What are the main types of Care of Children Act 2004 (COCA) applications?
Under the COCA, you can apply for parenting orders, which set out who will have day-to-day care and how often the children will see their parents or whānau. You can also apply for guardianship orders, which appoint someone to be consulted and make decisions alongside other guardians about a child’s upbringing, education, and healthcare. Additionally, you can apply to resolve disputes between guardians, such as disagreements over a child’s medical treatment.
You can also apply for other orders under the COCA, such as changing the terms of an existing order. This guide focuses on the most common COCA applications, related to parenting orders and guardianship orders.
What types of orders are made under the COCA?
There are two main types of court orders under the COCA:
- Interim Orders: Temporary orders that remain in force until varied, or until a final order is made.
- Final Orders: Long-term orders made after a court hearing. For example, once a final parenting order is issued, it cannot be changed within two years unless the court gives permission, or leave, to file an application to vary it. After two years, an application to vary a final order can be made without leave.
How do you apply for an urgent interim order?
If a child faces imminent serious risk, you can file an urgent application for an interim order, also known as a “without notice” application. This is decided by a judge within 48 hours of submission, without notifying the other parent or party first. If granted, the interim order stays in effect until varied.
What happens after the judge considers the urgent interim order application?
After the judge considers the urgent application, whether granted or not, the application and supporting evidence are served on the other parent or party, who can then respond. Once they respond, the case follows the usual Family Court process, leading to a final order, which is typically made by agreement or, if no agreement is reached, after a final hearing where the judge makes the decision.
Why is it necessary to apply for an urgent interim order?
Since it can take several months to schedule a final hearing, applying for an interim order can be crucial to establish temporary arrangements while awaiting the final outcome of the case. It is common to apply for an urgent interim parenting order to set up the child’s care and contact arrangements. Usually, the proceedings begin by one parent filing an urgent application, with the other parent being served after the judge has determined the application.
What must be shown to successfully obtain an urgent interim order?
To apply for an urgent interim order on a without notice basis, the applicant must demonstrate serious circumstances requiring immediate attention, typically involving safety concerns for a child. Examples include exposure to violence, neglect, drug use, or serious mental health issues. If there is strong evidence of these or other safety issues, the court may issue an urgent without notice interim parenting order to limit the care or contact of the parent presenting these issues, until the situation can be fully assessed. The without notice interim parenting order may also place the child in the care of the other parent or another party, such as a concerned grandparent, to ensure the child’s safety.
The COCA encourages both parents to be involved in their child’s life, so urgent interim orders are only granted when serious issues arise. Judges are cautious about granting these orders without hearing from the other party first. Applicants must present a strong case, providing all relevant facts, even those that may not support their case, to help the court make a fair decision.
Can I apply for an order if there is no urgent safety concern?
Yes. Most applications are filed “on notice,” meaning you serve the other parent with your application first, giving them time to respond before any orders are made. This is appropriate when you want to resolve issues like changing care arrangements or addressing other parenting matters, but there is no immediate need for an urgent interim order. For example, if one parent wants to modify existing care arrangements but the other parent disagrees, they can apply to the Family Court “on notice” and provide evidence explaining why the change is in the children’s best interests.
Are there any steps I need to take before filing “on notice”?
Yes. Before filing “on notice,” you typically need to attempt Family Dispute Resolution (FDR) to resolve the dispute. However, if there has been family violence, you may be exempt from attending mediation. Additionally, for some “on notice” applications, you may also need to attend the “Parenting Through Separation” course before being eligible to submit an application.
In comparison, you do not need to attend FDR or the “Parenting Through Separation” course when applying without notice, as you are exempted from attending where the situation is urgent.
What happens after I file my application “on notice”?
After you file an application “on notice,” the Family Court Registry will process the application and issue directions within a few weeks. Unlike an urgent without notice application, an “on notice” application is not immediately reviewed by a judge for an interim order. Instead, the “on notice” application moves through the Family Court system, eventually leading to a hearing or judicial settlement conference before any orders are made.
What can I expect from the Family Court process?
Regardless of whether you file a “without notice” or “on notice” application, the Family Court process will involve several steps:
- When does the other party respond?
The other parent or party (respondent) will be notified of the application and given time to respond. In a “without notice” application, they can only respond after the judge considers the urgent request for an interim order. Typically, the respondent has between 7-21 days to respond, depending on the urgency of the case. Their time to respond starts after being served with the application and necessary Family Court paperwork. - How is a lawyer for child appointed?
In virtually all cases, whether started by an “on notice” or “without notice” application, the Family Court Registry will appoint a lawyer to represent the child or children involved. This lawyer will meet with the children and file a report on what they believe is in the children’s best interests. If the children are old enough, their views will be shared with the Family Court by way of this report, though their wishes are not binding. - When can I expect my first court appearance?
About one to two months after filing your “on notice” or “without notice” application, a conference will usually be scheduled. This first conference is typically short, lasting between 15-30 minutes. It will focus on moving the application toward resolution, identifying disputed issues, determining witnesses, and setting a timeline for a judicial settlement conference or hearing. - What is a judicial settlement conference?
A judicial settlement conference is a confidential mediation with the judge. The judge will review the evidence and provide insights on the likely outcome, helping the parties reach a compromise. This often results in an agreement without needing a more contentious court hearing. At the first 15-30 conference mentioned above, the parties can seek for a judicial settlement conference to be allocated instead of a hearing, if they think they may be able to negotiate an agreement with the help of a judge. - What happens if we cannot reach an agreement?
If an agreement is not possible, a hearing will be scheduled. A hearing involves questioning witnesses, and the judge making a decision to resolve the dispute, which usually sees the judge making an order. Court hearings can be unpredictable, costly and contentious, so they should be avoided if possible.
How does the judge make COCA orders and decisions?
In any COCA matter, the child’s welfare and best interests are the top priority. When making orders and decisions, judges consider the welfare and best interests principles outlined in the COCA, along with the specific evidence presented in each case. These principles include protecting children from violence and maintaining relationships with both parents and the child’s wider family, including whānau and iwi.
The judge assesses all COCA principles against the child’s specific circumstances and the evidence presented to ensure any order or decision is in the child’s welfare and best interests. The application of these principles can vary depending on the facts of each case. An experienced family lawyer can help you understand how these principles apply to your situation and guide you in presenting your case effectively for the best chance of success.
We’re here to help:
If you’re thinking about applying for an urgent without notice order, such as an interim parenting order or interim guardianship order, it’s important to seek legal advice first. An experienced lawyer can help you prepare your application effectively and may suggest solutions you haven’t considered. Their knowledge of available orders and understanding of what judges expect can greatly improve your chances of a successful outcome.
If you have questions about the COCA or need help with the application process, contact us for a free initial consultation. At Fixed, we provide guidance on these matters and offer legal aid for those who qualify. Reach out today to learn about your options and how we can assist you.