district court logo

Darby v Loren [2024] NZFC 10528

Published 02 September 2024

Interim contact order — directions conference order — Family Court Associate — jurisdiction — Care of Children Act 2004, ss 3, 4, 5, 46Q, 48 & 56 — Legislation Act 2019, s 10 — Family Court (Family Court Associates) Legislation Act 2023 — Family Court Act 1980 — Family Court Rules 2002, rr 10A, 15, 175D, 175D (2)(j), 179, 416B, 416W(5A) & 416Z(3) — Oranga Tamariki Act 1989 — Family Violence Act 2018, ss 9(2), 10 & 11 — Johnson v Johnson [2017] NZHC 1564. This was a decision made by a Family Court Associate. The Family Court Associate made an interim order for the applicant's contact with the child. Before the directions conference, counsel queried whether a Family Court Associate had jurisdiction to make conference orders without a hearing. Family Court Associates were still new and so their jurisdiction was not clear. Family Court Associates come from the Family Court (Family Court Legislation) Legislation Act and their general jurisdiction mostly comes from the schedule in the Family Court Act. Family Court Associates have the power to preside over Care of Children Act (COCA) proceedings through the Family Court Rules however, this does not give them jurisdiction over COCA proceedings. For COCA proceedings, settlement conferences were governed by s 46Q of COCA which enabled a Family Court Associate to make "an order settling some or all of the issues", if everyone agreed. The Court Associate noted that under 46Q there was no clear distinction between a Family Court Judge order and a Family Court Associate order. Therefore, the Court Associate was bound by the same obligations to consider the child's best interests and welfare and as first and paramount consideration. The Court Associate found that the allegations of abuse between the parties to be needed to be determined by the Court. However, there was no suggestion in the evidence the applicant had used violence against the child or the child's safety was in danger in the applicant's care. The respondent supported an order for the applicant's unsupervised care. Unsupervised care would also allow the applicant and the child to have a stronger relationship. The interim parenting order was made and the Court Associate had the jurisdiction to do so. Judgment Date: 15 August 2024 * * * Note: names have been changed to comply with legal requirements. * * *