Parents in prison can still use FDR (Family Dispute Resolution)

I love Dad

Dad is in prison. Mum wants a parenting order for day-to-day care of the children.

Before she can apply to the Family Court, Mum is required to attend a parenting-information programme (‘Parenting Through Separation’).

She is also required to use Family Dispute Resolution (FDR), to try to reach agreement with Dad without Family Court proceedings.

Huh? But Dad is in prison.

OR – Dad wants to have some contact with his children.  He too is supposed to use FDR before applying to the Family Court.

Again – huh?  Dad is in prison.

Yes, Dad is in prison.

But that’s not the end of the story….

Although Dad is in prison, he can still access FDR – thanks to FairWay, the Department of Corrections, Pillars (charity providing support for children of prisoners), and the commitment of some specialist mediators.

FairWay is the largest FDR supplier, contracting with mediators throughout New Zealand who provide FDR mediation services. FairWay also provides initial information and screening, and ‘Preparation for Mediation’ services.

And FairWay can provide those services, even if a parent is in prison (though not if on remand).

How come?

I’ve just discovered an article I must have missed first time round – it was published in the Family Advocate (Spring 2016) and is also on the FairWay website:Improving the lives of  children – delivering FDR into New Zealand prisons.’   Written by Keri Morris, FairWay’s FDR Scheme Director and Senior Resolution Practitioner.  It’s worth reading in full – it only takes a couple of minutes.

That article about FDR in prisons explains:

  • why it matters – including, ‘The hope is that by providing a way for a parent and child to remain connected, that will decrease the likelihood of that child ending up in prison themselves, as well as reduce the rate of reoffending.’
  • what it achieves – including, ‘FDR enables parents (including those in prison) and caregivers to make a plan as to how the children can continue having contact with the parent in prison.’
  • how safety risks are monitored and managed –  including,‘We are … very aware that FDR could be used to re-victimise a person and our antennae are up for signs of process abuse.’ 
  • practical issues and learnings so far, including,Reality testing each part of the agreement: If a parent is now allowed to write to a child, is the parent literate? And if literate, do they know how to begin the daunting process of connecting or reconnecting?’

And there’s more. Read it.  And smile, because it is a sign of hope.

 

Cheryl Simes

26 June 2018

(This blog was inspired by reading Keri Morris, ‘The mystery of FDR: common questions and misconceptions,’ 19(4) Family Advocate (Winter 2018), 32-33. Like the 2016 piece mentioned above, this later article is also available on the FairWay website.)

See also earlier blog: Prisoners don’t cease to be parents.

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.)