In New Zealand, Family Court Associates play a key role in the family law system. Introduced under the Family Court (Family Court Associates) Legislation Act 2023, these judicial officers are designed to reduce the workload of Family Court Judges. By handling less complex cases and administrative tasks, Family Court Associates help speed up family law proceedings, making the process more efficient for everyone involved.
This insight explores the role and powers of Family Court Associates, how they differ from Family Court Judges, and how they contribute to the overall functioning of the Family Court.
What is the difference between Family Court Associates and Family Court Judges?
Although both Family Court Associates and Family Court Judges are judicial officers, their roles and responsibilities differ significantly. While both are addressed as “Your Honour” and wear judicial gowns, the powers of Family Court Associates are more limited than those of a Family Court Judge.
Family Court Judges hold the highest authority in the Family Court. They handle the most complex and contested cases, particularly those that require detailed legal analysis or a final decision after a full hearing. Family Court Judges are responsible for overseeing final hearings and making binding decisions on challenging and often high-stakes matters.
In contrast, Family Court Associates primarily manage early-stage proceedings. Their responsibilities include organizing case schedules, triaging cases, and addressing or resolving less complicated issues. By handling these tasks, Family Court Associates help streamline the Family Court process while also allowing Family Court Judges to focus on the more complex cases.
What powers do Family Court Associates have?
Family Court Associates play a crucial role in helping the Family Court system run smoothly. Below are some of the key powers and duties they hold:
1. Making directions to progress applications: Family Court Associates have the authority to issue directions that help move cases forward. For example, under the Care of Children Act 2004, many cases are classified as “standard track” applications. These typically involve non-urgent matters, such as decisions regarding a child’s schooling or other guardianship concerns. Before these cases can be filed, parents or guardians are usually required to attend a parenting information programme, such as the Parenting Through Separation course, and attempt to resolve the issue through Family Dispute Resolution. Family Court Associates can check whether these procedural requirements have been met and issue directions for the case to proceed. If multiple related applications are filed involving the same child, they may consolidate all applications into a single ongoing case, which helps reduce administrative delays and keeps the process moving. These are just a few examples of the types of directions a Family Court Associate can issue. There are many other directions they can make to ensure the timely progression of a case.
2. Appointing lawyers: In some family law cases, vulnerable parties need legal representation to ensure their rights are protected. Family Court Associates have the power to appoint lawyers in certain situations. For example, under the Care of Children Act 2004, they may appoint a lawyer to represent a child. Family Court Associates can also appoint legal counsel to assist in other scenarios, such as in situations where a party is unrepresented and needs assistance to understand a complex report.
3. Directing specialized reports: Family Court Associates can direct the preparation of specialized reports to support family law decisions. These reports might include cultural, medical, psychiatric, or psychological evaluations. For example, if a child refuses to see a parent, a Family Court Associate might order a psychiatric report to understand the reasons behind the child’s reluctance. As another example, under the Protection of Personal and Property Rights Act 1988, a Family Court Associate may request medical reports to assess whether someone can manage their own personal or property matters. Overall, directing specialized reports helps inform the court’s decisions at a final hearing, ensuring that the child’s or vulnerable person’s best interests are prioritized.
4. Convening judicial and settlement conferences: Family Court Associates can convene judicial conferences, where they meet with parties and their lawyers to discuss the case and issue directions that help the case progress. These conferences can be held in person, by video, or by phone and typically last between 15 and 45 minutes. In addition to judicial conferences, Family Court Associates can also lead settlement conferences, which are similar to mediations. These conferences aim to help both parties reach an agreement without the need for a full hearing. If an agreement is reached, Family Court Associates can issue consent orders to resolve the case efficiently.
5. Granting orders or declarations by consent, or where undefended: As noted above, Family Court Associates can grant orders by consent. Mostly, their ability to grant consent orders relates to consent orders made under the Care of Children Act. However, Family Court Associates can also grant consent orders under other Acts, such as the Property (Relationships) Act 1976, where interim orders regarding the sale of relationship property can be made by Family Court Associates by consent. They may also grant paternity orders by consent, and make orders under the Protection of Personal and Property Rights Act 1988 by consent. Additionally, Family Court Associates can issue declarations, such as recognizing a person as a step-parent under the Child Support Act 1991, or declaring paternity under the Status of Children Act 1969, in undefended applications.
6. Granting orders, even if defended: In certain scenarios, Family Court Associates are granted the same powers as Family Court Judges to make orders, even if those orders are opposed. For instance, Family Court Associates can decide applications for a departure from formula assessments under the Child Support Act 1991, typically sought to adjust child support payments. As another example, Family Court Associates can also grant orders preventing a child’s removal from New Zealand under the Care of Children Act 2004 even without consent of all parties.
7. Determining costs: Family Court Associates can also make decisions about costs in family law cases. Under the Property (Relationships) Act 1976, for example, the losing party may be ordered to pay costs. The amount awarded depends on the complexity of the case and how the parties have behaved during the proceedings.
What jurisdictional limitations apply to Family Court Associates?
While Family Court Associates have a significant role that should not be underestimated, their powers are not as broad as those of Family Court Judges. The jurisdictional limitations that apply to Family Court Associates exist to underline their role as facilitators and managers rather than decision-makers in complex or contested matters. Below are some of the key jurisdictional limitations that apply to Family Court Associates:
1. No jurisdiction to determine complex childcare cases: The Oranga Tamariki Act 1989 deals with children that are placed in state care, or are involved with Oranga Tamariki. Generally speaking, cases under this Act involve serious and complicated circumstances. Family Court Associates are only authorized to handle “place of safety” warrants under this Act. All other cases under this Act are otherwise left to Family Court Judges. Additionally, Family Court Associates are not allowed to handle cases under the Care of Children Act 2004 that are deemed “complex proceedings,” which are specifically reserved for Family Court Judges.
2. Limited jurisdiction to determine without notice applications: Family Court Associates generally do not have the authority to make orders on a without notice basis, except in certain limited circumstances. “Without notice” applications are urgent matters where one party is seeking a decision without notifying the other party, often due to the need for immediate protection or relief. Such applications are usually handled by Family Court Judges, as they require careful consideration of the urgency and the potential impact on the parties involved. Family Court Associates may only make orders without notice in limited scenarios, as and where permitted by the relevant piece of legislation. For example, as noted above, Family Court associates can issue warrants on a without notice application in certain scenarios.
3. Limited jurisdiction to determine defended applications: Family Court Associates are not allowed to hear or determine defended applications unless specifically authorized by legislation. In the section above outlining their powers, we’ve touched on some of the limited scenarios where a Family Court Associate can hear and determine a defended application. As a further example, Family Court Associates cannot determine applications for protection orders, which need to be dealt with by a Family Court Judge.
4. Other limitations: There are several limitations on a Family Court Associate’s powers compared to those of a Family Court Judge. For example, a Family Court Associate cannot order the release of a child’s evidential interviews with the police for use in a civil proceeding. Under evidence regulations, however, a Family Court Judge has the authority to order the release of this information. A Family Court Judge may grant the release to review what the child informed the police, allowing the interview to be used as evidence in court without directly questioning the child, which is often avoided to protect the child’s well-being. This distinction underscores the broader powers of a Family Court Judge as compared to a Family Court Associate, particularly in complex and sensitive matters.
Conclusion
Family Court Associates play a vital role in the Family Court system by reducing the workload of judges and helping to streamline the resolution of family law matters. They are essential for managing early-stage proceedings, triaging cases, and helping parties reach agreements without the need for lengthy hearings. However, it is important to understand the scope of their powers and limitations before heading to court.
If you are navigating a family law matter, it’s crucial to have professional guidance. Fixed offers expert advice and support through the Family Court process, ensuring you understand your rights and options. Contact us today for a free initial consultation to learn how we can help with your case.