Legal Information

Oranga Tamariki (formerly CYFS)

Oranga Tamariki (OT) is a government agency that works with whanau/families to protect children and young people under 18; manage young offenders; provide care for children and young people; and oversee adoptions.

OT have a 24 hour, 7 day a week crisis service - ring them anytime on 0508 326 459

What to do if you think a child is being abused or mistreated.

The most important thing is children's safety, and trying to to keep a child safe is always the right thing to do. The person making the report cannot get into trouble with the law, and is not to blame if their concerns turn out to be unfounded. It's better to be safe than sorry.

You can make reports without giving your name, but it's better if the social worker is able to get hold of you later to ask for more details. Your name will not be given to the family being investigated; however, sometimes they may be able to guess who it was.

You have the right to be told the outcome of the investigation and what action was taken. If the matter is taken to Court, you may be called as a witness. Your report may only be a small part of the evidence.

What happens when someone makes a report about child abuse?

When a report is made, OT will consider investigating the report. A social worker or the Police will investigate the case. When sexual abuse is suspected, the child may need to be interviewed.

If a child or young person is at immediate risk of harm, they can be removed from their home. A social worker or the Police can enter the home. They will usually have a warrant to uplift the child, however, if the Police believe the child is in immediate danger, they don’t need a warrant to come and get the child.

Often children or young people go to stay with other whānau/family members, or they may go to foster care. Within five days of removing the children, OT must apply to the Family Court for a Custody Order.

If OT are investigating a child who has been in your care, you can apply straight away to the Court to have access or have your child returned. The Court will then decide who has custody. Whether a child is removed or not, a social worker will continue to work with the whānau/family to sort out how the child will be protected and cared for.

If the case is dealt with by the Family Court, a Family Group Conference should be held within 60 days where family and others involved will get to tell their stories. The Court can also order counselling, or some kind of support or services for the family.

What are my rights when OT becomes involved with my whānau/family?

  • As a parent, you are still the child's guardian, even if they have been removed from your custody. You still have a right to be informed about any important decisions affecting your child.
  • You can get an advocate to go with you if your children have been referred to CYF. You can get a lawyer to help you. If you want to challenge any Court decisions about custody and access, you will need a lawyer.
  • If your child is removed, you can go to OT or the Court to request that the child is returned to you, or that you are able to see the child.
  • You should be allowed to tell your side of the story at a Family Group Conference.
  • You can ask the social worker to come to your house for any meeting; you don't have to go to their office.
  • You can ask for another social worker if you have any concerns about the one who is working with you.
  • You have a right to speak to the social worker's supervisor.
  • You can ask for your files under the Official Information Act (write it in a letter). When you are given your files, there may be some blanked out details, where other people are mentioned.
  • If you can't find out what's going on, ask to speak to an OT supervisor, or ask an Aviva Family Support Worker to help you.
  • You can make a complaint about a social worker, either in writing or on the phone. The complaint will go to their supervisor. You should get written confirmation that the complaint has been received, and then they should get back to you with an outcome within 21 days.
  • If you are still not happy, you can complain to the General Manager, the Chief Executive, or the Commissioner for Children.

For more information contact OT on 0508 326 459 or visit their website.

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The Domestic Violence Act

The Aims of the Domestic Violence Act:

"To reduce and prevent violence in domestic relationships"

The Act aims to achieve this by:

  • recognising that domestic violence, in all its forms, is unacceptable behaviour;
  • ensuring that, where domestic violence occurs, there is effective legal protection for its victims.

Domestic Violence Defined:

In this Act, domestic violence, in relation to any person, means: Violence against that person by any other person whom that person is, or has been in a domestic relationship violence is defined as:

  • physical abuse
  • sexual abuse
  • psychological abuse including but not limited to:
    • intimidation
    • harassment
    • damage to Property
    • threats of physical abuse, sexual abuse, or psychological abuse
  • In relation to a child: allowing the child to see or hear physical, sexual, or psychological abuse of the person with whom the child has a domestic relationship, OR puts the child, or allows the child to be put, at real risk off seeing or hearing abuse occurring.

The person who suffers the abuse is not regarded as having caused or allowed the child to see or hear the abuse, or as the case may be, having put the child at risk of seeing or hearing the abuse.

A Domestic Relationship is defined as:

For the purposes of the act a person is defined as being in a domestic relationship if the person:

  • is the partner of the other person
  • is a family member of the other person
  • ordinarily shares a house with the other person
  • has a close personal relationship with the other person

With regard to this the Court may define what determines a close personal relationship.

A domestic relationship is not:

  • a landlord-tenant relationship
  • an employer-employee relationship
  • an employee-employee relationship

View the entire act.

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Protection Orders

Applying For a Protection Order:

  • An official court form needs to be filled out.
  • A sworn statement about why a Protection Order is required needs to accompany this. (An affidavit)
  • This paperwork is presented to the judge (usually the same day) at Family Court. At the same time Furniture, Occupancy, or Tenancy Orders can be applied for.
  • Applicant - the individual who applies for the Protection Order
  • Respondent - the person named as the person using the abuse

In case of emergency or urgency a Temporary Protection Order is granted immediately and 'without notice'. This means the Protection Order is in effect and the respondent has not yet been notified.

If a Temporary Protection Order is granted the order is typed up and copies are made. A copy will be given to the applicant, a copy is sent to the Applicant's nearest Police station, and a copy is served on the respondent by a Police Officer.

If a Temporary Protection Order is made the respondent must hand over any firearms to the police within 24 hours. Their firearms licence is also suspended.

A Temporary Protection Order lasts a maximum of three months. If the respondent does not defend the order it will automatically become a Final Protection Order until it is officially discharged. If an Order is made Final the respondent's firearms license is automatically revoked and all firearms must be handed in to the Police.

In other circumstances the Order will be made 'on notice', which means that both parties will have an opportunity to be heard by the Court. If this happens the respondent is given a short period of time to file a written defence. If a defence is filed the Court will then hear both sides and make a decision.

If the application is heard 'on notice' and goes to court the applicant will be advised of a hearing date. If a Final Protection Order is made copies are given to the applicant, the respondent, and to the applicant's nearest Police station. Once a Protection Order is final it will remain in effect until it is officially discharged.

Conditions of the Protection Order

Non-violence conditions:

These conditions apply whether or not the respondent and applicant are living together or apart.

The respondent must not:

  • physically, psychologically, or sexually abuse or threaten anyone protected by the Order (which can include children)
  • damage or threaten to damage the protected person's property
  • encourage anyone else to physically, sexually, or psychologically abuse or threaten anyone protected by the Order.

Non-contact conditions:

These apply when the respondent and applicant are living apart. The respondent must not:

  • go to applicant's home, workplace, or onto applicant's property without the applicant's express consent
  • intimidate or harass the applicant or any children staying with applicant
  • hang around the applicant's neighbourhood or workplace
  • follow the applicant
  • try and stop the applicant or any children living with the applicant from coming and going
  • phone, fax, write, email, text, or in any way contact the applicant
  • encourage others to contact the applicant on their behalf

In most cases the respondent will be required to attend a programme related to family violence. It is a breach of the Protection Order not to attend the programme unless the respondent is excused by the programme director.

Penalties

If the respondent breaches any of the Order's conditions they can be arrested immediately.

The maximum penalty for breaching a Protection Order is six months in prison or a $5,000 fine. This penalty can be increased to two years in prison if the person has committed three offences and two of those offences were committed within a three-year period.=

Useful Information

  • A Protection Order is applied for through the Family Court. Any breaches of the Protection Order are dealt with in a Criminal Court.
  • An applicant can apply to the court to have a Final Protection Order discharged at any time.
  • If a Protection Order is granted, the applicant and their children can access free approved programmes through agencies such as Aviva to support them in dealing with their situation.
  • The applicant can suspend the non-contact conditions if they want to continue seeing the respondent. The applicant can withdraw this consent at any time, simply by advising the respondent that the non-contact conditions apply and the conditions are re-instated automatically. The non-violence conditions apply regardless.
  • An Occupation or Property Order allows the applicant to stay in their house and forces the respondent to move.
  • A Furniture Order allows the applicant to take furniture from their home in order to help them set up in a new home.

Children

When a parent applies for a Protection Order, children living in the same household are also covered by the Order. When this is the case, a Parenting Order will be granted by the Courts.

By law both parents can apply for care of the children. If there is a risk that one parent will take the children away or harm them then sole custody can be asked for.

The respondent will be able to visit the children after the Court's grant a Parenting or Contact Order.

Special conditions can be added to the Protection Order that cover what happens when contact is granted – e.g. the process picking up and dropping off children.

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Care of Children Act

The Care of Children Act 2004 came into force on July 1 2005.

The Act made some important changes to the laws that deal with:

  • the guardianship of children
  • arrangements for the care of children
  • resolving disputes about the arrangements for taking care of children

The Act makes the law more consistent with the responsibilities that parents have towards their children. It also recognises that children in New Zealand are brought up in many types of family arrangements.

The Act:

  • puts more emphasis on the rights of children
  • encourages co-operative parenting
  • recognises the many new types of family arrangements that now exist for looking after children
  • provides for more openness in the Family Court processes
  • gives the Court more options when dealing with breaches of Court orders.

The Act emphasises that the welfare and the best interests of children are always the first and most important issue in any debate.

  • A judge must listen to the children and take their needs and wants into consideration
  • The children must have an independent lawyer
  • Children can appeal Family Court decisions that affect them
  • Children can ask the court to review parents' and guardians' decisions
  • Guardianship ends at 18. Guardianship will also end if the child is 16 or over and enters into a civil union, marriage, or de facto relationship - the child needs written consent for this.

Encouraging cooperative parenting

  • The Act puts emphasis on the responsibilities that parents have rather than the rights
  • The Act also uses the words 'day-to-day care' instead of 'custody', and 'contact' instead of 'access'. Parenting Orders replace Custody and Access Orders
  • The Act emphasises that parents' responsibilities are on-going. Parents without day-to-day care are encouraged to have contact
  • The Act encourages parents to make their own decisions about their children and formalise it with a Parenting Agreement. A Court then can make an Order based on that agreement
  • If parents can't agree the Court can arrange counselling. If this is not an option then a Parenting Order can be applied for through the Family Court
  • A Parenting Order is seen as the last resort and gives day-to-day care to one parent or guardian. It also formalises contact.

Recognising Different Arrangements for Children

  • The Act makes it clear that it is important for children to keep their links with wider family
  • It encourages wider family to participate in care and upbringing of children
  • With the Family Court's permission, members of the wider family can apply to the court for a Parenting Order
  • Parents can appoint a new partner as Guardian after that person has been with the children for a year. Usually they will have to get the other parent's agreement. The Family Court Registrar then checks this.

Greater openness in the Family Court

The Children’s Act allows the public to know more about what goes on in Family Court. If a person wishes to bring a person with them to Family Court for support, they may do so.

  • The Act allows news reporters to attend Family Court sessions. There are strict limits on what they can publish. They cannot publish names or any information that might identify anyone involved.
  • The Judge has the power to remove them from the courtroom at any time

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Legal Aid

Legal Aid is a scheme that provides you with a lawyer if you are unable to afford one yourself. If you are granted Legal Aid it will cover your lawyer's fees and your court costs. You may be required to pay some or all of it back.

To find about more about Legal Aid Click Here

To apply for Legal Aid, approach your lawyer (if you do not have a lawyer, check out the lawyers on our Links page) and advise them that you wish to apply for Legal Aid.

The lawyer will have a copy of the application form and will also be able to advise you on the process.

The Family Court

The Family Court deals with family matters including:

  • Protection Orders
  • education programmes for those who are protected by a Protection Order
  • stopping violence type programmes for those who have a Protection Order against them
  • care of children - guardianship, custody, access, adoption, paternity and child support
  • protection of children who are abused
  • separation and divorce
  • relationship property
  • mental health assessment
  • child abduction (Hague Convention)

The Family Court tries to help people solve disputes about leaving or staying in a relationship, custody, access and property, without having a Court hearing.

Each Family Court has a Coordinator who should be able to give you information.

Counselling is available free or at a low cost. The Family Court Coordinator can refer you to a place for these services.

What happens when I go to the Family Court about Parenting orders or relationship property?

At the Family Court, family issues are sorted out through counselling, mediation or a hearing. In cases where there is violence involved, there is usually separate counselling, then either a mediation conference or a hearing. The Court will decide which is the best way for decisions to be made.

At counselling, you can talk through all the issues with the counsellor who will help you work out what you want to do. This counselling is not about getting you back together with your partner, unless that is what you want. You don't have to attend counselling at the same time as a person who has been abusive to you.

You may be required to go to a mediation conference, where a Judge tries to help you and the other person to come to some agreement that you can both live with.

If you both can't come to an agreement at the mediation, the issues will be dealt with at a hearing, where the Judge will listen to both sides before making a decision. The Judge must find out what the children want, and take that into account, depending on their age and maturity. The Judge can also ask other people like Counsel for the Child, social workers, doctors and psychologists to prepare reports about what would be best for the children - they may talk to you, the other parent, the children and significant others.

Can I talk to someone about my relationship?

You can get free counselling by asking the Family Court Coordinator. Other agencies also provide free or cheap relationship counselling. If there is violence involved, you can talk to us at Aviva.

How can I get a separation or divorce?

When you first split up, you can just both agree to separate. You don't need to involve a lawyer. It's a good idea to write down the agreement to separate, and then both sign and date it.

If there has been violence involved and you have to work out what to do about the children and the relationship property; we recommend that you get a lawyer to help you.

To file for a divorce (called Dissolution of Marriage) you must be separated for two years. You need to provide a statement and some evidence that you have been living apart for two years (if you both say you have been separated for two years, this will be enough), and that you have both sorted out custody and access arrangements for your children.

How can I sort out the property when my relationship has ended?

If you have been in a marriage or defacto relationship (same-sex or different-sex) for three years, you are entitled to have the property shared equally between you and your partner if you split up or if they die.

The Court can award lump sums to the partner that is going to have the least money after the break-up (perhaps because of the way the relationship was organised, they gave up their job to look after the children while the other partner advanced their career).

Your lawyer can help you come to an agreement about the property, or the Court can decide the division of the property.

It is possible to make a different agreement about how property will be shared. This is called 'contracting out - it's a legal agreement that has to be made before the relationship breaks up. (Sometimes people call these 'prenups' or 'prenuptial agreements').

For the agreement to hold up in Court, you and your partner both have to have different independent legal advice before you sign the agreement. If you have been forced to sign a 'prenup' agreement or if the agreement is clearly not fair to one party - then it probably won't hold up in Court.

Greater openness in the Family Court

The Family Court is closed to the public. It's not as formal as the District or High Court.

The Children’s Act allows the public to know more about what goes on in Family Court. If a person wishes to bring a person with them to Family Court for support, they may do so.

  • The Children’s Act allows news reporters to attend Family Court sessions. There are strict limits on what they can publish. They cannot publish names or any information that might identify anyone involved.
  • The Judge has the power to remove them from the courtroom at any time

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