‘Care and protection’ – confusion about without-notice uplifts, family group conferences, and s67 ‘declarations’

When Oranga Tamariki social workers and police uplift children without notice, often using deception to gain access to the children, parents and families are justifiably enraged, shocked, and indeed beside themselves. Families’ and parents’ reaction may then make things worse and be used against them in subsequent court proceedings.

All of that is bad enough.

What makes everything worse is confusion about the relevant law.

It is almost impossible for a lawyer to explain to a distressed parent how the phrase ‘in need of care and protection’ is used through different stages of the process. That parent is then likely to be contradicted by lawyers and FGC Co-ordinators who have themselves been misadvised about the relevant law.  (Law-society training sessions have sometimes got this wrong. So have some judges. It is not the individuals’ fault. It is not a conspiracy against a particular parent or family. It is a systemic problem that needs correction.)

This blog may help parents and lawyers facing this situation.

Temporary court order to permit uplift of children

In general terms, to get an order to allow them to uplift children, Oranga Tamariki (OT) social workers have to satisfy a court that:

  • at the time of making the application, the children are more likely than not to be at risk of physical, sexual or emotional harm if OT does not intervene (this is my simplistic paraphrase of the statutory definition of ‘in need of care and protection’ – you can read the full statutory definition here, in Oranga Tamariki Act s 14)
  • other options are not practicable or will put the children at risk (often the perceived – and real – risk is that the parents will run and hide with the children, if an application is served on the parents before the court makes an order)

Usually the Family Court will err on the side of safety and make the temporary order requested.

This is not a definite decision about whether OT’s intervention will continue to be needed. The parents are able to challenge these temporary decisions by the Family Court.

Next steps

A Family Group Conference is required urgently, unless one has already been held. (See below.)

The parents also have 7 days to file a notice of intention to appear’ in the Family Court (and send a copy to OT), to say they dispute the allegation that the children are ‘in need of care and protection’.

They can also apply to discharge the temporary custody order that allowed OT to uplift the children.

However, these documents will not be considered instantly (unlike the original applications by OT).  It would require truly exceptional reasons to get the court to look at cancelling the uplift decision without going through several weeks (or sometimes months) of procedural steps.

Therefore the parents need to get help to stay calm and cope with the system.  It will take time.

As well as a good lawyer, the parents and families need strong emotional support and self-discipline, to avoid making things worse while they are in the reactive phase.

Family Group Conference

FGC – ‘care and protection’ agreement does not mean agreement to a s67 declaration

A family group conference is an opportunity to come up with a plan to address whatever care-and-protection issues exist.

However, in order to start discussing a possible plan, the people attending the FGC first have to agree that the children are ‘in need of care and protection’. (OTA s28(b). This is really unfortunate wording because it creates much confusion and heartache and, in practice, gives OT more power than it was intended to have.

Agreeing at an FGC that the children are ‘in need of care and protection’ does NOT mean the FGC is agreeing that the social workers got everything right, or that the uplift was justified. Even more significantly, it does NOT mean the FGC agrees to the making of a s67 ‘declaration’.   All it means is that the FGC agrees that – as at the time of the FGC itself – there are care-and-protection issues for the children that need to be addressed, and that the FGC wants to try to make a plan to address those issues.   (Even if people at the FGC cannot agree that there was any basis for OT’s actions, they can usually agree that the children are (now) at risk of emotional and psychological harm (because they have been uplifted). That agreement can be enough to allow those present to try to make a plan that will address the children’s genuine needs, looking forward instead of angrily going through the minutiae of what happened at the uplift and how upset and humiliated people felt by it.)

In my experience, many FGC Co-ordinators and even senior family lawyers do not understand this point.  Nor do a number of lay advocates and support groups who help parents to deal with OT. This is tragic – because it means FGCs often reach ‘non agreement’ instead of coming up with an effective solution.

Unless the FGC specifically and expressly agrees that a s67 declaration should be made, agreeing that the children ‘are in need of care and protection’ must not be treated as agreement to the making of a declaration.

The FGC Co-ordinator is required to provide a written report to participants, agencies and persons affected by the decision, and the Family Court, about decisions, recommendations and plans (if any) by the FGC. (OTA s 29(3) and s 32. Anyone who attended the FGC must check whether this report is accurate. It must not say the participants agreed to a declaration, unless that actually occurred.

FGC – privileged, and absolutely no publication at all

There are particularly strict rules about FGC confidentiality. What is said at an FGC is (a) privileged and (b) must not be published.  Except for the report by the FGC Co-ordinator, nothing that occurs at an FGC can be disclosed in court or in an affidavit.

Unless it is for statistical or bona fide research purposes, under OTA s38(1) it is a criminal offence to publish any report about the proceeding of an FGC – even if you do not include any information that would enable children or adults to be identified.  Therefore, for example, you must not mention anything that happens at an FGC on social media, even if you do not identify anyone involved .

Even if you are publishing something for statistical or bona fide research, it is still a criminal offence under OTA s38(3) to publish if it contains information that would enable someone else to identify someone who was at the FGC or who was the subject of the FGC.

Criteria for a s67 declaration

Unless the parents agree to the making of a s67 declaration (or take no steps to defend it), a Family Court hearing will be necessary. As a generalisation, that hearing is supposed to start within 60 days of the OT application being filed in court (which is often the day the children were uplifted): OTA s200. In practice it often takes longer for it to be scheduled.

Under OTA s73, the criteria for making a s67 declaration are – at the time of the hearing:

  • the children are ‘in need of care and protection’ (at least one of the subsections in OTA s 14) – this does not have to involve actual or even prospective physical harm – it can involve the children being likely to be harmed emotionally – however, there has to be a current need
  • the children’s ‘need for care and protection’ cannot be met by ‘other means’ (i.e. without having ongoing OT involvement) – ‘other means’ (NOT a ‘declaration’) can include implementing a plan or decision of an FGC (OTA s73(1)
  • OTA section 73(2) specifically requires the Court, in most cases, to take into account any evidence that the kind of harm suffered by the children will neither continue nor be repeated
  • the Court is also required, in most cases, to take into account any evidence that a parent or guardian of the child is capable of ensuring the harm will neither continue nor be repeated.

If there are major factual disputes about the information OT has put forward, those disputes need to be decided by a Judge, because that OT information will be relied on in subsequent planning unless it is disproved.  If it has not been challenged at this early stage, it will probably be too late to challenge it later.

On the other hand, if the picture painted by OT is pretty accurate despite some errors, and if the issues can only be solved with OT assistance or funding, it can be better to consent to a declaration and focus instead on the plan for what happens next.

What happens next, if a s67 declaration is made?

If a s67 declaration is made, OT have to develop a care-and-protection plan. For cases that have reached the Family Court, that usually includes wanting the children to continue to be in OT custody even if the children are going to be placed back with their parent/s.

It is more helpful for parents and family to co-operate with the making of a plan, than to oppose everything the social workers try to do.

The Family Court decides whether to approve the plan.

Again, the attitude of the parents and family is crucial.

Opposition – if any – needs to be well founded and with strong, realistic, alternative proposals to address the issues that – by this stage – are no longer open to challenge in themselves.

Access orders, restraining orders, support orders, service orders, counselling orders, custody orders

These are beyond the scope of this post.

Use of information in this post

The comments in this post are intended for general readership, are a bit simplified, and should not be relied on as legal advice for a specific situation.

Readers are invited to share this post with lawyers and other legal advisers, and on social media, and also with family who may be planning to attend an FGC, and with FGC Co-ordinators if there is a dispute about what is meant by agreeing that a child is in need of care and protection. I am happy to provide more detailed information to lawyers and FGC Co-ordinators on request.

If I have misstated the law at any point, I invite correction.

Cheryl Simes

29 November 2017

Creative use of s46G counselling orders – with one psychologist per party, using peace-making therapeutic skills in a collaborative approach

New Zealand First’s election platform included a policy of making Family Court counselling more effective. We hope that the new government will encourage more creative use of the existing system, before making changes that may prove unnecessarily disruptive. The collaborative approach outlined below is one such creative innovation, achieved within the existing system.

Court-directed counselling can be used within Care of Children Act proceedings to provide one parent with input by a psychologist – for instance, if a s133 specialist report identifies a need for this.  It can also be used to provide both parents with individual input by separate psychologists (one for each parent).

Such input is not therapy.  That would be taking the scope of ‘counselling’ too far.

However, the psychologists can use therapeutic techniques to help each party understand their own personality and the other parent’s personality, improve their communication, express feelings, needs and interests, understand child development and children’s psychological needs, address historical issues that impede current parenting, and liaise with specialists if intensive therapy is required.

The psychologists can also work together collaboratively, facilitating joint meetings if appropriate, to help the parties improve their relationship as co-parents and/or to improve the effectiveness of a parenting order.

If authorised by the parties and the court, the psychologists can also liaise with a court-appointed specialist report writer (under s133 of the Care of Children Act 2004, or s 178 of the Oranga Tamariki Act 1989).

This is different from the traditional approach under s46G which sees the court appoint one counsellor who works with both parties, usually in joint sessions, with no liaison with any other specialist.

Moreover, this alternative approach is possible under the existing wording of section 46G of the Care of Children Act 2004. Although section 46G refers to ‘parties’ (plural) and ‘counselling service’ or ‘counsellor’ (singular), section 33 of the Interpretation Act 1999 allows the singular to be read as plural, and vice versa (see also section 4).

‘Counselling’ has an extended definition  (tracked through regulations and departmental guidelines) – linked to the qualifications accepted by the Ministry of Justice, which include clinical psychology.

And, although there is a statutory block on disclosing anything said by the partiesto the ‘counsellor’ (s 46L of the Care of Children Act), there is no such statutory block on disclosing something the ‘counsellor’ has said or perceived. The only restriction would be the usual obligation of confidentiality. Therefore, if a party consents, ‘their’ psychologist may disclose limited information to a specialist report writer.

In theory it would be possible for such a ‘counsellor’ also to give evidence in court, not of what a party had said (barred by s46L as above), but of what the counsellor had said, and of the counsellor’s assessment of the party, and of the work done by the party with the psychologist.  In practice, even if a party consented, this would breach ethical rules which separate a psychologist’s therapeutic role from a forensic role.  The psychologist would have a reason to refuse. However, in truly exceptional circumstances, a court might require such a psychologist to give limited evidence even if the client party did not consent, if this was deemed in the interests of the child.

Kiwilaw was recently involved in setting a High Court precedent for such a collaborative-style approach to Family Court counselling. We are happy to provide more information on request, and to receive comments from professionals and parents with insight in these matters.

Cheryl Simes

1 November 2017

Reduce the family friction – put controls in your EPA (enduring power of attorney) – to protect your attorney from attack by other members of the family

mental-health-2313428_1280If you become incapable of making decisions, or of communicating decisions, who will do this for you?

The cheapest answer is to appoint an ‘attorney’ beforehand, by a document known as an ‘enduring power of attorney’ (‘EPA’). 

You do not have to be ‘old’. Young people have car crashes and other experiences that can leave them alive but mentally incapable. A well-drafted EPA can last a lifetime if it includes appropriate successor attorneys; although usually EPAs should be reviewed when you review your will.

There are two types of EPA: (a) for property; (b) for personal care and welfare.

An EPA for personal care and welfare does not come into effect until you lose mental capacity. It may never be needed; but it’s too late if you wait until the need arises. (Then, instead of an EPA, someone will have to apply to the Family Court for an order appointing a welfare guardian. That is more complicated and expensive and also involves regular reviews.)

An EPA for property comes into effect whenever you choose.  If you lose mental capacity before making an EPA, someone will have to apply to the Family Court for an order appointing one or more property managers. That is more complicated and expensive and requires formal accounts to be prepared and regular reviews.

You can revoke (cancel) or suspend the appointment of an ‘attorney’. If you do, you must given written notice to the attorney.

You can appoint anyone to act as your ‘attorney’, as long as they are over 20, not bankrupt, and not mentally incapable themselves. You can also appoint one or more ‘successor’ attorneys, who become your attorney if the first-named attorney cannot act.

People often appoint (a) their spouse; (b) if there is no spouse, or as a ‘successor attorney’, an adult child.  In many families, that can create avoidable issues.

Family conflict can arise if other family members mistrust the appointed ‘attorney’, or indeed if the appointed ‘attorney’ abuses the trust that has been placed in them.

Your preferred attorney may also be doubtful whether they want sole responsibility.

You can reduce such issues by (a) including a clause requiring the attorney to consult another named person before making decisions; and/or (b) requiring the attorney to provide information to a named person (‘supervisor’). These options are available on the standard forms. The named person is not required to sign the EPA; however, it is wise to obtain written confirmation of their willingness to perform this role.

Information. Option (b) (a ‘supervisor’ – to whom the attorney must provide information) requires you to specify in the EPA what information must be provided, and when. For an EPA (personal care and welfare), examples could include: ‘Two-monthly email updates on donor’s circumstances’; or ‘information about decisions about residential care’; or ‘copies of medical notes within 48 hours of medical attention’. For an EPA (property), examples could include: ‘Monthly bank statements’; or ‘Within 48 hours, details about any financial transaction exceeding $200’; or ‘Statements and management reports from donor’s investments.’  For any EPA, there could also be a general clause: ‘Any other information as requested, within 7 days of request.’

The ‘attorney’ can then rely on the other named person to act as a visible check on the attorney’s decisions. The other person can potentially raise early concerns with other family members or the Family Court if the attorney exceeds their authority or abuses their position and will not correct their error. They can also answer speculative but unfounded concerns raised by other family members.

Keep records. For this to work, there needs to be an accessible record of the attorney consulting or informing the other person. Therefore the attorney should keep a ‘paper trail’ (or at least an email trail), to prove that everything has been above board. Keep a paper file or electronic file of decisions made and the communications about them.

Resisting challenges. A disgruntled relative may still try to challenge the attorney’s actions; but they will need solid grounds, and they risk having to pay the attorney’s costs of defending any such challenge. It will be much easier to resist any such challenge if two people are involved when decisions are made, and if the decisions are systematically and accurately recorded.

For property matters only (not available for a personal-care-and-welfare EPA), another option is to appoint two concurrent attorneys, and require them to act jointly. You can still also include consultation and/or supervision requirements as well.

Depending on your circumstances, you may want to include professionals such as lawyers or accountants as attorneys, consultants, or supervisors. This will incur ongoing fees.  In many circumstances it is not necessary.

However, an independent professional legal adviser is required when you first make the EPA: to advise you about the EPA, witness your signature, and certify to their belief that you are acting voluntarily and with full understanding of the EPA.  This is a legal requirement, put in place by Parliament. That adviser must be a lawyer, qualified legal executive, or representative of a trustee corporation.

Resources about EPAs:

Main government website: http://superseniors.msd.govt.nz/finance-planning/enduring-power-of-attorney/

Family Court involvement in EPAs: https://www.justice.govt.nz/family/powers-to-make-decisions/the-court-and-enduring-power-of-attorney-epa/

Legislation: Protection of Personal and Property Rights Act 1988 Part 9

Informative videos:

When should you set up an EPA?

Can a younger person get an EPA?

Who can you name as your attorney?

Can I instruct my attorney to consult other people?

If I don’t have an EPA, and if decisions need to be made about my property and/or my personal care and welfare after I become mentally incapable, what happens? 

What are the main barriers to getting an EPA?

What triggers an EPA to come into effect?

How do I get an EPA?

What happens to my EPA if I move to another country?

Forms:

EPA – Property (new form March 2017)

EPA – Personal care and welfare (new form March 2017)

Remember – although you may download these forms and complete them yourself, they are not legally valid unless they are witnessed and certified by a professional legal adviser.  You may reduce your legal fees by downloading and completing these yourself before you meet with the legal adviser. Ask your legal adviser about this.

At Kiwilaw you will pay less if you download and complete the forms yourself, as long as they are clear and legible.

 

Cheryl Simes

26 October 2017

 

Keep others honest and yourself humble – it’s legal to record your phone conversations, without disclosing the fact

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In New Zealand, that is. Do NOT rely on this if you are outside New Zealand.

 

In general terms, if you are on a phone call to someone else, you may record that call. Except in special circumstances (e.g. if you are a member of a profession with a specific ethical code that requires disclosure, or if specific contractual provisions apply), you are not required to disclose the fact that you are recording.

 

Do not expect government agencies, or professionals, to be happy about the fact that you are recording.  It will increase their suspicion of you. It may be held against you if they are assessing your attitude. (That can be a good reason not to tell them.  However, if they specifically ask whether you are recording, do not lie. Instead, tell them you are recording, show them this blog, and invite them to make their own recording as well.)

 

Reputable, competent and informed professionals will not object if you disclose that you are recording.

I have learnt from the experiences of some of my clients. I now recommend to many clients that they routinely record interviews and phone conversations with professionals and agencies, such as social workers, teachers, medical staff, and anyone else where an issue may arise about what was said. The System can be too ready to believe other members of The System.

A client may subsequently need to prove that they were indeed given particular advice that proved to be unwise (and that is subsequently denied by the advice giver or their employer).  Or that they did not say something. Or that they did. Or that the social worker (or other professional) did or did not say something.

However, recording interviews and phone calls can also enable the lawyer to provide better advice to the client. The client does not always accurately remember (or relate) the conversation. If a crucial call or meeting was recorded, the client and/or lawyer can listen to the recording and, if necessary, gently correct any misunderstanding, before the misunderstanding creates a new problem. A client who is humble enough to accept that they may perhaps have been mistaken, and who agrees to check this before escalating a conflict, should be applauded.

It is reasonable for a lawyer to insist on listening to the recording herself before quoting or using it on a client’s behalf. This expense is insignificant compared to the cost of unnecessarily prolonged proceedings. The lawyer may also identify reasons why using the recording in evidence could backfire, even if the client believes it helps their case.

Just knowing that the recordings are there if needed can help boost a client’s confidence in dealing with agencies. There should be no need to retrieve the recording – unless a dispute arises about what happened.

However, if a client records phone calls or interviews, the existence of such recordings may subsequently have to be disclosed to the court and to other parties, if the recordings are relevant to legal proceedings. The content of the recordings may also have to be disclosed, unless there is a basis to claim confidentiality or privilege.  It is also illegal to destroy recordings (or other documents) that may be relevant to legal proceedings. Wise clients keep this in mind and ensure nothing is said in a recorded call that may reflect adversely on the client.  In many situations it is wise not to volunteer the fact that such recordings exist, especially if there will be no routine procedural ‘discovery’ requirement.

Covert recording may backfire if a party is trying to ‘set up’ or ‘entrap’ another party by asking leading questions or trying to manipulate a conversation.

Even if no such entrapment occurs, covert recording may also be interpreted as breaching a relationship of trust and confidence. Do not covertly record a conversation with your spouse!  Consider how the other person will react if they learn you have been recording and you have not disclosed it at the time. Knowing you have a legal right to do something does not always prevent negative consequences if someone objects. Use discretion and judgment.

Finally, making the recording is one thing. Disclosing its contents to a third party is a different matter.  Legal privilege allows anything to be disclosed in confidence to a lawyer for the purposes of obtaining legal advice. Disclosure to anyone else who was not a party to the recorded conversation may breach privacy laws or incur liability for defamation or breach of confidence, or even criminal liability in some instances.  Caution is advised.

I repeat – this article broadly reflects New Zealand law. Elsewhere the law may be different. Even within New Zealand, the general information in this article may not fit your own specific circumstances. Exceptions exist that have not been mentioned here. This article should not be relied on as legal advice.

 

Cheryl Simes

Prisoners don’t cease to be parents

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A prison inmate has the same legal status as any other parent/guardian.

So a serving prisoner may apply for parenting orders or orders involving guardianship disputes.  A prisoner may also defend applications for such orders.

If a Family Court judge (or registrar) agrees that the interests of justice require the prisoner to attend court in person, the prisoner may have to pay the reasonable expenses incurred in facilitating this.  I say ‘may’ because  I do not accept that this is compulsory in every instance.

I have been told that such costs are recoverable from Legal Aid as a disbursement. From a colleague’s recent experience, the main difficulty seems to be in obtaining timely information from the prison as to the amount that needs to be deposited.

This will be a greater challenge in non-urgent Care of Children Act proceedings where, in initial stages, parties are required to represent themselves and cannot have lawyers acting for them, and are not eligible for legal aid.

Section 65 of the Corrections Act 2004 specifies that, in a civil proceeding (i.e. not a criminal proceeding), any person who applies for an order to produce the prisoner to court must pay those costs.

Contrary to the belief of some practitioners and judicial officers, the statute does not say that the prisoner must pay the costs. It imposes the obligation on the party who applies to have the prisoner brought to court.

The prisoner could be needed as a witness, rather than as a party. If a witness is required for cross-examination, it is the party who filed the witness’s affidavit who becomes responsible for ensuring the witness is available for cross-examination. This is usually done by applying to the court for a witness summons, and then serving the summons along with specified witness expenses.

The order to produce a prisoner is similar to that summons. It is the party who seeks to rely on the prisoner’s evidence who will apply for the order to produce the prisoner. It may indeed be the prisoner, but only if they are a party to the proceedings.

I am aware of two recent cases – both involving prisoners who were parties to the proceedings – where neither party applied to the court for an order to produce the prisoner.

In the first case, I suggested that the court could make an order of its own motion, if the judge considered it necessary in the interests of justice for the prisoner to be present. (The judge declined. It was too soon to say whether the prisoner’s attendance was required.)

In the second case, the presiding judge made the order so that the hearing could proceed, and minuted the expectation that the prisoner would pay the relevant costs.

With great respect to the presiding judge, I consider the latter minute may have been misguided.

The statute only requires ‘the person applying’ to pay the costs.

If the order is made on the court’s initiative, that section ought not to apply.

At least, that’s my interpretation. I confess I have not (yet) checked for any case law on this. One day, in my spare time, just for fun,….

Cheryl Simes (Kiwilaw)

(Originally posted on 13 December 2015. Now transferred to a different page.)

Bemused family lawyer? Let’s start at the beginning… with the Interpretation Act 1999

Want to meddle with the Official Forms? Or use discretion to make two parenting orders instead of one? Or set clear contact or changeover times in Family Court orders?  Help is at hand. You need not wander, lonely as a dog, over a riverbed, chasing a rainbow…

Introducing…not Superman, but the Interpretation Act 1999 (drum roll, please)

‘I haven’t read the Interpretation Act,’ said someone who should have known better. I won’t identify him, for fear of causing significant offence. The comment was made in conversation following a chance meeting. (Doesn’t everyone discuss the Interpretation Act, in chance meetings?)

It had already become distressingly apparent to me that many family lawyers had not read (or at least understood) the Interpretation Act 1999.  Some had been appointed to the bench and had still not read it.

Please do, if you practise family law in New Zealand. Or if you adjudicate on it. It may save you some embarrassment, as well as saving the taxpayer (or private clients) some money.

The Interpretation Act helps with interpretation of statutes – including the Care of Children Act 2004.  It also helps with interpretation of delegated legislation (what used to be called regulations), including the Family Courts Rules 2002.

There is more to it than the celebrated introductory sections of the Interpretation Act – about purposes and principles – to which the bench and bar regularly refer.

There are three later sections that particularly interest me – relating to singular/plural meanings, time (the meaning of ‘from’), and the potential to adjust prescribed forms. Sound riveting? Read on….

Words in the singular include the plural (and vice versa)

Within the Interpretation Act, my favourite section is section 33.  It provides that, unless the context otherwise requires, words in the singular include the plural, and vice versa. So ‘parenting order’ means also ‘parenting orders’. ‘Interim order’ includes also ‘interim orders.’ ‘A directions conference’ means also ‘Several directions conferences’.

Thus, unless the context otherwise requires:

  • COCA section 48 may refer to more than one parenting order (thus allowing split orders?)
  • FCR rule 416U(5) may allow more than one ‘directions conference’ on the without-notice track (while not allowing any other type of conference)

It is not difficult.

Yet, taking one of the above issues as an example, to date there have been at least four Family Court decisions on whether ‘split orders’ are available (i.e. a final day-to-day care order with an interim contact order, or vice versa): two for and two against. There are at least two commentaries: one for and one against. (Contact me for details.) None of those decisions or commentaries mention the Interpretation Act.

There is now a High Court decision pending. UPDATE: The High Court confirmed that split parenting orders were possible, citing (para [37]) the Interpretation Act in its decision. See Johnson v Johnson [2017] NZHC 1564.  

In my respectful submission, the intervention of the High Court should not be needed, in order to draw the attention of the family bench and bar to a basic tool of statutory interpretation.

‘From’ does not equate to ‘beginning on/in’

I cannot pretend that I do not know about section 35(2). I cannot say that I ‘like’ it. It makes life unduly complicated.

Section 35(2) equates ‘from’ with ‘after’.  (Now read that again. Yes. ‘After’.)

Contrast this with common parlance where ‘from’ equates to ‘beginning on’.

I once tried to interest a Family Court judge in the statutory definition of ‘from’, when attempting to interpret a Family Court order. The learned judge was singularly unimpressed. ‘Never before in my time in the Family Court,….’ she began, incredulously.

Admittedly, the Interpretation Act applies only to legislation, not to court orders. (I have since learnt that case law applies similar principles to court orders, contracts and other documents.)

Applying section 35(2) of the Interpretation Act would mean that ‘From 1 February’ meant ‘Beginning the day after 1 February’, and ‘From March’ meant ‘Beginning in April’. ‘From the first week of the school holidays’ would mean ‘beginning on the first day of the second week of the school holidays’.

I have not found case law considering this issue in the specific context of a Family Court order. The issue has arisen in disputes about other types of documents. In those cases the governing factor is whatever the context implies, with preference – if the context does not imply otherwise – for the same meaning as above.

Personally I now try to avoid using ‘from’ in a parenting agreement or proposed parenting order. It is too ambiguous. Children do not need their parents to be confused by ambiguous wording in a document that is intended to make life easier for the children by spelling out clear arrangements.

And I long for a High Court decision that spells out the default meaning of ‘from’ in a Family Court order. Because somebody needs to sort this out.

Prescribed forms may be altered (don’t let the bureaucrats bully you)

Soon after the 2014 Family Court ‘reforms’ were introduced, I was driving over the Kaimais (from Hamilton to Tauranga) after filing urgent without-notice applications in Hamilton for a protection order and interim parenting order. The Family Court manager phoned to tell me my applications ‘could not be processed’ because I had failed to provide a separate ‘information sheet’ for each application.

Prior to the ‘reforms’, one filed a single ‘information sheet’ which covered all applications being filed at the same time. It had not dawned on me that the bureaucrats who devised the ‘reforms’ now expected lawyers or parties to compile two different, separate ‘information sheets,’ containing the same information, when making urgent and potentially life-saving applications to the Family Court in tight timeframes.

I was not going to drive back to my office to compile a second form that added nothing to the information already provided. Nor was I going to allow this to wait until the next day.

Fortunately, I knew the Information Act would ride to the rescue.  I informed the hapless manager that I was currently driving over the Kaimais, and I did not know the section number, but somewhere in the Information Act was a section that meant you didn’t have to use the prescribed form as long as you provided the same information.

Bless him, he shortly rang me back to say he was processing the applications.

That was section 26. My paraphrase to the manager was a bit rough but not too far off. Under section 26, minor differences in the form were acceptable as long as the form still had the same effect and was not misleading.

Does the same reasoning apply to the ‘approved forms’ in COCA proceedings, referred to in FCR 416?  I am unaware of any decisions on that specific point.  I would however be astonished if any court ruled otherwise, once section 26 was drawn to the judge’s attention.

And I will leave it there, for now.  Comments, anyone?

 

Cheryl Simes (Director/Lawyer, Kiwilaw)

 

Updated 26 October 2017