Explanatory note
This Supplementary Order Paper makes various amendments to the Family Court Proceedings Reform Bill. Some are minor or technical amendments, which are general drafting refinements and improvements. Other amendments are of a more substantial nature and are listed below.
Payments to professionals
The provisions in the Bill relating to the fees and expenses of a lawyer appointed to represent a child, a lawyer appointed to assist the court, and a person appointed under the Care of Children Act 2004 to write a report are amended as follows:
if no regulations are made determining the fees and expenses payable to a lawyer appointed to represent a child or to assist the court, the fees and expenses are determined by the Registrar of the court:
if no regulations are made determining the fees and expenses payable to a person appointed under the Care of Children Act 2004 to prepare a cultural, medical, psychiatric, or psychological report, the fees and expenses are determined by the Registrar of the court:
the provisions not yet in force in the Care of Children Amendment Act 2013, the Child Support Amendment Act (No 2) 2013, and the Family Proceedings Amendment Act 2013 requiring the court to order parties to contribute toward the costs of a lawyer appointed to represent a child (other than in cases of serious hardship) are integrated with related provisions of this Bill to avoid discord between the various amendments (and those Amendment Acts are repealed):
the court may not order the parties to contribute toward the fees and expenses of a lawyer appointed to assist the court if the lawyer was appointed to provide independent advice on any complex legal issue:
the provisions enabling a Registrar to enter into an arrangement with a party for the payment of cost contributions are deleted.
(See clauses 21 and 24, new sections 131 and 135 to 135C of the Care of Children Act 2004; clause 53(2), new section 81(2A) of the Domestic Violence Act 1995; clause 73, new sections 226B to 226E of the Child Support Act 1991; clause 79, new section 162 of the Children, Young Persons, and Their Families Act 1989; clause 87, new sections 162B, 162C, and 162E of the Family Proceedings Act 1980; clause 94, new section 37A(2)(a) of the Property (Relationships) Act 1976; clause 99, new section 65B of the Protection of Personal and Property Rights Act 1988).
Appeals
Section 143 of the Care of Children Act 2004, section 120 of the Child Support Act 1991, and section 174 of the Family Proceedings Act 1980, which afford rights of appeal to the High Court, are amended. The amendments provide that no appeal may be made to the High Court in respect of a decision by a court to appoint, or direct a Registrar to appoint, a lawyer to represent a child or assist the court. Additionally, in proceedings under the Care of Children Act 2004, no appeal may be made in respect of a decision by a court to request a person to write a cultural, medical, psychiatric, or psychological report, or in respect of a direction that parties may or may not be represented at a settlement conference (clause 28B(2) and (3), new section 143(3A); clause 72A, new section 120(1AA); clause 88AB, new section 174(1A)).
Amendments to Care of Children Act 2004
The provisions in Part 1 of the Bill relating to the Care of Children Act 2004 are amended as follows:
a Family Court Judge may, only on 1 occasion during a proceeding under the Care of Children Act 2004, direct that—
the parties attend family dispute resolution (clause 9, new section 46D(4)):
a settlement conference be convened (clause 9, new section 46K):
the maximum number of counselling sessions is to be determined by regulations or, if no regulations are made, by the Registrar of the court (clause 9, new section 46GA; clause 29, new section 147(2)(ada)):
fees and expenses of counsellors are to be determined by regulations or, if no regulations are made, by the Registrar of the court (clause 9, new section 46H; clause 29, new section 147(2)(ae)):
on the direction of a Judge, an interim parenting order becomes a final parenting order on its expiry if a party or the lawyer appointed to represent the child (if any) does not wish to be heard (clause 12, new section 49AB):
provision is made for certain forms to be approved by the Secretary for Justice instead of being prescribed in the Family Courts Rules 2002 (clauses 6(2), 6A, 13A, 19A, 19B, and 28D).
Family dispute resolution
The provisions in Part 3 of the Bill relating to family dispute resolution are amended as follows:
the approval of an organisation as an approved dispute resolution organisation may be made subject to terms and conditions (clause 58(3)):
the appointment of an FDR provider by an approved dispute resolution organisation continues during any period that the organisation's approval is suspended (clause 59A(1)):
the appointment of an FDR provider by an approved dispute resolution organisation continues for a period of 6 months after that organisation's approval is cancelled (clause 59A(2)):
the appointment of an FDR provider may be suspended or cancelled on prescribed grounds (clauses 60AA and 60E(da)):
dispute resolution forms will not be prescribed but will be approved by the Chief Executive of the Ministry of Justice (clause 56, definition of family dispute resolution form, amended, and clause 60E(e) deleted).
Amendment to Legal Services Act 2011
Legal aid will not be available to a person proposing to commence proceedings under the Care of Children Act 2004, or to a respondent in such proceedings who is preparing a notice of intention to appear or notice of defence (clause 71(1), new section 7(3A)(c) deleted).
Departmental disclosure statement
The Ministry of Justice considers that a departmental disclosure statement is not required to be prepared for this Supplementary Order Paper.