Judge’s magic words
Retired Judge Oke Blaikie presided over the Family Court in Dunedin for nearly 18 years and says he witnessed families battling through the most stressful of circumstances, barely able to share a civil word. But he says the court process was helped when l
Blaikie retired in 2003.
Reforms in 2014 mean couples in custody disputes are not represented in court by a lawyer unless it’s through a ‘‘without notice’’ application.
‘‘Without notice’’ applications are urgent applications which give a judge information from one party only, and were designed for cases where there were allegations of violence.
Once a judge has received the application, they can make an interim or temporary order about custody, and then give the other party a chance to respond.
While initially these only accounted for 30 per cent of applications – with the parties both given a chance to state their case before any orders, temporary or permanent, were made, now it’s a complete reversal.
Recent reports released by the Ministry of Justice have revealed 70 per cent of applications begin on the ‘‘without notice’’ track.
It’s prompted Justice Minister Andrew Little to propose a review of the Family Court as he’s concerned the over-representation of ‘‘without notice’’ applications are clogging up the system.
He’s also been given indications they are being used not for just for urgent matters, but instead to get custody orders in front of a judge quickly, give otherwise limited access to legal aid for applicants, and ensure legal representation.
Judge Blaikie said when he was a serving judge, he encouraged ‘‘without notice’’ applications when protection orders were sought because those suffering abuse shouldn’t have problems ‘‘time-wise’’ in getting assistance from the court.
But if people were using them to fast-track mere custody matters, or simply to secure legal representation, that was a concern, particularly if it meant the process for genuinely urgent matters was delayed.
‘‘There can be a problem if issues start off as ‘without notice’,’’ he said.
‘‘A court then makes a decision on the papers, and it could be a decision regarding the contact the other parent has with the children.
‘‘That decision could be a wrong one and that whole matter turns nasty and sour.
‘‘Instead, it was better to have lawyers seeking to find common ground between their clients, find elements that could be decided ‘‘by agreement’’ and encourage communication.
He said the overriding consideration was always what was best for the children, and this was fundamental no matter what regulations or practices were in force at the time. Where there is a dispute if the parties are able to agree then they can enter an oral or written agreement.
If no agreement can be reached if delay caused by making an application to the court on notice would or might entail serious injury or undue hardship or risk to the personal safety of the applicant or any child of the applicant’s family, or both then the applicant may engage a lawyer to represent him or her and may file an application in the court without notice to the other family.If there are no safety issues referred to above then:
The parents may engage a Family Legal Advice Service lawyer to give them basic legal advice regarding parenting matters The initiating parent may request a mediation through family dispute resolution. This may assist the parties to resolve the dispute. If the other party doesn’t agree to attend mediation the matter is screened by an FDR provider as inappropriate for mediation or the parties can’t reach an agreement at mediation then the parties may apply to court. The party applying to the court but must have completed the PTS (Parenting Through Separation) course prior to filing the proceedings (and the other party will also be required to attend the course). The parents are not allowed a lawyer to represent them unless or until the court directs they may have legal representation.