The Legal Framework for Parenting Disputes
To
Mr. Jamie
Respected Sir,
This letter of opinion will provide you with an overview of the family court proceedings that are likely to take place concerning parenting disputes, protections orders and domestic violence related issues. Firstly, before explaining the further court proceedings, I would like to summarize the legal proceedings that have been initiated against you. The Judge has granted the protection order and has issued a temporary protection order against you. Additionally, an interim parenting order has also been made against yourself and you are only allowed to supervise the contract on terms that is approved by the Court.
Now, as you narrated the facts, it is assumed that you intend to oppose the legal orders on the following grounds:
- you are not the biological father of the unborn baby and intend to conduct a DNA test after the birth of the baby;
- you intend to defend the temporary protection order;
- You do not see any future with Alicia;
- You merely want to maintain contact with your children;
- You want Mary to supervise your contact with Damian
Based on the legal circumstances mentioned above, it is important to understand the legal concepts of the disputes and the legal proceedings surrounding, in order to defend the issues.
In regards to the issues relating to parenting disputes, the legal framework governing such disputes include the Guardianship Act 1968 and Care of Children Act 2004 (COCA), [Care of Children Amendment Act (No 2) 2013]. According to section [48] of the Care of Children Act 2004, parenting order is an order issued by Family Court that keeps a record of persons maintaining contact with a child or children as well as persons who carried out the day-to-day care of child/children.
The court may make two types of parenting orders, namely, a final parenting order under section [48 and 49] of the COCA or an interim parenting order as per section [49] of the COCA. While a parenting order remain in force until a child attains 16 years of age (s. 50), an interim parenting order is a temporary order until the final order is made as stipulated under section [49] of the Act. Since no fixed date is provided in interim orders, it remains in force until child attains 16 years. Further, while making a final parenting order, which ends the dispute, is made based on the welfare and best interest of the child as stated under sections [4 and 5] of the COCA.
However, the court shall also consider safety issues such as domestic violence related to drugs and alcohol while making the parenting order as set out under section [5(a)] and [5A] of the COCA. The view and opinion of the child shall be paramount while making the final order as set out under section [6] of the COCA irrespective of gender of the children [s.4(3)] of COCA. A parent’s contact with his or her children may be supervised under sections [58-60] of the COCA.
Parenting Orders
The decision in the landmark case Bashir v Kacem [2010] permits the court to obtain a report from specialist as well in order to assess the welfare and best interest of the child while making the parenting order. According to section [132] of COCA, any report of a social worker may provide information necessary to assess such best interests.
The welfare and best interests of the child is given priority while making the order is evident from the provision set out under section [48(4)], where the conditions within the parenting order ensure:
- children are not exposed to domestic violence while in care of either parent;
- children are not be exposed to anyone drinking excessive alcohol or who is under influence of illegal substances;
In my opinion, since you only wish to maintain contact with your children, then you make a new parenting order or vary the terms of the existing order or discharge the existing parenting order under section [56] of the COCA with the consent of both the parties under section [57] of the Act. However, since an interim parenting order has been made, it shall be in force until your children attain 16 years of age. Therefore, until they attain the age it shall be the shared responsibility of both your wife and yourself to carry out day-to-day care of your children and provide for their daily needs. Nevertheless, since you wish Mary to look after Jessica, she will have to apply for a parenting order under section [47] to become the eligible person, provided she is granted leave to make such application.
There is a scope under section [47(2)] of the COCA, wherein any other person other than the parents of the child may apply for parenting order if either parent has expired or has been refused by court to contact the children. Additionally, when such parent does not attempt to contact the children despite being entitled to maintain contact with the children, the other member may apply for parenting order. Here, you may establish the following grounds:
- Alicia, though entitled to make contact with her children, does not attempt to do the same; and
- Jessica herself, does not want to maintain touch with her mother;
The court considers the best interest and welfare of the children as paramount while making a parenting order, the fact that Alicia is an alcoholic, will be a significant ground for courts to disallow her from maintaining contact with her children. Further, Mary being a respect elder and a social worker may provide information concerning drinking behavior and callous attitude of Alicia towards her children under section [132] of the COCA. The fact that Jessica has been staying at her place, shall make the report of Mary a stronger. This is because that her behavior and alcoholic issue might pose a risk to the children, which is contrary to the best interest and welfare of the children.
The Decision-making Process for Parenting Orders
In regards to the temporary protection order, the Domestic Violence Act 1995 [DVA] governs the issues relating to domestic violence in all its forms that is, sexual, physical and psychological forms, ensuring protection and safety to individuals. The three fundamental objective of the statute is protective, punitive and rehabilitative. The ‘protective’ element is to create hindrances against violent people by restricting some of their freedoms and imposing restrictions on them ensuring protection to people who are subjected to risks.
The ‘punitive’ element states that in case of breach of any protection order, the police may prosecute against the accused through the District court as such contravention shall amount to a criminal offence. The ‘rehabilitative’ element refers to the necessity of a respondent having a protection order to attend a program to stop committing violence. In order to grant a protection order, the following three elements must be established:
- there is a domestic relationship under section [4] and section [7] of the DVA;
- the protection order is necessary under section [14] of the DVA;
- there is a domestic violence under section [3] and [14(1) (a)] and poses a risk of harm or undue hardship under section [13] of the Act;
For establishing domestic evidence, the aggrieved person must establish psychological, physical and sexual abuse. Amongst these, psychological abuse is difficult to define, as it comprises numerous behaviors and acts that may amount to psychological abuse. As per section [3(4)] of the DVA, psychological abuse may include the following:
- a single act, and
- numerous acts that forms a behavioral pattern;
- Further, psychological abuse of a child has been defined under section [3(3)] of the DVA as any act that:
- permits or causes a child to hear or see any psychological, sexual or physical abuse of a person with whom the child shares a domestic relationship;
- subjects the child to real risk of hearing or seeing the occurrence of abuse;
The person against whom a protection order is issued may establish that he or she is the person suffering the abuse and not the one who caused the abuse or placed the children at risk of seeing the occurrence of such abuse.
In the affidavit, while presenting evidence of domestic violence, it must include:
- a clear description of the form of domestic violence;
- date of occurrence of such incident/incidents;
- narrative of the incident/incidents;
- emotional/physical injury caused to the aggrieved child or person;
- independent evidence such as police report, photograph or affidavit from a witness;
While granting the protection order under section [14(1)] of the DVA, the court must consider the perspective of the applicant or child with respect to the seriousness and nature of the behavior as well as the impact that such behavior have on the applicant, child or both. As per section [2] of the DVA, a child is defined as any person below 17 years.
As per section, Part 2A and sections [51A -51T] of the DVA, protected person may avail the option of attending a safety program. In case of non-compliance of the court order with respect to the attending of the non-violence program, it shall amount to an offence under section [51 T] of the Act resulting in penalty not exceeding $5000 and 6 months imprisonment. In case, temporary protection order is made without notice, the direction of the court to attend a program does not come into effect until 10 working days after service as per section [51E (2)(a)] of DVA.
Grounds for Opposing Parenting Orders
Further, if the respondent intends to object such direction for attending the program within such 10 working days as per section [51 E (2)(b)] and the program shall remain suspended until further decision of the court is made regarding the program. If a protection order is issued ‘on notice’, it refers to a situation where the respondent is served with a copy of all documents, thus, providing the respondent with an opportunity to respond to the notice or file a defense before the judge makes any final decision.
Furthermore, if the application is served ‘without notice’ it refers to a situation where the judge makes a decision without giving the respondent with any opportunity to respond or defense. The documents including the decision of the judge shall be sent to the respondent. According to section [77(1)] of the DVA, if after the temporary protection order is served and the respondent does not undertake any steps, such temporary order is likely to become a final protection order within three months after such order is issued.
Thus, I believe that as per the facts of your case, there is a scope under section [76] of the DVA, where you may file a Notice of Intention to Appear and a affidavit in support so that you get an opportunity to defend yourself. however, such Notice of Intention to appear may be filed between the day after the temporary protection is issued and before such order becomes a final order. Subsequently, the matter will go to a defended hearing.
Since you disagree with the temporary order and the temporary order has been issued without any notice, you have a right to defend yourself. At a defended hearing, the judge of a Family Court shall further consider the three grounds to decide the matter.
In Winslow-Burton v Poindexter [2016], it was observed that after the hearing, judge may discharge the temporary protection order under section [45 (1) (c)] of the DVA or make a final protection order under section [80] of the DVA. However, either the applicant or respondent may apply later to discharge the order that will restart the case under section [46-48] of the Act as was observed in Surrey v Surrey [2010].
In my opinion, You may defend the temporary protection order under section [76] of the DVA, by filing the Notice of Intention to appear within a date from the date on which the protection order was issued and before it becomes a final protection order. In order to defend against the domestic violence allegations, you must establish that the applicant that is Alicia has actually committed domestic violence in the form of psychological abuse. It may be established that
- there is a domestic relationship under section [4] and section [7] of the DVA between Alicia and the children, as she is the mother;
- domestic violence is established under section [3] and [14(1) (a)] posing a risk of harm or undue hardship under section [13] of the Act as is evident from several incidents when Alicia’s drinking habits have posed risk of harm to the children as she had caused injury to herself several times, resulting in psychological form of domestic violence.
- the protection order is necessary under section [14] of the DVA to safeguard the children against such regular psychological abuse.
The Legal Framework for Protection Orders
Further, the affidavit must include narration of all the following incidents including the emotional injury that it has caused to Jessica, thus establishing the impact of such incidents on the life of the children.
- She hides money to buy alcohol which is otherwise kept for purchasing food;
- She remains so drunk that she fell down off the staircase and broke her arm and had a bleeding nose;
- Despite requesting her to seek help for quitting her drinking habits, but she refuses to seek such help and keep drinking;
- She remains drunk to the extent that she often pisses on the floor and is least concerned about her children;
- She has attempted to attack;
- Jessica often have to drag her drunk mother to take her to bedroom;
After the matter goes for hearing, the judge either may discharge the order or may make a final order depending on the facts as was observed in Winslow case. Further, later, you may apply for restarting the case all over again and obtain protection order against Alicia.
Lastly, in regards to the issue related to determination of the paternity of the unborn baby of Alicia, the Status of Children Act 1969 and Family Proceedings Act 1980. A per section [5] of the Status of Children Act, any child that is born to a woman during her marriage or within 10 months of dissolution of marriage by death, the child shall be presumed to be child of his mother and former husband or her husband, as the case may be.
The prima facie evidence related to paternity has been stipulated under section [8] of the Status of Children Act 1969 according to which three ways may be applied to determine paternity:
- a certified copy of the birth certificate of the child that shows the name of the father;
- an order made by a court or any authority in a nation that is outside New Zealand, thus, declaring a person to be the father of the child;
- an instrument or legal deed that is usually signed by the mother and a man who addresses himself as father of the child before the solicitor;
In case the above methods do not apply, two options may be availed of to prove paternity legally that is, apply to court for a Declaration of Paternity and for Paternity Order. Under section [10] of the Status of Children Act 1969, a person may become eligible to apply for a declaration of paternity on the following grounds:
- a woman who alleges that a named person is the father of a child;
- a person who wishes to determine existence of relationship of father and child between two named persons who has a proper interest in the result;
- a person who usually alleges an existence of child and father relationship between another named person or the person;
A parentage testing or DNA testing is considered as best evidence to be able to provide to the court in case of dispute regarding the paternity parties only after voluntary consent given by both parenting parties. Under section [57] of the Family Proceedings Act 1980, either parent may refuse to give consent to undergo parentage testing or DNA testing. Nevertheless, under section [10(1)] of the Care of Children Act 2004, and section [167] of the Family Proceedings Act 1980, it is stipulated that in absence of conclusive DNA testing, the standard of proof be on the balance of probabilities.
In the affidavit supporting the application to the Court, the parties must provide necessary information regarding the relationship of the parties which might include:
- nature of sexual relationship between them;
- approximate date of conception;
- whether the mother was engaged in physical relationship with some other person during conception;
However, the Court may only recommend a mother to make a child undergo DNA test as ruled in Cairns v James [1992] but cannot order her and shall refer to United Nation Convention on the Rights of the Child [UNCROC] to make any such decision.
Establishing Domestic Violence
Now, on the facts here, in my opinion, in order to determine paternity relationship with the unborn baby of Alicia, you may either wait for obtaining the birth certificate copy of the baby, as it would have name of the father written on it. Secondly, a court that is situated outside New Zealand may declare a person as a father of a child. Lastly, a legal deed shall reveal the name of the father.
You may make an application before the court for a Declaration of Paternity to determine whether the child is related to yourself. Since you want to conduct a DNA test on the child, consent must be required of the Alicia. This is because as per section [57] of the Family Proceedings Act 1980, a mother may refuse to give consent to let her child undergo DNA testing.
In order to prove that you are not the father of the child, you may mention in the affidavit that no sexual relationship existed between Alicia and yourself instead she was in a physical relationship with her neighbor Fred.
Nevertheless, the court also cannot order a mother to let her child undergo DNA test but only recommend to conduct such test as was observed in Cairns case. Further, since Alicia has conceived during her marriage it is likely to be presumed under section [5] of the Status of Children Act, to be child of Alicia and yourself.
References
Bashir v Kacem [2010] NZFLR 865
Cairns v James [1992] NZFLR 535
Care of Children Act 2004
Domestic Violence Act 1995
Dye, Melanie Livet, and Keith E. Davis. “Stalking and psychological abuse: Common factors and relationship-specific characteristics.” Perspectives on Verbal and Psychological Abuse 18.2 (2015): 61.
Family Proceedings Act 1980
Guardianship Act 1968
Status of Children Act 1969
Surrey v Surrey [2010] 2 NZLR 581; [2010] NZFLR 1
Winslow-Burton v Poindexter [2016] NZFC 1953
[1] Care of Children Act 2004 at section [48].
[2] Care of Children Act 2004 at section [49].
[3] Care of Children Act 2004 at section [5(a)] and [5A].
[4] Care of Children Act 2004 at section [4(3)].
[5] Care of Children Act 2004 at section [58-60].
[6] Bashir v Kacem [2010] NZFLR 865
[7] Care of Children Act 2004 at section [132]
[8] Care of Children Act 2004 at section [48(4)]
[9] Care of Children Act 2004 at section [56] and [57]
[10] Domestic Violence Act 1995
[11] Domestic Violence Act 1995 at section [3], [14(1)(a)] and [13].
[12] Dye, Melanie Livet, and Keith E. Davis. “Stalking and psychological abuse: Common factors and relationship-specific characteristics.” Perspectives on Verbal and Psychological Abuse 18.2 (2015): 61.
[13] Domestic Violence Act 1995 at section [51E (2) (a)]
[14] Domestic Violence Act 1995 at section [76]
[15] Winslow-Burton v Poindexter [2016] NZFC 1953
[16] Surrey v Surrey [2010] 2 NZLR 581; [2010] NZFLR 1
[17] Status of Children Act 1969 at section [8]
[18] Family Proceedings Act 1980 at section [57]
[19] Family Proceedings Act 1980 at section [167]
[20] Cairns v James [1992] NZFLR 535
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