Who has the care of the kids when you separate? What happens if someone's behaviour just isn't safe to have around them? Can you step in as their grandparent or as aunty if both mum and dad aren't doing so good?
When things are 'all good' these questions are easy; we just sort it out as whanau. It's when it goes wrong, when we encounter family violence, drug or alcohol abuse, mental health concerns or lack of care that the kids get exposed to stuff they just shouldn't see. Then it can get complex quickly. We can help with both urgent and non-urgent Parenting Order applications under the Care of Children Act 2004.
We can help with:
Without Notice (Urgent) applications for day to day care and contact
On-Notice (Non-Urgent) applications
Family Dispute Resolution processes and accessing community supports
Parenting Agreements/Plans
Everyone is entitled to feel, and to be safe in their home, and among their family. Over the last few decades, we've heard every justification. Our view is simple; family violence is unacceptable, no excuses.
Protection orders can be sought against a current or former partner, a family member, a member of your household (e.g. a flatmate) or someone you have a close personal relationships with (e.g. your Ex's new partner).
If you or someone close to you is experiencing violence we can help you apply for an urgent (or non-urgent) Protection Order.
We can help with:
Protection Order applications
Occupation and Tenancy orders
Furniture orders
Applying on behalf of children, or adults who need support to deal with court
Getting support against multiple abusers
One of the reasons we don't leave lousy situations is fear of having nowhere to go, nowhere safe for the kids to be, so we put up with it.
The Family Violence Act allows us to ask a Judge, usually at the same time we seek a protection order for you, to make an order that you get to stay living in the rental you were occupying with the respondent; this is called an Occupation Order, and if granted means they need to move out asap, and stay away, and the tenancy gets put into your sole name.
The act also allows you to apply to live in the family home you owned with the respondent. These orders are flexible and can apply to most forms of 'home' ownership, e.g. through a family trust, a company you each have shares in etc. The idea is the same as with Tenancy Orders, to give you (and often the kids too) a safe place to be, where your abuser must stay completely away from.
It's not a great deal of use getting to stay in the rental, or family home, if they load all the furniture, pots, pan, sheets etc into a truck and leave you and the kids sleeping on the floor. To stop this happening, you can ask the judge for a furniture order too. That just asks that the other side is prevented from taking the property you specify - e.g. you might ask to keep all the white-ware, kitchen table, cooking stuff, the lounge suite, and the kids bunk beds, all their school gear, their clothes and toys etc, but be OK with them taking (or arranging to take their TV, PlayStation, their clothes etc etc. Again, these orders are flexible, just tell us what you'd like to see happen.
We can help with:
Occupation Orders (continuing to live in the family home)
Tenancy Orders (having the rental put in your sole name)
Furniture and Ancillary Furniture orders (getting to use the household chattels and assets necessary for you and the kids to benefit from the home).;
Applying for additional guardianship, and associated applications around removal.
Kids need their adults to make good decisions for them. They're kids right, isn’t thinking it through (then paying for it for them) mostly what they think we're for?
Parents and caregivers don't always agree about what the best choice may be for the kids, and guardianship law is getting to a good answer when disagreements arise. It's about making sure the important people have a say, and agree before big decisions are implemented.
Agree Before You Act
Both guardians need to be on the same page before a guardianship decision/big life change for the kids occurs. If you cant agree on what's best the Family Court can be asked to make the decision for you - that should happen before the change takes place.
Common guardianship disputes, that we can help with include:
International travel/relocation (see Non-Removal Orders below)
Moving between regions within New Zealand
Medical decisions/treatment disputes
Choice of school or schooling methods (e.g. mainstream, home-schooling, immersion classes etc).
Parents (and guardians) have a right to know where their kids are; so the general rule is that no kids should be removed from New Zealand without their guardians agreeing first, or the Family Court saying it's OK.
If someone is planning to take the kids overseas, and you think this could be unsafe, you worry they may not come back, or you think it just shouldn’t happen then you may want to consider a non-removal order. These orders result in the kids’ names being put on a no-fly list either permanently, or until agreement about what travel is OK is reached.
If you’re a parents (or guardian) worried this may be about to occur it’s important to act promptly – it gets much trickier once they’re in the air.
We can help with:
Non-removal orders
Applying to discharge, or defending non-removal applications
Applying for additional guardianship, and associated applications around removal.
If you have an existing care, contact, or guardianship order and someone is breaching it, you may be able to ask the court to "enforce" that order.
Common instances include someone refusing to return the kids after contact (if it was their weekend, but the kids live with you day to day), or someone saying the "deserve more time in the holidays" and just keeping the kids for an extra week at Christmas. Sometimes people don't want to contribute, despite having agreed to, and say "nah, not putting them on the flight, they don't like you anyway".
If the order is in force, and there is no really good reason it shouldn't be being stuck to/complied with, then asking a family court judge to issue a warrant to enforce your rights under that might be the right step for you.
We can help with:
Applying for a warrant to enforce
Defending a warrant to enforce
Varying or suspending orders, to prevent someone applying for a warrant.
The Property (Relationships) Act 1976 is, after the Care of Children Act, and the Family Violence Act (arguably the OT act too, but lets not get into that here...) one of the most significant pieces of family court legislation of the last two decades; it provides the rules for dividing property following the breakdown of a relationships of 3 years or more (or shorter in a number of scenarios).
The Act has an expectation that property will be shared equally, unless it is property that has come from outside of the relationship (e.g. Gradma's will, or money from dad's family trust) - with the theory being that after three years you're seen as a committed team, and all work is teamwork, and all earnings, kiwisaver, profits etc are team profits. Property that needs to be shared (usually) equally is called "relationship property". Property you don't have to share equally is called "separate property".
The operation of the Act gets very complex, very quickly (Greg's written two books on the topic, don't get him waffling or you'll die of old age) but some of the key changes it introduced are simple, but have huge financial impacts; they include:
The family home (where you were living at separation) is usually split 50/50, even if one of you owned it outright prior to the relationship
Family chattels (things put into the family home to enable it to work as a home (fridges, TV, furniture etc)) are generally 50/50 and it doesn't normally matter who owned them when you got together or who paid for what when they were brought
Property purchased for joint use during the relationship is very commonly held to be relationship property, even something in your sole name like an $80,000 caravan
Increases in value due to your work (e.g. your kiwisaver balance going up, the value of your shares in the garage you set up and run) are all normally 50/50
If you need assistance with Relationship Property, or Family/Constructive Trust litigation we may be able to help with that. Give us a call.
Relationship Property Agreements
The old cliche that "an ounce of prevention is worth a pound of cure" is particularly apposite with relationship property law.
Unless you act well before you are in a qualifying relationship you may end up unable to protect assets you built up prior to even meeting your current partner/spouse (e.g. a freehold home inherited from mum).
You can only avoid the effect of the Act if you and your partner/spouse agree to and a formal relationship property agreement is prepared and signed. Everyone must have their own lawyer/legal advice, and the requirements for these documents to be valid are very strict. You can't just download a template and sign it at home.
If you are considering entering into a de facto relationship, or are needing to resolve property rights at the end of a relationship (without ending up in court) we may be able to help with:
Contracting out Agreements (s21 or Prenup agreements) to regulate ownership at the start of the relationship
Relationship Property Separation Agreements (S21A agreements) which regulate asset ownership at the end end of a relationship.
Family Trust and Asset protection structuring (or restructuring)
Family dynamics can be tricky, and sometimes people can be unintentionally (or deliberately, but unfairly) excluded when wills are made. The Family Protection Act 1955 is designed to make sure that everyone who deserves recognition and support gets their fair share. It’s like a gentle reminder that even after someone has passed, fairness should still be a priority.
If you find yourself left out of a will, the FPA allows you to challenge it if you feel you've been unfairly excluded. This isn't about causing trouble; it's about ensuring that all family members are properly acknowledged. Whether you’re a child, spouse, or grandchild, the law aims to provide the support you need.
Navigating the FPA process doesn't have to be intimidating. While it might sound serious, it's more about ensuring equity than creating drama. The goal is to resolve these matters amicably and respectfully, without turning them into a contentious situation.
In the end, the Family Protection Act is about honouring the contributions and needs of all family members. It's not just about financial provisions; it's about recognition and respect.
If you ever feel left out or overlooked, the FPA is there to help make sure that if being left out is unfair, that unfairness is fixed.
We can help with:
Challenging a will that unfairly excluded you
Defending challenges to wills (or assisting executors and trustees with those processes)
Assessing wills and asset planning instruments for compliance with/FPA risk
Assets protection and structuring plans to avoid/mitigate risks of successful (we can't stop them trying, but can make it very hard for them to succeed) claims being made against your estate/will.
Figuring Out Family, One Test at a Time
You're pretty sure, but is pretty sure good enough? Probably not when an infant is concerned right?.
Knowing if you're dad, and have the rights, obligations and duties that come with that is essential; thanks to modern science it's also reasonably straightforward. Paternity testing involves having a swab taken from mum, bub and (who we think is) dad and having that assessed by a specialist lab. Their report will say for sure if you're not dad, and will say how probable it is you are dad (they say things like it's 10,000,000 times more likely X is dad than any other random male - they never say 100% - perhaps their worried about identical twins and stuff).
Once all the science stuff is done, the test results can be given to the court and they can make it all official (and if need be make orders about changing birth certificate details etc too).
If you need help with paternity proceedings contact Niki on 06 7775620 or 02041954321 or email Niki@famlaw.co.nz
There are some things we don't do often enough, know enough about or see which are out of our scope; the law society is really frowny faced about lawyers guessing, apparently that's perceived to be a tad unprofessional.
So, here is our list of things we just don't do:
Oranga Tamariki proceedings
PPPR applications (court appointed guardians etc for adults)
Child Support proceedings
Harassment Act applications