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LAWS411 Family Law

tag 0 Download 0 Pages / 0 Words tag 17-06-2022
  • Course Code: LAWS411
  • University: University Of Otago
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  • Country: New Zealand

Answer:

RE: Legal opinion in matter of Family Law case between William and Katherine.

The following legal opinion has been drawn for family law case for the client of the firm, William George Winslow (hereinafter, “William”), in connection to the protection order filed by Katherine Anne Winslow (hereinafter, Katherine). This opinion covered in the ensuing parts summarizes the defenses to be adopted in this case, based on the application of temporary protective order granted to Katherine. The ensuing parts also detail the manner in which an application can be made for a parenting order by William. In the end, the opinion has been summarized for the convenience of the client.

Steps to be undertaken by William for the ensuing Family Court proceedings

A protection order is an order granted by the court, to safeguard the victim of domestic abuse. As per section 13 of the Domestic Violence Act 1995, it can be made on application, without notice, in cases where the court is satisfied that a delay could entail undue hardship or a risk of harm. When a protection order is made without notice, on an application, it is a temporary order and is subjected to sections 76 to 80 of the Domestic Violence Act 1995 (Parliamentary Counsel Office, 2017a).

Once a protection order has been made, the party against which the same has been made has to adhere to its conditions strictly (National Network of Stopping Violence, 2005). Section 13 of the Domestic Violence Act 1995 also dictates that the temporary protection order generally lasts for three months. Moreover, if the respondent does not challenge the temporary protection order, it becomes permanent after the lapse of three months (Ministry of Justice, 2017a). As per section 76 of Domestic Violence Act 1995 and section 315 of the Family Court Rules 2002, the respondent is required to file a Notice of Intention to Appear and affidavit in support of their reasons for not making the temporary protection order as a final order (Parliamentary Counsel Office, 2017b). 

Upon a protection order being made against the applicant, without notice, the respondent has certain options which they can undertake for challenging such a temporary protection order. The individual, against whom this order has been made, has to apply to the Family Court to stop the same from being made into a final order. In case any special conditions are made through the protection order, an application can be made under section 46 for its discharge or variance (Parliamentary Counsel Office, 2017a). For getting the protection order discharged in entirety, an application can be made under section 47. Only when an application is made under this section, can the registrar assign a date of hearing the case (Parliamentary Counsel Office, 2017a). Once, it has been notified to the court that the temporary protection order is being challenged the registrar is required to set a hearing date, which has to be the earliest date practically possible, and it cannot be a date which is later than 6 weeks (Community Law, 2017a).

The first one is to apply as per section 22, regarding an alteration or for the discharge of the standard conditions which relate to the weapon. When a temporary protection order is made, the Respondent is required to hand in the firearms within a time period of 24 hours (New Zealand Police, 2017). The license for carrying such firearms is also cancelled. So, an application can be made under section 22 and 23 against such handling over of firearms by the respondent (Parliamentary Counsel Office, 2017a).

For a protection order made, section 51D provides that the court could also direct the respondent to attend a non-violence programme and to undertake an assessment (Community Law, 2017b). When an application under this section is made for an application without notice, section 51E dictates that the direction does not apply till ten working days of serving of the copy of direction over the respondent under rule 101 of Family Court Rules 2002 (Parliamentary Counsel, 2017b). And within a period of these ten days, the respondent has to notify the objections to this direction. The details regarding the time period is same as provided in section 47 (Parliamentary Counsel Office, 2017a).

The last option available with the respondent is to notify their intention of appearing before the court as per section 76 (Parliamentary Counsel Office, 2017a). Upon a temporary order being made under this act, the respondent has the right of notifying the court regarding their wish of being heard, and regarding the substitution of the final order for a temporary protection order. Once an application has been successfully filed against the protective order, the respondent is required to provide the evidence regarding their side of the story. This has to be filed in form of affidavits, which can be entered into the court as evidence. The evidence which is included in the affidavit of the client has to support the contention made. 

In Surrey v Surrey [2010] 2 NZLR 581; [2010] NZFLR 1, due to the allegations of sexual, physical and psychological abuse, and the final protection order was deemed as necessary. So, for William, it would have to be established that there was no domestic violence. If the initial incidents of domestic violence are established, it would have to be proved to the satisfaction of the court that the same would not be repeated. However, in such case, there are high chances of a final protection order being made against William.

In RJD v RCJ [Protection Order] [2010] NZFLR 108, the text and phone messages had to be considered in the text of breakdown of a relationship. The father in this case was upset, as the wife had relocated and he could not contact his son. There was a minimal risk of domestic violence between them. And so, a continued protection order was not deemed as being necessary. Hence, on the basis of this case, William can easily show that the photo he sent, along with the text message were due to the breaking of his relationship, along with the mental pressure of his father’s death.

Hence, it is advised to Williams to file an application as per section 76, 47, 22, 23 and 51D, within the period highlighted above, against the temporary protection order granted to Katherine by the Family Court (Parliamentary Counsel Office, 2017a). This would not only stop the court from making a final protection order against William, without hearing William’s contentions, but would also help in his continued rights to hold the licensed weapon. So, it is advised to Williams that he should prepare for the Family Court proceedings, to prove his side of the story. He should also gather the sufficient evidence in this regard, so as to put forward his side (Cordell, 2017). The rationale behind this is to avoid a final protection order being made against William, which could prove as a hindrance in him getting the parenting order. This is because the final protection order would be a proof to the domestic violence made against Katherine by William. This would not be considered in the best interest of the children and would hence, prove as a hurdle in attaining a parenting order or even in getting unsupervised visits. 

Parenting Order

When there is a dispute between which parent would look after the children and regarding the permission or hours for which the parent can see the children, an application can be made for parenting order. For applying for a parenting order, the applicant has to pay a sum of $220 to the court (Ministry of Justice, 2017b). Though, for the waiver or cancellation of this fee, a request can be made to the court. The application has to be made under the Care of Children Act 2004, in the form which is available at the Website of Ministry of Justice of New Zealand (Ministry of Justice, 2017c).

While applying for this, it has to be mentioned if the order is sought with or without notice. Where any act of violence is involved, the application is made by without notice. Upon an urgent application being made, an interim order is granted by the judge, who is valid for a set time period, or on occurrence of certain events, or till the time the court stays the order. As per section 48 of the Care of Children Act, 2004, this order is made by the Family Court which decides which parent gets the responsibility of the day-to-day care of the children and who can have a contact with the children (Parliamentary Counsel , 2017c).

Section 47 of this act dictates that a parent or a guardian, along with other specified people, as mentioned in this section, can apply for a parenting order. A parenting order can be summarized or detailed and it would depend upon the application that was made by the applicant. The application under section 48 of this act is made for a new parenting order, and for modifying the terms of an existing parenting order, the application has to be made under section 56 (Parliamentary Counsel , 2017c). In Duggan v Brownlee [2015] NZFC 4064, the court stated that for determining if the order has to be changed, the change in material circumstances, over a period of time had to be considered. So, for Williams, it would have to be shown that the conditions have changed and that he is not an alcoholic anymore. A parenting order can be made as final, under section 48-49 and as an interim, as per section 49. Such an order remains valid till the time the child attains the age of sixteen or such a time, as the court decides.

While granting a parenting order, the welfare and the best interest of the child has to be considered by the court as per sections 4 and 5 of this act. Section 4(2) (b) of Care of Children Act, 2004 provides that the relevance of the parent’s conduct has to be seen in the light of its impact over the children’s welfare and best interest. As per section 6, the views of the child are also taken into account (Parliamentary Counsel, 2017c). In Bashir v Kacem [2010] NZFLR 865, it was held that the facts of each of the case, would decide on what is to be considered as the best interest or the welfare of the child, in the specific circumstances (Nakarawa, 2013). So, the assessment of these factors has to be done on case basis, instead of a formulaic manner.

Section 5(a) provides the necessity of the protection of the child from any kind of violence. For modification of a protection order, the circumstance under which it was made, along with the reasons given by the judge while granting the protection order, has to be evaluated (Parliamentary Counsel , 2017c). In Lowe v Way [2015] NZHC 93, the approach given by the judges was that to decide the occurrence of alleged violence, the likelihood of the violence being carried out against the child, along with the severity of nature of the violence, as a risk to the child, had to be assessed (Thomson Reuters, 2015). So, in this case, it would have to be shown that William does not pose a threat to the children.

The protective custody of the children remains in the hands of the mother, unless compelling grounds can be established otherwise (Parliamentary Counsel, 2017c). In CGM v MJE-H [2009] NZFLR 910, the father of the child was given the interim parenting order for the day to day care of the 12 months old child, due to the mental illness of the mother (LexisNexis, 2017).

Section 51 of this act dictates that the protective conditions would be granted on the basis of identified risk, in addition to the level of substantiated domestic violence. An application for supervised contact can also be made as per section 58 to 60 of this act (Parliamentary Counsel, 2017c). So, the contact with the children can take place, only when such a third party if present, so as to govern the contact for the safety of the child. In Kay v Eades [2016] NZFC 3372, the matter decided was related to whether or not, the mother should be given the benefit of unsupervised contact with the child. Even though, such an unsupervised contact was granted, it was done with a number of protective conditions. The conditions set out in this case, for unsupervised conduct included no alcohol or drug use by the mother, in addition to the car should have the warrant of fitness, the parties to attend to counseling, and the child should be seated in the car safely (The District Court of New Zealand, 2016). So, Williams is advised to get the unsupervised contact on such bases.

In D v W (1995) 13 FRNZ 336, the father was having relationship with other women and he elected to choose the other women instead of the mother of the children. The court viewed that the children’s mother made it hard for him to maintain contact with the children. The mother absconded in the middle of proceedings without informing the father. She also lied to the lawyer of the children stating that it was just a holiday. She applied for a parenting order in Australia so as to remain there. The father had to track the children and through an order of the court, bring the children back to Auckland. This was ultimately resolved through the mother getting a parenting order, through consent and the father was given the right to contact the children on weekend. The father was appointed as an additional guardian. But, the mother hired a hit-man to murder the father and upon this being proved in the court, the parenting order w granted to the father. The theme here was the welfare of the children (The Jamaican Bar Association, 2017).

In PN v BN [2007] NZFLR 320, it was held that for the welfare and best interest of the children, even a reluctant parent could be asked to make caring arrangements for the children (University of Waikato, 2008). In A v X [2005] 1 NZLR 123 – High Court, Justice Heath (1st Appeal to HC), mother was both physically and psychologically abused by the father (New Zealand Parliament, 2017). In this case, a parenting order was placed which provided that the father would not have any contact with the eldest child and the contact with the youngest child would be supervised. The father applied for unsupervised contact, upon which, the mother applied for relocating to UK from NZ. The father was granted the unsupervised contact, based on protective conditions. These included the father not to be under the influence of drugs at such time when the child was under his care, and not to have contact with the current wide, as a result of the children being witness to violence between the current wife and the father.  Even on the appeal, the earlier decision was affirmed by the family court.

For filing for a protection order, the evidence has to be shown as being in favor of William. The first and foremost thing to be done in the court of law is to deny the allegations which have been made by Katherine. However, as the children, George and Charlotte can be used as evidence to the abuse of Katherine; the evidence has to be proved as inadmissible, faulty or prejudiced. It has to be shown that the evidence is irrelevant or unreliable as per section 7 of the Evidence Act 2006. Further, the probative value of the evidence could be shown at risk, as per section 8(1) of this act (Parliamentary Counsel Office, 2017d).

The key point which can be raised against the granted protection order is to raise the issue that Katherine never filed a police complaint against William. Even when she was advised by the doctor, E. Manchester, of Heaphy Terrace Medical Centre, whom she had visited when she was injured, she never filed a police complaint. This, in itself is evidence, which can be put forward as a loophole in the statements of Katherine. Further, William can also present the text message which Charlotte had sent him on Thursday night, stating that she was missing her father. This text would not only prove helpful in future, for getting a parenting order, but also as the evidence that Charlotte had told him about pasta being cooked as dinner. This would establish that he was not sneaking a look in the house where Katherine lived.  

He could also highlight his past record, which was clean. And that only because of the trauma resulting from the death of his father, he became an alcoholic. Further, realizing his mistake, he had become a part of Alcoholics Anonymous, which he was keen on continuing.

Williams, in this case, should, instead of applying for a protective order, apply for supervised visits to Charlotte, as that would form as a base for future application of a protective order. This would help the court in deciding the changed circumstances as per Duggan v Brownlee. Another thing working in favor of Williams can be inferred from Bashir v Kacem. The best interest or the welfare of William’s children is in being with William.

William has a lot of money, as a result of his employment as an accountant. This enables him in providing the lifestyle which they are used to. By staying with him, George could continue with his motor-cross and Charlotte could continue with her horse riding. However, due to his history of abusing Katherine, along with the text messages and the photography which he sent to her, he would not be successful in getting a protective order. This is because these present a risk to the welfare of the children and is not in their best interest, as per Lowe v Way. This, along with the other case laws highlighted above, affirms that the best interest and welfare of the children is supreme (Henaghan, 2017).

Hence, he should apply for supervised visit with his mother, to his children. Or apply for an unsupervised visit, with a protective order, in similar lines of A v X.  Though, he would not be successful in getting a parenting order for day-to-day care of the child in our opinion, as a result of his alcoholic nature and domestic violence.

Steps to determine the father of Katherine’s unborn child

If the mother decides to put the name of a man on the birth certificate, that man gets the right to establish contact with the child and also the visiting rights. This also enables a person in getting a parenting order and requires paying for child support. However, in absence of such name on the birth certificate, the individual has to apply for guardianship, through a Family Court (Community Law Wellington and Hutt Valley, 2014).

As per section 5 of the Status of Children Act 1969, when a child is born during the course of woman’s wedding, or within ten months of dissolution of her marriage, without any evidence to prove otherwise, the child would be considered as that of the mother and of her husband (Parliamentary Counsel Office, 2017e). As per section 47 of the Family Proceedings Act 1980, the paternity order can only be made in case an application is made by the mother. As per section 54 of this act, the parentage test can be made by the court on an application by the party of proceedings or by the court itself, on the child, or on a person who can be the natural parent of the child (Parliamentary Counsel Office, 2017f). Though, this is just a recommendation and the test cannot be forced upon the individual or the guardian (Citizen Advice Bureau, 2016). As a last resort, or where the case seems extreme and deems it necessary, the paternity test can be opted by the court, by putting the child under the guardianship of the court, as per section 27 of the Care of Children Act, 2004 (Divorce Laws, 2017).

So, William can apply for a paternity test, but he would need the permission of Katherine for the same. If she refuses to give the requisite permission, he would have to apply to court, and show the extreme circumstances, to get a court order.

Section 17 of the Care of Children Act, 2004 makes the mother as the sole guardian of the child. Though, if the couple is married, is a de facto partner, or lives in union, at any period of time, since the starting of the pregnancy till the end of the birth, the father becomes the guardian by default. Section 18 dictates that the father becomes the guardian of the child, pursuant to his name being registered in the birth information of the child (Parliamentary Counsel Office, 2017c).

To prove the legal status as being the guardian of the child, an application can be made by the father of the child as per section 20 of this act. In such a case, the father would have to seek an order which declares him as the guardian, as a result of applicability of section 17(1). Such an application is made in the cases where the birth certificate of the child does not name the individual as the father, yet he was a deemed guardian as a result of being married, being a de facto partner, or living in union, at any period of time, since the starting of the pregnancy till the end of the birth (Parliamentary Counsel Office, 2017c).

As Charlotte and George were born out of the marriage between Katherine and William, William can claim guardianship of these two. Also, he can seek the guardianship of the unborn child, even if Katherine decides not to enter his name in the birth certificate. This is because the pregnancy started while they were married and so, as per section 17(1), William can make an application for guardianship under section 20.

Summary of the opinion

On the basis of the law and case laws established here, an opinion has been formed for the case of William. The same has been summarized below:

  1. For the protection order filed by Katherine, an application should be filed by William, to stop the temporary order granted to Katherine, from being turned into a final order, under the sections quoted earlier.
  2. Regarding the parenting order, it is advised to William to not apply for the same. The reason being his history of alcoholic consumption, along with the text message and the written testimony of William’s mother as the testimony to his bad behavior. He should instead opt for supervised visits, where his mother would act as the supervising person. This should gradually be transformed to unsupervised visits, and after establishing his credibility again, opt for parenting order.
  3. To establish the paternity of the child, he would have to get the permission of Katherine, or else, show extreme situation, which can be a bit difficult, as there is no base to establish this. He can also apply for guardianship of the child, as the conception of the child occurred while Katherine and Williams were still married.

References

Citizen Advice Bureau. (2016). Paternity. Retrieved from: http://www.cab.org.nz/vat/fp/c/pages/paternity.aspx

Community Law Wellington and Hutt Valley. (2014). Your Pregnancy Rights. Retrieved from: http://www.wclc.org.nz/wp-content/uploads/Your-Pregnancy-Rights-2014.pdf

Community Law. (2017a). Challenging a protection order. Retrieved from: http://communitylaw.org.nz/community-law-manual/chapter-29-domestic-violence/challenging-a-protection-order-chapter-29/

Community Law. (2017b). What a protection order does. Retrieved from: http://communitylaw.org.nz/community-law-manual/chapter-29-domestic-violence/what-a-protection-order-does-chapter-29/

Cordell, J.E. (2017). How to Fight an Order of Protection. Retrieved from: http://dadsdivorce.com/articles/how-to-fight-an-order-of-protection/

Divorce Laws. (2017). The Children's Act, 38 of 2005. Retrieved from: http://www.divorcelaws.co.za/childrens-act-38-of-2005.html

Henaghan, M. (2017). Above And Beyond The Best Interests Of The Child. Retrieved from: http://tur-www1.massey.ac.nz/~wwcppe/papers/cppeip04/cppeip4j.pdf

LexisNexis. (2017). Cases. Retrieved from: http://lexisweb.lexisnexis.com.au/List-Cases.aspx?s=608

Ministry of Justice. (2017a). Respond to a Protection Order. Retrieved from: https://www.justice.govt.nz/family/domestic-violence/respond-to-a-protection-order/

Ministry of Justice. (2017b). Apply for a Parenting Order or Order to Settle Dispute. Retrieved from: https://www.justice.govt.nz/family/care-of-children/when-you-dont-agree/disagreements/apply-parenting-order/

Ministry of Justice. (2017c). Form generator. Retrieved from: http://www2.justice.govt.nz/careofchildrenform/

Nakarawa, J. (2013). The Best Interests of the Child and Relocation Disputes. Retrieved from: http://www.amat.org.nz/The%20Best%20Interests%20of%20the%20Child%20and%20Relocation%20Disputes.pdf

National Network of Stopping Violence. (2005). Resources. Retrieved from: http://www.nnsvs.org.nz/resources/law-your-rights

New Zealand Parliament. (2017). The Bristol Children. Retrieved from: https://www.parliament.nz/resource/mi-NZ/50SCJE_EVI_00DBHOH_BILL11914_1_A327349/a4fa041537d77a05e8405da839b1a5ede1042262

New Zealand Police. (2017). Protection Orders. Retrieved from: http://www.police.govt.nz/advice/family-violence/protection-orders

Parliamentary Counsel Office. (2017a). Domestic Violence Act 1995. Retrieved from: http://www.legislation.govt.nz/act/public/1995/0086/latest/whole.html#DLM372146

Parliamentary Counsel Office. (2017b). Family Court Rules 2002. Retrieved from: http://www.legislation.govt.nz/regulation/public/2002/0261/latest/whole.html#DLM148222

Parliamentary Counsel Office. (2017c). Care of Children Act 2004. Retrieved from: http://legislation.govt.nz/act/public/2004/0090/latest/whole.html#DLM317444

Parliamentary Counsel Office. (2017d). Evidence Act 2006. Retrieved from: http://www.legislation.govt.nz/act/public/1969/0018/latest/whole.html#DLM390675

Parliamentary Counsel Office. (2017e). Status of Children Act 1969. Retrieved from: http://www.legislation.govt.nz/act/public/1969/0018/latest/whole.html#DLM390675

Parliamentary Counsel Office. (2017f). Family Proceedings Act 1980. Retrieved from: http://www.legislation.govt.nz/act/public/1980/0094/latest/DLM39723.html

The District Court of New Zealand. (2016). Justin Kay v Dana Eades [2016] NZFC 3372. Retrieved from: http://dcjudiciary1.cwp.govt.nz/assets/unsecure/2016-10-10/2016-NZFC-3372-Justin-Kay-v-Dana-Eades.pdf

The Jamaican Bar Association. (2017). Out of Weekend Seminar. Retrieved from: http://www.jambar.org/index.php?option=com_phocadownload&view=category&download=183:Custody%20of%20Children,%20Mrs.%20Priya%20Levers,%20May%2016,%202000&id=11:other-years&start=60&Itemid=138

Thomson Reuters. (2015). Brookers Family Law — Child Law. Retrieved from: http://livepages.thomsonreuters.com.au/media/10846/child_law_1_bul.pdf

University of Waikato. (2008). In A World Of Its Own: How Operative Closure Limits The Law’s Ability To Protect Children From Maltreatment. Retrieved from: http://researchcommons.waikato.ac.nz/bitstream/handle/10289/2231/thesis.pdf?sequence=1

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