Where there are children involved, separation becomes much more complicated.

The Family Court encourages parents to make their own arrangements in relation to the day to day care (this used to be called “custody”) and contact (which is sometimes still referred to as “access”). In many cases this is achievable and works for both parties. When making your own arrangements these should be in the welfare and best interests of the child or children. That is what the Family Court expects and is the primary consideration of the Court should the Court be required to be involved.

Often parents cannot agree to what is best for the children. In this case separating parents can apply to the Court for a Parenting Order which will set out who will have the day to day care and what the terms of the contact might be. 

Unless the application is urgent such as for safety concerns, you will probably be required to attend a Parenting Through Separation Course and Mediation. Speak to your local Family Court about who provides the services in your area.

Holdaway Law can help you prepare your application or help you respond to an application if you have been served.

Safety concerns may arise for example where family violence has occurred or perhaps where one or both of the parents have drug or alcohol issues. It could also be where one parent has threatened to take or has taken the child or children away from you or the region where you live.

Where there are safety concerns for the children in the care of either parent, an application may be able to be made to the Court without notice by a lawyer acting for a parent which means that the application is made urgently and the other parent does not get to see the application until a Judge has made their decision on whether an Interim (Temporary) Parenting Order should be made.

Holdaway Law has extensive experience in making without notice applications in situations where there are safety concerns for the children. If you are concerned about who is involved in the care of your children or how your children are being treated, call us for a confidential meeting and you can discuss what needs to be done. If the application for a Parenting Order is to be made without notice, then legal aid may be available.

Holdaway Law is also able to act for parents who have been served with Parenting Order applications. If a without notice application for a Parenting Order is successful, then an Interim Parenting Order will be made. This will set out what the parenting arrangements will be until there is a Court hearing to establish what the terms of the final Parenting Order will be.

It can be many months or sometimes a year or more between an application being made and a final Parenting Order being made. The respondent in an application can be stuck with severely reduced contact with their child or children during this time, especially where allegations have been made relating to alcohol or drug use; or allegations of family violence.

Sadly New Zealand has a very high rate of Family Violence. This can take the form of:

• Physical abuse
• Sexual abuse
• Psychological abuse
• Financial abuse

There is legal help available. The hardest step is usually the first one – making the decision to get help.

Holdaway Law can provide legal help in the form of an application for a Protection Order and other associated Orders such as Tenancy Orders and Ancillary Furniture Orders. 

Without notice (urgent) applications can be made where there is an immediate and likely on-going risk of violence. This means that the application is made and determined normally on the same day by a duty Judge. The Judge makes the decision before the other party is served. 

If the Duty Judge thinks there are grounds for a Protection Order, then an Interim Protection Order is made which will mean that the person who is alleged to have used violence (respondent) will not be legally able to contact you and your children. The other party then has the opportunity to defend a final Protection Order being made.

On notice applications are where there is a lesser risk of immediate harm to you or any children but still an ongoing risk. This means that the respondent is served with the application and has an opportunity to respond before a Judge makes a decision.

The three main criteria for a Protection Order are:

• Was there a domestic relationship – that is did you live with or have a relationship with the other person who you accuse of domestic violence?
• Was there family violence? – have you suffered physical, sexual, psychological or financial abuse?
• Is a Protection Order necessary? In other words, is there a risk of further family violence?

If you have answered yes to the three questions above, then call Holdaway Law for a confidential discussion on what steps need to be taken to put some safety mechanisms in place and what other support is available.

Being served with an Interim Protection Order can be a shock and is an upsetting and confusing time. Often people are served the papers but the effect and consequences of breaching the Protection Order are not explained by the person serving the papers. 

Many respondents think the Protection Order is unfair and without reading or understanding the papers, make the mistake of contacting the applicant immediately to ask why they have taken this step. This should not be done as it can likely lead to a separate criminal charge right at the start of proceedings.

It is very important to seek legal advice immediately. You are normally only given a few days to file a response which is quite unrealistic as it can take a few days to find and instruct a lawyer. However, if you do not take steps to defend the application, the Interim Protection Order becomes final after 3 months. A respondent is also likely to have to undertake a Stopping Violence course as part of the order.