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Page URL: https://practice.orangatamariki.govt.nz/policy/family-court/
Printed: 31/10/2020
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Last updated: 06/10/2020

Family Court

We must present and conduct ourselves in a professional and respectful manner when engaging with the Family Court. We must prepare and file clear and outcomes-focused protection applications, court plans and reports.

Updates made to policy

Corrections have been made to the court plans section – the plan and report are provided to (not filed in) the Family Court, and the court (not the social worker) ensures copies of the plan are given to entitled people.

Court plans – monitoring and reviewing the plan

When this policy applies

This policy applies whenever we engage with the Family Court — preparing or filing care or protection applications, court plans and reports.

What the Family Court does

Care or protection proceedings are principally dealt with by the Family Court under the Oranga Tamariki Act 1989. The philosophy behind the Family Court is to help people to resolve their own problems through counselling, conciliation and mediation.

This is consistent with the purposes and principles of the Oranga Tamariki Act 1989 with its emphasis on participation in decision-making by family/whānau members. The Family Court has the power to make its own decisions.

This means the court may override the decisions of a family group conference. In doing this the court would need to be seriously concerned that the family group conference plan would not keep te tamaiti or rangatahi safe.

Engaging with the Family Court

Social workers must present and conduct themselves in a professional and respectful manner whenever they are engaging with the Family Court.

This should be done by writing accurate, informative, clear and concise affidavits, reports and plans and by responding in a timely manner to directions and referrals made by the Family Court and others engaged in the Court process. It also means dressing appropriately when attending court, being punctual and demonstrating respectful communication when addressing the Court.

Court process

Care agreement instead of custody order

If a tamaiti is unable to remain at home but the plan is for them to return after a period in care, consideration must first be given to using a care agreement section 139 or section 140(a)–(c) under the Oranga Tamariki Act 1989, rather than making an application for the court to make a custody order.

If a rangatahi aged 15 years or more is unable to remain at home but is able to be assisted to achieve independence, consideration must first be given to using a care agreement section 140 (d) under the Oranga Tamariki Act 1989, rather than making an application for the court to make a custody order.

Process for getting a custody order

A social worker can apply to the Family Court if issues of care and safety for a tamaiti or rangatahi can’t be resolved through a family group conference or other intervention.

The court process begins (unless there has been emergency action) with an application under section 68 for the court to make a care or protection order. There may be circumstances when an urgent order is required before the main proceedings are commenced. If you think those urgent circumstances apply you should consult with your local legal services team.

Usually a social worker or the Police make the application but anybody can apply for a care or protection order if they get the court’s permission.

Ensure that the correct Court templates in CYRAS are used when preparing applications for orders, plans or reports to the Court. Details of te tamaiti, their family and whānau must be accurately recorded in both CYRAS and Court documents. If you require assistance with the preparation of court documents please consult with your local legal services team.

A court will normally only make a final care or protection order once it has considered the decisions of the family group conference and believes that the need of te tamaiti or rangatahi for care or protection cannot be met by other means. The Court can make interim orders in other circumstances and the judge may also refer the matter back to a family group conference.

Types of court orders

Policy: Without notice application for interim custody of a tamaiti or rangatahi

Recording Family Court outcomes

We must ensure that the Court record for te tamaiti is accurate and any Court outcomes are recorded in CYRAS in a timely manner.

Details of te tamaiti, their family and whānau must be accurately recorded in both CYRAS and Court documents.

We must also take care to accurately record directions given by the Court. Make arrangements to obtain a copy of Court orders promptly after hearings and check that any orders accurately reflect the directions given. Any inconsistencies need to be identified and rectified quickly.

Legal status must be clearly recorded in CYRAS, along with the supporting documentation.

Reports to the Court

The Court can request reports from Oranga Tamariki under section 131 or 132 of the Care of Children Act or section 65 and s66 of the Family Violence Act 2010.

We must ensure that all reports are provided in the timely manner and in accordance with the brief set by the Court.

Minors taking part in Family Court proceedings

Unless the court orders otherwise a parent under the age of 18 years can only take part in Family Court proceedings with a litigation guardian. A litigation guardian is an adult authorised to direct the proceedings on the minor's behalf and is appointed by the court.

The person appointed consents to the appointment, performs the functions of a litigation guardian and is unlikely to have any conflicts of interest with the minor.

The Family Courts Rules 2002 state that:

  • a minor is a person under 18 years
  • a minor can apply to take part in the proceedings without a litigation guardian if they are not prohibited by any enactment and are capable of making the decisions required or likely to be required and no reason exists that would make it in the interests of the minor to be represented.

If a litigation guardian is to be appointed this can occur by the court of its own motion or upon interlocutory application (with or without notice).

In any case involving parents under the age of 18 years consult with Legal Services at an early stage.