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This book is only available in PDF format 
Published: 5 October, 2004
Pages: 88

The exercise of the Family Court’s jurisdiction to grant ex-parte (without notice) applications is one of the most contentious issues facing the Family Court at present. This is particularly so because of the inter-play between the provisions of the Domestic Violence Act 1995 and s 16B of the Guardianship Act 1968, which can have the effect of restricting contact between a parent and child for several weeks when without notice orders are made.

The fundamental principles and statutory tests governing without notice applications are the foundation of the jurisdiction.

In March 2003 the Law Commission in its Report 82 Dispute Resolution in the Family Court (page 114) recognised the competing interests in without notice applications. They are, on the one hand, the interests of applicants and children to be able to get protection urgently through speedy and effective access to the Court. On the other hand the respondent’s rights must be protected in without notice applications. That is a basic right to natural justice as codified in s 27(1) of the New Zealand Bill of Rights Act 1990. Recent cases in the High Court have emphasised the importance of balancing the parties’ rights for protection against the respondent’s right to be heard. The High Court has emphasised that these powers must be exercised with caution.

How can lawyers acting for clients in domestic violence cases and the Family Court improve practice in this area? The aim of this seminar is to identify ways in which legal practice can improve and ways in which the Family Court can improve its processes to ensure effective and fair treatment.

Authors

Author(s): Vivienne Crawshaw, Judge O'Dwyer

Vivienne Crawshaw Judge Mary O'Dwyer
Vivienne Crawshaw
Gubb & Partners
Auckland		 Judge O'Dwyer
Family Court
Dunedin

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