Family Law

Family Law

Change is never easy …

Sometimes life doesn't always turn out the way we want it to. Deciding to part ways is a difficult decision to make and one, which once made, can often be even more difficult to implement. Our family law team at Ward Adams Bryan-Lamb specialise in providing sound advice within this important area of law. We take a pragmatic "down to earth" and practical approach to your family's legal matters. Armed with the knowledge, skills and experience to work with our clients, our objective is to achieve the best solutions for you and your children. Co-parenting is not a competition - it's collaboration.

SEPARATION
  • Separation can be a difficult time with many issues needing to be resolved, even more so when children are involved. We understand how stressful this time in your life can be and can advise and help you through the process. 
  • You are legally separated when you indicate to your partner that you wish to separate and to live apart.
  • Whether you seek legal advice before or after you separate, we can advise by explaining what your legal rights, obligations and entitlements are.
  • As children cope better with separation when they know the people who care about them are working together, it's important your children are put first during separation, before negotiations commence regarding relationship property. 
PARENTING (CARE AND CONTACT ARRANGEMENTS)
  • When parents separate working out how future care arrangements will work for you and your children often requires legal advice and assistance. Once negotiations are completed and arrangements agreed upon, recording your agreement in a written Agreement signed by both parents, provides you and your children certainty and stability, thereby avoiding future conflict and confusion.

  • Once agreement is reached you may seek to record such details in a Memorandum of Consent which both parents will sign. The Family Court can then be asked to make arrangements agreed upon in your Memorandum of Consent into a formal Court Order. Doing so through the Court process will allow your Agreement to be enforced by the Family Court - in the event of either parent failing to adhere to such arrangements.

  • In situations where care arrangements are not able to be agreed upon, we can advise you regarding all family matters, explain to you the Parenting Through Separation (PTS) course and Family Dispute Resolution (FDR) Mediation, as well as providing legal representation for you should a formal application(s) need to be filed in the Family Court.

  • Not all parents will seek to have their Agreement made into a formal Court Order, dependent upon their ability to successfully "co-parent" together. Adopting positive communication whilst having a child-focussed approach is of key importance.

GUARDIANSHIP
  • Usually both parents are legal guardians of children. Sometimes when parents are unable to reach decisions regarding important "guardianship" matters (i.e. health, education, religion and relocation - where one parent seeks to move away with the children to a different area in New Zealand or overseas), we can advise you regarding such matters.

  • In some situations where care and protection concerns exist and the appointment of an "additional guardian" (i.e. family/whānau members, step parents, paternal/maternal grandparents) for your children may be necessary, we can advise and assist in making an application to the Court to obtain formal Court Orders to ensure the children's/grandchildren's safety and wellbeing are protected. 

ADOPTION

The Adoption Act 1955 outlines a process to establish a permanent legally binding relationship between adopting parents and a child/or children. If you are seeking to adopt a child/or children we can advise you regarding:
  • Approval as potential adoptive parents through the Ministry For Vulnerable Children Oranga Tamariki ("The Ministry") including various reports and processes as required;
  • The preparation, processing and filing of consent documents needing to be signed by the birth parents;
  • Placement certificates;
  • The preparation, processing and filing of a formal Application to Adopt and Supporting Affidavit documentation;
  • The Court process including the making of an Interim Adoption Order;
  • Dealing with the registration of the child's Birth Certificate after the making of a Final Adoption Order.

MINISTRY FOR VULNERABLE CHILDREN ORANGA TAMARIKI ("The Ministry")
  • In some circumstances where the Ministry has become involved - with children being taken into care or are about to be taken into the Ministry's custody, or should legal advice be needed about children in your immediate or your extended family/whānau who may be at risk - we can advise you regarding such matters.

  • If you are caring for a child through the Ministry we can also help you through the process in seeking applications through the Family Court for permanency orders and any other legal or Court issues that may arise.

DOMESTIC VIOLENCE

  • Under the Domestic Violence Act 1995 a Protection Order can be made to protect people in a domestic relationship. If you and/or your children are being subjected to domestic violence by someone who has used physical, sexual or psychological abuse (i.e. harassment) against you, we can assist you in obtaining an urgent Court Order (Without Notice). A Temporary Protection Order can be obtained urgently where the Applicant (including children) are at risk of harm or in circumstances where any delay would cause undue hardship. Feel free to contact us to discuss your options.

  • Our experienced family law team will advise you about the process and will represent you in Court appearances and/or hearings and explain to you what happens, if a protection order is breached. We will also provide you information about occupation, tenancy and ancillary furniture orders as well as support programmes (i.e. Stopping Violence Southland) available in the community to help adults and children to deal with the effects of family violence.

  • Should you require protection against a "non-family" member who is harassing you (i.e. a neighbour), we can assist you in the preparation and filing of an Application in the District Court to obtain a Restraining Order, explaining to you what is involved and represent you throughout the process. We can also advise you about obtaining a Trespass Notice.

INTERIM FINANCIAL ARRANGEMENTS

Whether you are contemplating separation or you have already separated, we can advise you about your rights and guide you through various options available (for example WINZ assistance, spousal maintenance, child support and mortgage payments).  

DIVISION OF RELATIONSHIP PROPERTY

Part of the separation process includes dealing with all property needing to be divided between you and your partner. Unless "exceptional circumstances" exist which might justify a departure away from the "equal sharing" principles under the Property (Relationships) Act 1976, division of relationship property usually occurs on an equal sharing basis. Once all relevant information has been provided regarding your personal circumstances and most importantly, the classification of all property has been discussed and resolved with Counsel assistance, we can then advise you about your entitlement under the Property (Relationships) Act 1976. We can assist you throughout the negotiation process to achieve an amicable out of Court settlement. Most relationship property settlements are able to be resolved through agreement but if not, we can assist you with the filing of Court proceedings and represent you in Court throughout the process. 

Should the filing of formal proceedings be required the person doing so is called the "Applicant." Your ex-partner is called the "Respondent". The Respondent will usually have 21 days to file his/her defence proceedings from the date they are served a copy of your proceedings. Once the Respondent has completed and filed his/her defence proceedings within the required time frame, if both parties and Counsel agree to attend a Settlement Conference (which is a round table meeting convened by a Family Court Judge), often resolution of such matters may be reached with Court/Counsel's assistance. Once resolution is reached, the parties agreement is recorded by the Applicant/Counsel in a Memorandum of Consent which is signed by both parties/Counsel and then filed in the Family Court with a Court Order for sealing.

Contracting Out/Pre-Nuptial Agreement

If you are in a de facto, civil union or marriage relationship it is important to get legal advice to protect your hard earned assets - even more so should you have children from prior relationship(s). Once your relationship reaches a three year period, the Property (Relationships) Act 1976 makes provision for equal sharing of relationship property assets. In situations where one party brings greater value assets/liabilities to a relationship compared to the other party, we can advise you about entering into a Contracting Out (or Pre-Nuptial) Agreement. A Pre-Nuptial Agreement is an agreement signed by both parties to the relationship, identifying "separate property" of each party and will outline how "relationship property" will be divided should the party's separate or upon death.  

Separation and Property (Relationships) Agreement

Once a relationship has ended and the negotiation process is concluded (which has identified, valued and resolved the division of all relationship/separate property matters), such arrangements are then formalised via a section 21 Separation and Property (Relationships) Agreement signed by each party and certified by respective Counsel. We will advise and assist you throughout the process and tend to any conveyancing and further change of ownership matters as required.
Generally the law provides for equal sharing of relationship property but there are some important exceptions. We can advise you whether any of these exceptions apply to you and can negotiate on your behalf to get a fair division of relationship property.

Should the parties reside in a property owned by their new partner (i.e. personally or on behalf of a Family Trust), important issues will need to be considered and discussed. Such issues include the surviving spouse being permitted a Right of Occupation following their partner's death, for which we can advise you and prepare relevant documentation as required (for example Memorandum of Wishes, Will, Deed of Family Arrangement).

In "blended" family situations an important consideration raised is often "cost" related. But … the cost of not putting in place appropriate legal protection for you and your family (by entering into a Contracting Out/Pre-Nuptial Agreement with your new partner), far outweighs the risk, cost, and anxiety of losing your hard-earned assets at some stage in the future. Doing so provides both parties with peace of mind regarding such important matters.

DIVORCE

If you have been living apart for a two year period we can advise you about how to apply for a Dissolution of Marriage (or "divorce") through the Family Court. In New Zealand we have a "no fault" divorce system. Either a Joint Application or an Application By One Party can be applied for by the parties in the Family Court. You can do so yourself, or if you want us to complete the necessary forms required, we can arrange for the preparation and filing of an Application and Supporting Affidavit documentation. As well as needing to provide the Court with a certified copy of your original Marriage Certificate, a Court filing fee is also required. In circumstances where one party chooses not to co-operate with the process, an Application By One Party will need to be filed resulting in the assistance of a process server being required to serve relevant documentation on your ex-partner, which we can advise and assist you through the process.

INTERNATIONAL - HAGUE CONVENTION ON CHILD ABDUCTION

The Hague Convention (adopted by NZ) prevents children being removed from the country they live in - without the prior consent of the parent left behind. The Hague Convention protects children who have been taken to another country (perhaps initially for a holiday) with the permission of their parent left behind, but then is retained by the travelling parent in the other country - without the other parent's consent.

We can provide legal advice to you and explain the Court process to prevent children being removed unlawfully from New Zealand or should you seek the return of children taken out of New Zealand. We can also advise you about the required process to allow you to legally take a child overseas.

INTERNATIONAL - RELOCATION

Family relationships increasingly cross international boundaries. When a relationship breaks down, sometimes one of the parties may seek to return back to their country of origin taking the children with them. We have experience in both international and NZ cases dealing with relocation issues, as well as defending such applications through the Family Court process.


PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988 (PPPR Act)

Should a member of your family or a person with whom you maintain a close relationship with, loses mental capacity and he/she has no Enduring Powers of Attorney in place, we can advise you about options available under the Protection of Personal and Property Rights Act ("PPPR Act"). An application can be made to the Family Court for the appointment of a Welfare Guardian, Property Manager or an Order for Administration Property Manager. Applications to the Family Court under the PPPR Act can be made for welfare guardianship, property management and other Orders.

Once formal applications are filed a Family Court Judge will likely appoint a Lawyer for the Subject Person who will meet with the person and request a report be prepared for the Court's consideration.  
  • A Welfare Guardian can make decisions about the personal care and welfare of someone who has lost mental capacity (e.g. living arrangements and medical treatment); and/or
  • A Property Manager or Property Administrator can take care of the finances and property of someone who has lost mental capacity.

FAMILY PROTECTION AND TESTAMENTARY PROMISES

We can discuss what orders might be helpful for you and your family situation and also advise you what Family Protection and/or Testamentary Promises applications may need to be filed in the Court and also represent you throughout the Court process.

ESTATE ADMINISTRATION AND PROBATE

After the death of a loved one we can advise and assist with the administration of your loved one's estate and divide property in accordance with the deceased person's Will. If a deceased person has no Will (and dies intestate), we can advise and explain what steps are required and assist you through the process (i.e. probate).

LEGISLATION

When making an application or responding to proceedings filed against you in the Family Court there are certain rules about which form must be used and proper processes needing to be followed. Such rules and processes are covered by the following legislation:
  • Family Court justice.govt/courts/family-court
  • Family Court Rules 2002
  • Adoption Act 1955
  • Care of Children Act 2004
  • Child Support Act 1991
  • Children Young Persons and Their Families Act 1989
  • Domestic Violence Act 1995
  • Family Proceedings Act 1980
  • Family Protection Act 1955
  • Law Reform (Testamentary Promises) Act 1949
  • Property (Relationships) Act 1976
  • Protection of Personal and Property Rights Act 1988
  • United Nations Convention on the Rights of The Child 1990
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