner and less acrimoniously than by court proceedings. Effective pre-court processes can reduce the number of cases coming to the court by encouraging people to focus on the needs of their children and on taking ownership of the agreement reached. This can improve outcomes for children by reducing the likelihood of heightened conflict that often results from litigation.

Family dispute resolution will be incorporated into the Family Courts Act 1980, which is being renamed the Family Disputes (Resolution Methods) Act 1980 to make it clear that Family Court proceedings are only 1 method of resolving family disputes and that family dispute resolution comes first.

Refocusing of Family Court

The Bill focuses the Family Court on resolving disputes that need a judicial decision in a manner that is understandable, simple, transparent, timely, and proportionate to the dispute. It empowers Judges to focus on the most serious cases, and targets the court’s resources towards those children and vulnerable people who most need its protection. The means to achieve these changes in the Bill include—

  • clarifying the principles relevant to a child’s welfare and best interests, including ensuring a child's safety:

  • enabling a more flexible and proportionate response to allegations of violence in proceedings under the Care of Children Act 2004:

  • focusing the court on its adjudicative function, but enabling Judges to direct parties to attend relationship counselling during proceedings in certain circumstances:

  • replacing provisions relating to counselling and Judge-led mediation with out-of-court processes such as family dispute resolution and parenting information programmes:

  • targeting the use of professionals (lawyers for parties, lawyers for children, specialist report writers) in care-of-children matters:

  • requiring parties to contribute to the cost of specialist report writers unless doing so would cause financial hardship:

  • requiring parties to obtain the court's leave to commence proceedings if it is less than 2 years since a judgment on similar proceedings:

  • easing the transfer of relationship property disputes from the Family Court to the High Court.

Improving the court’s response to domestic violence

The Bill better supports vulnerable people, including through improving responsiveness to domestic violence. It does this through—

  • expanding the definition of psychological abuse in the Domestic Violence Act 1995 to include financial and economic abuse:

  • increasing the maximum sentence for breaching a protection order from 2 years to 3 years:

  • providing for greater flexibility in the development and delivery of mandatory non-violence programmes.

Regulatory impact statement

The Ministry of Justice produced a regulatory impact statement in August 2012 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

A copy of this regulatory impact statement can be found at—

Clause by clause analysis

Clause 1 is the Title clause.

It is intended that the Bill will be divided into the following 9 separate Bills at committee of the whole House stage:

  • Care of Children Amendment Bill:

  • Child Support Amendment Bill:

  • Children, Young Persons, and Their Families Amendment Bill:

  • Domestic Violence Amendment Bill:

  • Family Courts Amendment Bill:

  • Family Proceedings Amendment Bill:

  • Legal Services Amendment Bill:

  • Property (Relationships) Amendment Bill:

  • Protection of Personal and Property Rights Amendment Bill.

Clause 2 is the commencement clause. Most of the provisions of the Bill will come into force on 1 October 2013. On this date, amendments to various regulations and rules, in particular the Family Courts Rules 2002, will also come into force. The provisions having a later commencement date are those in Part 2 relating to the provision of domestic violence support programmes and non-violence programmes. These provisions are to come into force by Order in Council to allow sufficient time to make regulations and implement changes. If no Order in Council has been made by 1 October 2014, the provisions will come into force on that date.

Part 1
Amendments to Care of Children Act 2004

Clause 3 provides that Part 1 amends the Care of Children Act 2004 (the Act).

Clause 4 replaces sections 4 and 5.

New section 4, which provides for the paramountcy of a child's welfare and best interests, makes it clear that, in respect of a person who is seeking to have a role in the upbringing of a child, account may be taken of that person's conduct to the extent that it unnecessarily delays decisions, is obstructive, or is otherwise relevant.

New section 5 simplifies and reorders the principles relating to a child's welfare and best interests in existing section 5 of the Act. Listed as the first principle is that a child must be protected from all forms of violence.

Clause 5 replaces section 7 with new sections 7 and 7A.

New section 7 provides for the appointment of a lawyer to represent a child in proceedings. An appointment may be made in any case where the court has concerns for the safety or well-being of the child and considers that an appointment is necessary.

This differs from existing section 7, which requires the court to appoint a lawyer to represent a child in every parenting dispute that appears likely to proceed to a hearing unless it is satisfied that the appointment would serve no useful purpose.

Existing section 7(3) and (4), which are about what a lawyer appointed to represent a child may do, are dealt with in new section 9A of the Family Disputes (Resolution Methods) Act 1980 (inserted by clause 61).

New section 7A provides that a lawyer may act for a party to proceedings under the Act only in certain circumstances. These circumstances are where—

  • a proceeding has been commenced without notice:

  • a proceeding has been commenced under subpart 4 of Part 2 of the Act (international child abduction):

  • the party is the Crown:

  • a defended proceeding is to proceed to a hearing:

  • a child is a party to a proceeding and a lawyer has been appointed to represent the child.

New section 7A(6) defines act.

New section 7A(7) clarifies that new section 7A does not prevent a lawyer from giving legal advice to a party or preparing a document for a party.

Clause 6 amends section 8, which is the interpretation provision, to insert definitions of—

  • approved counselling organisation, counselling, and counsellor for the purposes of new sections 46E to 46H (inserted by clause 9); and

  • parenting information programme for the purpose of new section 47A (inserted by clause 10).

Clause 7 replaces section 40(1). New section 40(1) no longer enables a party to an agreement about the care or upbringing of a child to request counselling from the Family Court in respect of a dispute arising from that agreement.

Clause 8 repeals sections 44 to 46.

Section 44, which is about disputes between guardians, now appears as new section 46D (inserted by clause 9) but no longer enables guardians to request counselling in respect of guardianship disputes.

Section 45, which currently provides for parties to a parenting dispute to be referred to counselling, is not preserved.

Section 46, which is about reviewing a parent's or guardian's decision or refusal to give consent, now appears as new section 46C (inserted by clause 9) and is unchanged.

Clause 9 inserts new sections 46C to 46H.

New section 46C re-enacts existing section 46, which is repealed (by clause 8).

New section 46D replaces section 44, which is repealed (by clause 8).

New section 46E enables a Judge to refer to counselling parties to a guardianship or parenting dispute for the purposes of—

  • improving their relationship; and

  • encouraging compliance with a subsequent court order or direction.

A referral can, however, only be made if the Judge considers that counselling is the best means of fulfilling these purposes.

A direction to attend counselling may be made at any stage of the proceedings, but only once.

New section 46F sets out the duties of an approved counselling organisation to whom parties are referred under new section 46E.

New section 46G provides that evidence of a statement made by a party to a counsellor is not admissible in any court.

New section 46H provides that the fees and reasonable expenses incurred for counselling carried out under new section 46E are payable by the Crown.

Clause 10 inserts new sections 47A and 47B. Section 49 of the Act currently requires an application for a parenting order to include a statement about the involvement of other persons in the child's life. New section 47A re-enacts that requirement. New section 47B adds a requirement for another statement and evidence to support it. The new statement is required in applications for a parenting order and applications to vary a parenting order. The statement is that the applicant has undertaken a parenting information programme or that the applicant is not required to undertake a programme. If a Registrar considers that the evidence provided in support of the statement is not adequate, the Registrar may refuse to accept the application.

Clause 11 repeals section 48(4) to (6). These provisions are now dealt with in new sections 49 and 49A (inserted by clause 12).

Clause 12 replaces section 49 with new sections 49 and 49A.

New section 49 provides for the making of interim parenting orders. An interim parenting order may be made by the court at any time before a final parenting order is made.

New section 49A provides for the making of final parenting orders. A final parenting order must be made at the final Family Court hearing, unless made earlier during the proceeding with the consent of the parties.

Clause 13 repeals section 51(3), consequential on the amendments to section 48.

Clause 14 replaces section 57. New section 57 provides that parties to a final parenting order may subsequently obtain a variation of that order by filing in court a consent memorandum. Parties who agree to a variation will not have to file a formal application under section 56 and attend court.

Clause 14 also replaces sections 58 to 62. These provisions currently prevent a court from making an order giving a violent party day-to-day care of, or contact with, a child unless it is satisfied, after taking into account certain specified matters, that the child will be safe. The court may instead make an order for supervised contact between the child and the violent party. This regime is replaced by the simpler provisions of new sections 58 to 60.

New section 58 is an interpretation provision and defines approved provider and supervised contact.

New section 59 enables the court to make an order for supervised contact between a child and any person if it is not satisfied that the child will be safe with that person.

New section 60, which re-enacts existing section 62, deals with the cost of supervised contact.

Clause 15 repeals section 63, which is no longer relevant in view of the repeal of sections 65 to 67 (see clause 17) and new section 78 (see clause 19).

Clause 16 repeals section 64(2), which is not necessary.

Clause 17 repeals sections 65 to 67 so that counselling from the Family Court may no longer be requested by any of the following persons in relation to a dispute—

  • a party to a parenting order:

  • a party to a parenting agreement:

  • a guardian of a child.

Clause 18 amends the heading to section 69 and repeals section 69(1)(a). These amendments are consequential on the repeal of sections 65 and 66 (see clause 17).

Clause 19 replaces the offence provision in section 78. New section 78 is substantially the same as existing section 78 but provides that it is also an offence to intentionally contravene, or prevent compliance with, a guardianship order made under section 40 or new section 46D (inserted by clause 9).

Clause 20 replaces section 130, which provides for the appointment of a lawyer to assist the court in proceedings under the Act. New section 130 re-enacts existing section 130(1), but not existing section 130(2). The latter provision is dealt with in new section 9B of the Family Disputes (Resolution Methods) Act 1980 (inserted by clause 61).

Clause 21 amends section 131, which provides for payment of the fees and expenses of a lawyer appointed to represent a child or to assist the court. The substantive amendment is to section 131(1)(a), to refer to fees and expenses being determined in accordance with regulations made under new section 16D of the Family Disputes (Resolution Methods) Act 1980 (inserted by clause 66).

Clause 22 replaces section 133, which provides that the court may request the preparation of a cultural, medical, psychiatric, or psychological report on a child who is the subject of an application for guardianship or a parenting order. The new provisions—

  • limit the court's power to request reports:

  • enable the court, when requesting a report, to make directions regarding the child and parties meeting with the report writer:

  • limit the matters that may be covered in a court-requested psychological report:

  • prohibit the preparation and presentation of critiques of court-requested psychological reports or second reports on the same matters:

  • allow the court, in exceptional circumstances, to approve the preparation and presentation of critiques of court-requested psychological reports or second reports on the same matters.

Clause 23 amends section 134, which is consequential on the replacement of section 130 (see clause 20).

Clause 24 replaces section 135, which provides for the costs of reports requested under section 133. New section 135(1)(a) provides for the fees and reasonable expenses incurred in the preparation of a report requested under new section 133 to be determined in accordance with regulations made under new section 16D of the Family Disputes (Resolution Methods) Act 1980. New section 135(1)(b) provides that these fees and expenses are payable by the Crown. However, under section 135(2), the court must make an order under new section 135A unless the court declines to do so in accordance with that section.

New section 135A provides that the court must order the parties to refund a proportion of the amount paid by the Crown for the preparation of a report requested under new section 133. The proportion will be prescribed by regulations. The court may decline to make an order against a party if it is satisfied that it would cause serious hardship to the party or to a dependent child of the party. The new section sets out definitions of serious hardship and dependent child. Generally, the part-reimbursement of the fees will be shared equally by the parties. However, the court may set a different amount for a party, having regard to the circumstances of the case, including the conduct of the party.

New section 135B provides for the enforcement of orders requiring parties to refund the fees for the preparation of a report requested under new section 133. Such orders may be enforced in the same way as judgments of the court. The provision discontinues the requirement for a further order.

New section 135C authorises a Registrar to enter into an arrangement with a party who has an outstanding obligation to contribute towards the fees for the preparation of a report requested under new section 133. The arrangement may allow the party greater time to pay, or to pay by instalments.

Clause 25 amends section 137, which provides who may attend the hearing of a proceeding. Subsection (1)(b) is replaced as a consequence of new section 7A (inserted by clause 5), because parties will not always be represented at a hearing. Subsection (1)(c) is replaced as a consequence of new section 7 (inserted by clause 5) and new section 130 (inserted by clause 20). Subsection (4)(c) and (5) are repealed because of the repeal of section 138 (see clause 26).

Clause 26 repeals section 138, which provides for the attendance at hearings of persons involved in counselling. The repeal of sections 65 to 67 (see clause 17) makes section 138 redundant.

Clause 27 inserts new section 139A, which requires the leave of the court to be obtained if it is proposed to commence a proceeding for a parenting order, an order varying or discharging a parenting order, or an order resolving a guardianship dispute that is—

  • substantially similar to a previous proceeding; and

  • less than 2 years after the final judgment was given in that previous proceeding.

The leave of the court may only be given if, since the previous proceeding, there has been a material change in the circumstances of any party or any child who was the subject of the previous proceeding.

Clause 28 amends the heading to section 141 to better reflect the scope of that section.

Clause 29 amends section 147, which provides for the making of regulations. These are all consequential amendments. For example, a new power is inserted to make regulations prescribing the proportion of the amount paid by the Crown for the preparation of a report requested under new section 133 that parties must be ordered to refund under new section 135A (inserted by clause 24).

Clause 30 amends section 148(2). This amendment is consequential on the repeal of sections 66 and 69(1)(a).

Clause 31 amends section 152 to repeal the Care of Children Amendment Act 2008. Although there are a number of provisions in this Amendment Act relating to counselling and mediation that have not yet come into force, these provisions are not to come into force.

Clause 32 is a transitional provision for proceedings commenced under the Act before 1 October 2013 but not completed by that date. These proceedings are not affected by new section 7A (inserted by clause 5), new sections 135A to 135C (inserted by clause 24), or by the repeal of section 57 (see clause 14). Also, existing sections 58 to 62 and 147(2)(a) and (b) continue to apply in any of these proceedings in which an order for supervised contact has been made. Further, if in any of these proceedings counselling has been arranged or is in progress immediately before 1 October 2013, that counselling may continue (but not beyond 31 January 2014).

Part 2
Amendments to Domestic Violence Act 1995

Clause 33 provides that Part 2 amends the Domestic Violence Act 1995 (the Act).

Clause 34 amends section 2, which is the interpretation provision, to—

  • insert a definition of domestic violence support programme (which is a programme provided to a person protected by a protection order):

  • insert a definition of non-violence programme (which is a programme provided to a respondent or an associated respondent):

  • repeal the definition of programme (which is redundant because of the distinction now made between a domestic violence support programme and a non-violence programme):

  • replace the definitions of approved agency and programme provider (to take account of the new terms domestic violence support programme and non-violence programme).

Clause 35 amends section 3, which defines violence. The amendment adds to this definition, as a further type of psychological abuse, financial or economic abuse. Examples of this kind of abuse are denying or limiting access to financial resources, and preventing or restricting employment opportunities.

Clause 36 amends section 5, which is the object provision. The amendment is necessary because of the distinction now made between domestic violence support programmes and non-violence programmes.

Clause 37 replaces the cross-heading above section 29 so it is clear that section 29 is about the provision of domestic violence support programmes.

Clause 38 amends section 29 so that it refers appropriately to domestic violence support programmes.

Clause 39 repeals section 30, which provides for the commencement of section 29. Because all the provisions of section 29 have been in force since 1 July 1998, section 30 is now redundant.

Clause 40 replaces sections 31 to 35.

New section 31 provides that a protected person may attend a non-violence programme at which the respondent or an associated respondent is present, and that a respondent or an associated respondent may attend a domestic violence support programme at which a protected person is present. However, the following conditions must first be satisfied:

  • the protected person must agree; and

  • the respondent or associated respondent must agree; and

  • the programme provider must be satisfied that there are no safety issues; and

  • the programme provider is authorised to provide both kinds of programmes.

New section 32 requires the court, when making a protection order, to direct the respondent or associated respondent to attend a non-violence programme. It is different from existing section 32 in that rather than direct a respondent or associated respondent to attend a specific programme, the court must direct the respondent or associated respondent to—

  • undertake an assessment with a programme provider to determine the most appropriate non-violence programme; and

  • attend the non-violence programme determined to be the most appropriate.

New section 33 sets out the terms of a direction made under new section 32. It is different from existing section 33 in that the court no longer has a discretion to determine the details of a respondent's or an associated respondent's attendance at a non-violence programme. Instead, a respondent or an associated respondent will be directed—

  • to attend the programme for such number of sessions as the programme provider specifies; and

  • to attend the first session on the date and at the time and place advised by the programme provider.

New section 34 is substantially the same as existing section 34. After making a direction under new section 32, the Registrar must refer the respondent or associated respondent to a programme provider and notify the programme provider accordingly.

New section 35 requires a programme provider, after receiving a notification under new section 34, to arrange to meet with the respondent or associated respondent to undertake an assessment and determine the most appropriate programme for the respondent or associated respondent to attend. The programme provider must then provide the respondent or associated respondent with details of that programme and of the first attendance required.

New section 35A provides that a programme provider may request the Registrar to refer the respondent or associated respondent to a different programme provider. Such a request may be made if the programme provider believes that the programme is no longer appropriate for the respondent or associated respondent or that the respondent or associated respondent is not participating fully in the programme. On receipt of a request, the Registrar may refer the respondent or associated respondent to a different programme provider and notify that programme provider accordingly.

Clause 41 amends the heading to section 36 so that it refers to non-violence programmes.

Clause 42 repeals section 38. The effect of this is that there is no longer provision for a respondent or an associated respondent to be excused from attending a non-violence programme.

Clause 43 replaces sections 39 and 40. Currently, section 39 requires a programme provider to notify the Registrar within 7 days if a respondent or an associated respondent fails to attend any programme session. New section 39 requires a programme provider to notify the Registrar if a respondent or an associated respondent fails to undertake an assessment or to attend a programme in accordance with the terms of the direction. New section 40 requires a programme provider to notify the Registrar when a programme attended by a respondent or an associated respondent has concluded. The Registrar must then notify this fact to the applicant or to the applicant's lawyer.

Clause 44 repeals section 41, which is no longer required because of new section 35A (see clause 40).

Clause 45 amends section 41A, consequential on the repeal of section 41 (see clause 44).

Clause 46 replaces section 42 so that it applies only where a Registrar has brought a matter to the attention of a Judge under section 41A(1)(b).

Clause 47 repeals section 42A(2), which is no longer relevant because a variation of a direction cannot be requested under section 41 by a programme provider. Section 41 is repealed by clause 44.

Clause 48 inserts a new cross-heading above section 43, for clarity.

Clause 49 amends section 43(4) to replace references to programme with references to domestic violence support programmes or non-violence programmes, as appropriate.

Clause 50 inserts a new cross-heading above section 44, for clarity.

Clause 51 amends the offence provision in section 49. The maximum penalty for breaching a protection order is increased from 2 years' imprisonment to 3 years' imprisonment.

The amendment also clarifies that failing to attend an assessment or a non-violence programme is not a breach of a protection order.

Clause 52 replaces section 49A(1) so that it is an offence to fail to attend an assessment or a non-violence programme without reasonable excuse. The maximum penalty for this offence is 6 months' imprisonment or a fine up to $5,000.

Clause 53 amends section 81 so that subsections (2), (3), and (4) do not apply in respect of a lawyer appointed to assist the court, or to represent a child, in proceedings under the Act (new sections 9A and 9B of the Family Disputes (Resolution Methods) Act 1980 apply to such appointments). A new subclause (2A) is also inserted to deal with payment of the fees and expenses of a lawyer appointed to assist the court or represent a child.

Clause 54 makes consequential amendments to section 127, which is the regulation-making provision.

Clause 55 is a transitional provision for programmes arranged or in progress immediately before 1 October 2014, but not concluded by that date. The existing provisions of the Act continue to apply in respect of those programmes as if they had not been amended by this Bill.

Part 3
Amendments to Family Courts Act 1980

Clause 56 provides that Part 3 amends the Family Courts Act 1980.

Clause 57 repeals the statement that used to be known colloquially as the Long Title.

Clause 58 replaces the title Family Courts Act 1980 with the title Family Disputes (Resolution Methods) Act 1980. The purpose of the change in title is to change the focus of parties to family disputes and those who work with them. There will no longer be a Family Courts Act to which those involved can turn. Instead, there will be legislation that clearly indicates—

  • Family Courts are only 1 method for resolving family disputes:

  • family dispute resolution is the other method and it comes first.

To emphasise the primary position of family dispute resolution, the Bill inserts Part headings in the Act. Family dispute resolution is in new Part 1 (clause 60), Family Courts are in new Part 2 (clause 60), regulations and rules are in new Part 3 (clause 63), and amendments, transitionals, and savings are in new Part 4 (clause 66).

In addition to providing a re-focused title, clause 67 replaces the commencement provision with a new one incorporating references to the new measures introduced by the Bill.

Clause 59 amends the interpretation section to include definitions of terms associated with family dispute resolution.

Clause 60 inserts a purpose provision into the Family Disputes (Resolution Methods) Act 1980. The first 2 purposes concern family dispute resolution and the second 2 repeat the wording of the old Long Title.

Clause 60 then puts new Part 1 into the Act.

The new Part deals first with family dispute resolution providers. Family dispute resolution providers are people or organisations outside the core public sector who provide family dispute resolution services. The Secretary for Justice will enter a contract with however many of the people or organisations the Secretary decides are needed. The persons or organisations with whom the Secretary contracts are, in the definition of family dispute resolution provider in section 2, described as persons or organisations holding an approval granted by the Secretary. The Secretary's powers to grant, suspend, or cancel an approval are in new section 3B.

Under the contract, the providers will be paid by the Ministry of Justice to provide family dispute resolution services to parties with limited incomes. The civil legal aid income threshold will be used to determine which parties have limited incomes.

The providers will not be paid by the Ministry of Justice to provide family dispute resolution services to parties with incomes over the threshold. Those parties must make a private contract for family dispute resolution services and, of course, must pay for the services.

All parties to a dispute over their children, whatever their level of income, must use approved family dispute resolution providers if they wish to avoid the possibility of having family dispute resolution twice. Only the approved family dispute resolution providers will have the power to issue a form allowing the parties to take their family dispute to a Family Court. Parties who go to a non-approved family dispute resolution provider, do not resolve their family dispute at the family dispute resolution, and want to take their family dispute to a Family Court may not go to the court without first going to an approved family dispute resolution provider. Parties in this situation will thus have family dispute resolution twice—the first time by a non-approved family dispute resolution provider and the second time by an approved family dispute resolution provider. The way to avoid having family dispute resolution twice is by going to an approved family dispute resolution provider in the first place.

It is, of course, not the case that all parties to a dispute over their children must use approved family dispute resolution providers. Parties who settle their own family disputes do not have to go to approved family dispute resolution providers. Parties who go to a non-approved family dispute resolution provider and resolve their family dispute at the family dispute resolution do not have to go to an approved family dispute resolution provider. Parties who go to a non-approved family dispute resolution provider, do not resolve their family dispute at family dispute resolution, and do not want to take their family dispute to a Family Court do not have to go to an approved family dispute resolution provider.

It is worth repeating here that, for parties whose income is over the civil legal aid threshold, the family dispute resolution services will be provided under a private contract. That makes it inappropriate for the Bill to dictate all the details about the family dispute resolution process. Where it is appropriate for the Bill to dictate details is at the 3 points at which family dispute resolution services and the Family Court system intersect. Thus, the Bill mandates that an application under the Care of Children Act 2004 about a dispute between guardians or for a parenting order cannot be made without a form (new section 3D); that the family dispute resolution provider must provide a form (new section 3C); and that statements made by parties to family dispute providers are inadmissible in court (new section 3E).

The contract between the Secretary for Justice and the approved family dispute resolution providers will deal with the services that the Ministry is paying for and can contain as much or as little prescription about family dispute resolution as the contracting parties agree on.

The contract between a private client and an approved family dispute resolution provider will deal with the services that the client is paying for. What the services are will depend on what the private client is able and willing to pay for.

Clause 61 inserts 2 new provisions.

New section 9A sets out the role of a lawyer appointed to represent a child or young person in proceedings in the Family Court under any Act. The role of the lawyer is to—

  • act for the child or young person in a way that the lawyer considers promotes the child's welfare and best interests:

  • ensure that the views of the child or young person are communicated to the court:

  • assist the parties to reach agreement to the extent that to do so is in the best interests of the child or young person:

  • provide advice to the child or young person:

  • do anything else required by or under any other Act.

New section 9B sets out the role of a lawyer appointed to assist the court in proceedings in the Family Court under any Act. The role of the lawyer is to—

  • provide independent legal advice to the court on any complex factual or legal issue requested by the court:

  • offer an impartial perspective in relation to any issue arising in the proceedings:

  • do anything else required by or under any Act.

Clause 62 inserts a new section 12A to combine, unify, and expand provisions about admissible evidence in Family Courts, provisions currently found in the Adoption Act 1955, Care of Children Act 2004, Child Support Act 1991, Children, Young Persons, and Their Families Act 1989, Domestic Violence Act 1995, Family Proceedings Act 1980, Property (Relationships) Act 1976, and Protection of Personal and Property Rights Act 1988.

The legal position is that the admissibility of evidence is determined initially by the Evidence Act 2006. The legal position is stated in the Evidence Act 2006. The expansion referred to in the previous paragraph that new section 12A makes is to state the legal position again so that in future it will appear in both the Evidence Act 2006 and the Family Disputes (Resolution Methods) Act 1980.

Clause 63 inserts a new Part 3 heading after section 16.

Clause 64 provides for the making of regulations about family dispute resolution.

Clause 65 amends the heading of section 16B, the current provision on regulations, to make it clear that the provision deals only with court fees. It also removes a regulation-making power about Senior Family Court Registrars that is no longer necessary because there are no Senior Family Court Registrars, and it is no longer intended that there be Senior Family Court Registrars.

Clause 66 inserts a new section 16D in the Family Disputes (Resolution Methods) Act 1980. The new section provides powers to make regulations on payments to professional people working in the Family Courts. The professionals affected are people appointed as lawyers for children or lawyers to assist the court and people who prepare specialist reports on children.

The Acts that provide for the appointment of lawyers for children and lawyers to assist the court are the Care of Children Act 2004, Child Support Act 1991, Children, Young Persons, and Their Families Act 1989, Domestic Violence Act 1995, Family Proceedings Act 1980, Property (Relationships) Act 1976, and Protection of Personal and Property Rights Act 1988. Each Act currently contains powers to make regulations prescribing the lawyers' fees and expenses.

New section 16D(1) to (6) combine, unify, and expand the powers. The expansions allow the making of regulations—

  • setting a minimum or maximum number of hours for which fees will be paid:

  • providing for the Family Court, in extreme cases, to allow increases in maximums set in regulations:

  • specifying the kinds of expenses that will be reimbursed.

The fact that a regulation-making power is available—for example, a power to set a maximum number of hours for which fees will be paid—does not mean that regulations using that power must be made for all the Acts. It may be that setting a maximum number of hours for which fees will be paid is an appropriate measure only for proceedings under, say, the Care of Children Act 2004. Generally speaking, however, consistency in the expression and implementation of family law would help make all court proceedings understandable, simple, transparent, and timely.

The Acts that provide for the preparation of specialist reports on children are the Care of Children Act 2004 and the Children, Young Persons, and Their Families Act 1989. The Acts do not currently contain powers to make regulations prescribing report writers' fees and expenses.

New section 16D(7) to (9) provide power for regulations to be made prescribing the fees and expenses of persons who prepare reports under the Care of Children Act 2004 (but not under the Children, Young Persons, and Their Families Act 1989).

Clause 67 adds amendments to section 17. Most of the amendments simplify family law by removing provisions that have been combined and unified.

Clause 68 inserts a new section 17A to repeal provisions that are no longer needed.

Clause 69 amends the heading of section 18 to make it clear that the section deals with transitional matters for measures introduced in 1980.

Part 4
Amendments to Legal Services Act 2011

Clause 70 provides that Part 4 amends the Legal Services Act 2011 (the Act).

Clause 71 amends section 7, which provides that legal aid may be granted for proceedings in a Family Court. The amendment inserts 3 new subsections in section 7. The effect of new subsections (3A) and (3B) is to limit the availability of legal aid in proceedings under the Care of Children Act 2004 in the Family Court. In general, legal aid will be available if a lawyer may, under new section 7A of the Care of Children Act 2004, act in those proceedings for the party (not being the Crown). However, legal aid will not be available in proceedings commenced under the Act on an application made without notice that—

  • affects the applicant only; or

  • is in respect of a routine matter; or

  • does not affect the interests of any other person.

Legal aid may also be granted for legal advice given to a party to proceedings who has been directed by a Judge to obtain legal advice before consenting to an order settling the issues in dispute.

New subsection (6) provides that new subsections (3A) and (3B) do not apply in respect of any proceedings commenced under the Care of Children Act 2004 before 1 October 2013.

Part 5
Amendments to other Acts

Subpart 1 Amendments to Child Support Act 1991

Clause 72 provides that subpart 1 of Part 5 amends the Child Support Act 1991 (the Act).

Clause 73 replaces section 226, which provides for the appointment of a barrister or solicitor to assist the court or represent children in proceedings under the Act.

There are 3 new provisions—

  • new section 226, dealing with the appointment of a lawyer to represent children in proceedings under the Act; and

  • new section 226A, dealing with the appointment of a lawyer to assist the court in proceedings under the Act; and

  • new section 226B, dealing with the fees and expenses of a lawyer appointed under either new section 226 or new section 226A.

The new provisions refer to lawyer rather than to barrister or solicitor and simplify the wording of section 226, having regard to new sections 9A, 9B, and 16D of the Family Disputes (Resolution Methods) Act 1980 (inserted by clauses 61 and 66).

Clause 74 repeals section 235(1)(d) because the power to make regulations relating to the fees and expenses of court-appointed lawyers is now set out in new section 16D of the Family Disputes (Resolution Methods) Act 1980 (inserted by clause 66).

Subpart 2 Amendments to Children, Young Persons, and Their Families Act 1989

Clause 75 provides that subpart 2 of Part 5 amends the Children, Young Persons, and Their Families Act 1989 (the Act).

Clause 76 amends section 137, which sets out the orders and directions that a court may make after considering a report filed under section 135 and an accompanying revised plan prepared in relation to a child or young person. The purpose of the amendment is to clarify that the court need not give any person the opportunity to be heard before making an order or direction under this section.

Clause 77 amends section 159, which provides for the appointment of a barrister or solicitor to represent a child or young person in proceedings under the Act. References to barrister or solicitor are replaced with references to lawyer.

Clause 78 replaces sections 160 and 161.

New section 160, which provides for the appointment of a lawyer to assist the court in proceedings under the Act, re-enacts existing section 160, but refers to a lawyer instead of a barrister or solicitor.

New section 161, which sets out further provisions relating to the appointment of a lawyer to represent a child or young person or to assist the court, re-enacts existing section 161, but simplifies it, having regard to new sections 9A and 9B of the Family Disputes (Resolution Methods) Act 1980 (inserted by clause 61).

Clause 79 amends section 162, which provides for the payment of the fees and expenses of a lawyer appointed under section 159 or new section 160. References to barrister or solicitor are updated and reference is made to the new regulation-making power in new section 16D of the Family Disputes (Resolution Methods) Act 1980 (inserted by clause 66).

Clause 80 inserts 2 new provisions.

New section 206A requires the leave of the court to be obtained if it is proposed to commence a proceeding—

  • substantially similar to a previous proceeding; and

  • less than 2 years after the final judgment was given in that previous proceeding.

The leave of the court may only be given if, since the previous proceeding, there has been a material change in the circumstances of any party or any child or young person who was the subject of the previous proceeding.

New section 206B provides that the court may dismiss a proceeding relating to the care and protection of a child or young person if it is satisfied that—

  • the continuation of the proceeding is contrary to the welfare and best interests of the child or young person; or

  • the proceeding is frivolous or vexatious or an abuse of the process of the court.

This provision is substantially the same as section 140 of the Care of Children Act 2004.

Clause 81 repeals the regulation-making power in section 447(e)(i) relating to the amounts payable to a lawyer appointed to represent a child or young person or to assist the court. The regulation-making power in respect of these amounts is now in new section 16D of the Family Disputes (Resolution Methods) Act 1980 (inserted by clause 66).

Subpart 3 Amendments to Family Proceedings Act 1980

Clause 82 provides that subpart 3 of Part 5 amends the Family Proceedings Act 1980 (the Act).

Clause 83 amends section 2, which is the interpretation provision, to repeal definitions that are no longer required.

Clause 84 repeals section 5 as a consequence of the repeal of Part 2 of the Act (see clause 85).

Clause 85 repeals Part 2 of the Act (dispute resolution). The effect of this is that the Family Court will no longer arrange counselling for—

  • parties to a marriage, civil union, or de facto relationship in respect of their relationship:

  • parties to an application for a separation order in respect of that application:

  • parties to an application for a parenting order in respect of the issue in dispute.

Also, there will no longer be mediation conferences (Judge-led mediation attended by the parties). Furthermore, lawyers and the court will no longer have a duty under the Act to promote conciliation and reconciliation.

Clause 86 amends section 160(1), which provides that an application under the Family Proceedings Act 1980 may be joined with an application under the Care of Children Act 2004.

Because parties to an application under the Care of Children Act 2004 will not always be represented by a lawyer (see new section 7A of the Care of Children Act 2004, inserted by clause 5), it will not be possible for such applications to be joined with applications under the Family Proceedings Act 1980, in which parties are represented. Section 160(1) is therefore amended so that separate applications will need to be filed. However, under section 160(2), such applications can continue to be heard and determined together.

Clause 87 replaces section 162, which provides for the appointment of a barrister or solicitor to assist the court or represent children in proceedings under the Act.

There are 3 new provisions—

  • new section 162, dealing with the appointment of a lawyer to represent children in proceedings under the Act; and

  • new section 162A, dealing with the appointment of a lawyer to assist the court in proceedings under the Act; and

  • new section 162B, dealing with the fees and expenses of a lawyer appointed under either new section 162 or new section 162A.

The new provisions refer to lawyer rather than to barrister or solicitor and have regard to new sections 9A, 9B, and 16D of the Family Disputes (Resolution Methods) Act 1980 (inserted by clauses 61 and 66).

Clause 88 amends section 165(4) to refer to lawyer rather than to barrister or solicitor, and also to take account of new section 9A(4)(b) of the Family Disputes (Resolution Methods) Act 1980 (inserted by clause 61).

Clause 89 repeals the regulation-making power in section 187(a), (ca), (cb), and (cc) in consequence of the repeal of Part 2 of the Act and new section 16D of the Family Disputes (Resolution Methods) Act 1980 (inserted by clause 66).

Clause 90 is a transitional provision to provide for the commencement or continuation (between 1 October 2013 and 31 January 2014) of counselling or mediation arranged, but not commenced or completed, before this Bill comes into force.

Clause 91 amends Schedule 2 to include repeal of the Family Proceedings Amendment Act 2008.

Although there are a number of provisions in this Amendment Act relating to counselling and mediation that have not yet come into force, these provisions are not to come into force.

Subpart 4 Amendments to Property (Relationships) Act 1976

Clause 92 provides that subpart 4 of Part 5 amends the Property (Relationships) Act 1976 (the Act).

Clause 93 repeals section 22(3) to (5), which provide for the transfer of proceedings to the High Court. This matter is now dealt with in new section 38A (inserted by clause 95).

Clause 94 amends section 37A(2), which provides for the payment of the fees and expenses of a lawyer appointed to represent a child in proceedings under the Act. Paragraph (a) is replaced to refer to the new regulation-making power for these fees and expenses in new section 16D of the Family Disputes (Resolution Methods) Act 1980 (inserted by clause 66).

Clause 95 inserts new section 38A.

New section 38A provides for the transfer of proceedings to the High Court. It is substantially the same as existing section 22(3) to (5), but enables a Family Court Judge to order the transfer of proceedings in any case where the Judge is satisfied that the High Court is the more appropriate venue. Complexity of the proceedings or of a question in issue in the proceedings is not the only matter that a Judge may have regard to in considering whether to make a transfer order.

Clause 96 repeals the regulation-making power in section 53(2A)(a) as a consequence of new section 37A(2)(a) (inserted by clause 94).

Subpart 5 Amendments to Protection of Personal and Property Rights Act 1988

Clause 97 provides that subpart 5 of Part 5 amends the Protection of Personal and Property Rights Act 1988 (the Act).

Clause 98 amends section 65 to refer to lawyer rather than to barrister or solicitor. Section 65(3), which provides for the appointment of a barrister or solicitor to assist the court, is repealed. This matter is now dealt with in new section 65A (inserted by clause 99).

Clause 99 inserts new section 65A, which provides for the appointment of a lawyer to assist the court in proceedings under the Act. New sections 9B and 16D of the Family Disputes (Resolution Methods) Act 1980 (inserted by clauses 61 and 66) will apply in respect of an appointment under new section 65A.

Clause 100 amends section 76 to refer to lawyer rather than to barrister or solicitor, and also to refer to new section 65A (inserted by clause 99).

Clause 101 amends section 78, consequential on new section 9B(2)(b) of the Family Disputes (Resolution Methods) Act 1980 (inserted by clause 61).

Clause 102 amends section 79, to refer to new section 65A (inserted by clause 99).

Clause 103 amends section 88, to take account of new section 65A (inserted by clause 99).

Clause 104 updates the terminology of section 112, which is the regulation-making provision.