It has a wide jurisdiction involving multiple laws. New Zealanders lodge about 60,000 applications a year in the Family Court, making it the second biggest division of the District Court.
Established under the Family Court Act 1980, the court is mandated to make orders in respect of unborn children, has jurisdiction in adoption matters, and is the forum for relationship matters involving marriage and civil unions, as well as separation and relationship property disputes.
The Family Court is where people come to seek protection orders from violent family members, unless the police have made application to the criminal court. The Family Court considers hundreds of these applications every month. When matters are urgent, a judge can sometimes make a temporary protection order from their chambers the same day an application is filed.
The Family Court can make orders regarding the protection of elderly people, and is the forum for resolving disputes over the will and estate of a deceased person.
“The Family Court continues to be given more and more jurisdiction in differing areas of the law”
There are some other lesser known aspects of the court’s jurisdiction which do not necessarily fit within a simple construct of the idea of “family” matters. For example, it can determine a mental health patient’s compulsory treatment status, as well as decide if a person needs to undertake assessment and treatment for a substance addiction.
Family Court proceedings often concern children. Over half the applications made to the Family Court are made under the Care of Children Act 2004. This includes applications for parenting orders about how a child will be cared for after parents have separated and they cannot agree on shared care arrangements. It also allows other people, such as grandparents, to be appointed guardians. Guardianship entails many things, such as the authority to choose which school a child attends, where a child lives, and the cultural and religious denomination a child belongs to.
The second largest body of the court’s work deals with applications brought under the Oranga Tamariki Act 1989. These applications are made when a child or young person needs care and protection. The court can make orders, such as determining who a child is to live with, to ensure children are protected from harm.
In care and protection proceedings children must have a lawyer represent them, and in Care of Children Act proceedings, children can have their own legal representation if the court determines it necessary. Wherever possible in family disputes, the Family Court aims to help people resolve their own problems by way of counselling, conciliation and mediation. A number of Family Court judges specialise in convening judicial settlement conferences where they
guide people in a less formal setting to find a solution, avoiding the cost and emotional drain of court hearings.
The Family Court continues to be given more and more jurisdiction in differing areas of the law. For instance, there has been an international trend, reflected also in New Zealand, of more people entering into international surrogacy arrangements and inter-country adoptions.
The Law Commission recently recommended that the Family Court have jurisdiction to determine disputes over possession and burial of deceased persons. This year the Substance Addiction (Compulsory Assessment and Treatment) Act 2017 came into force and provides for Family Court judges to make the necessary decisions about treatment at a treatment centre. An amendment to the Health Act 1956 provides that the Family Court is to deal with appeals and applications for public health orders.
Although it is essentially a private forum in that it deals with deeply personal and sensitive matters, the Family Court is nevertheless a part of our justice system and must be as open and transparent as possible to be accountable to the public. Media are entitled to cover many Family Court proceedings, and increasing numbers of full decisions are being published online.
New Zealand’s Family Court is part of an international community of courts that share a framework and values about parental responsibilities for when family disputes cross borders. These are under the Hague Conventions on international family law.
Both the Principal Family Court Judge and Chief District Court Judge are members of the International Hague Network of Judges. The Chief District Court Judge also serves on an Experts’ Group on Cross-Border Recognition and Enforcement of Agreements in Family Matters Involving Children established by the Hague Conference on Private International Law.