As families become more complex these days, it is important to understand the legal implications of what will happen when circumstances change or relationships end.
Care of Children
Ending relationships when children are involved can be particularly distressing for all parties. We empower parents to resolve these matters quickly and safely, ensuring children are well protected and supported during these difficult times.
There are several key steps involved in planning your new future, and it is important to seek appropriate legal advice to fully understand the potential outcomes. In 2014 significant changes occurred to the processes of the Family Court concerning care and guardianship of children. We will guide you through matters such as Parenting Orders, which relate to the day to day care of and contact with children, as well as guardianship of your children, which may involve extended family members and/or grandparents.
These matters can be handled urgently if there are any concerns about a child’s safety, including drugs, violence or mental health issues. Applications may also be required relating to a child’s schooling, health, or potential relocation if one parent is looking to move. Counselling and/or mediation are often useful to resolve matters as quickly as possible.
The Care of Children Act promotes the welfare of our children, ensuring their best interests are central to any legal decisions made regarding their welfare.
The Hague Convention
The Hague Convention is a treaty that assists people to bring their children back from overseas, if they have been removed to another country by one parent without the consent of the other.
Whilst this situation is not very common, if it does arise, legal advice should be sought immediately to understand your rights. Not all countries are signatories to the Hague Convention.
It is important to protect yourself and your assets when entering a relationship, or ending a relationship.
Property Agreements upon separation
When a relationship ends, it is important to resolve the division of assets, including real estate, vehicles, household chattels, superannuation funds and business interests. There may also be other entities involved, such as family trusts and companies. There are laws which dictate what you may or may not be entitled to, based on the nature and length of your relationship, the original source of the assets, and the current status of the assets.
We can assist you to negotiate and finalise the terms of your relationship property agreement, offer you legal advice, and finalise the division of your assets.
Contracting Out Agreements
Formerly known as “Pre-nuptial Agreements”, Contracting Out Agreements are becoming more common these days, particularly as people enter into a subsequent, committed relationship. A Contracting Out Agreement sets out which items of property each party wishes to keep separate (possibly to protect for their children of a previous relationship), and which items will be shared by the two partners. Whilst this can be a difficult subject to confront, it is important that people have these agreements in writing in the correct legal form, so that they can get on with their lives with peace of mind.
Relationship property proceedings in Court
If people are not able to resolve their relationship property issues by agreement, then we are able to assist people to file proceedings in Court.
When relationships end abruptly, there may also be the need to register notices of claim over titles to property, or to apply to the Court for urgent orders to prevent property being disposed of, and to maintain the status quo whilst matters are being resolved.
When people have been in a close, personal relationship, and a party has suffered abuse - including physical, emotional, mental, sexual or verbal abuse - we can help that party seek protection from their partner or family member(s).
In some urgent circumstances, Temporary Protection Orders will be granted by the Court without notice to the other party, thereby ensuring that the abuser is kept away and the applicant is safe, in the meantime.
When both children and property are involved, matters become more complex. We can help you apply for an urgent Interim Parenting Order, a Protection Order and Tenancy or Occupation Order, to enable you to remain in your home to the exclusion of the other party. You can also apply for an Ancillary Furniture Order, to protect the furniture and appliances in the home.
Protection Orders and associated orders are enforceable by the Police, and there are serious criminal consequences for breaching such orders.
Adoptions are becoming less common these days, as the Court generally prefers to invoke the Care of Children Act, which involves guardianship orders and parenting orders.
If you are interested in applying for an adoption order, we can help you through the process of assessing your chances of success, preparing your application, arranging consent from the mother and/or father (or seeking an order dispensing with the father’s consent, if required), and then following the application through to a Court hearing. A report from a social worker will be required by the Court, to assess whether or not an adoption order is appropriate and safe for the child
Oranga Tamariki / Care and protection of children
The Oranga Tamariki Act 1989 provides for Oranga Tamariki (previously CYFS) to become involved with families when Oranga Tamariki have received a report of concern about the care or safety of a child or young person.
The Act provides for Oranga Tamariki staff to uplift children from parents or caregivers if they believe that care and protection concerns exist.
The total number of children and young people who had reports of concern made about their care in 2017 came to 59,317. The total number of children and young people in care nationwide in 2017 was 5,708 (up from 3,884 in 2012). Of that figure, 408 children were in Te Tai Tokerau region (taken from the MSD/Oranga Tamariki website).
There are currently around 6,100 children in state care, 70% of whom are of Māori descent (TVNZ April 2018).
Having a child uplifted from your care is obviously a very scary and upsetting experience, both for you and your children. It is important that you seek legal advice early on in the process, as you will need to determine whether or not to defend the Court proceedings brought by Oranga Tamariki and/or how to best try and work with the social workers involved.
We can help you through this process. You may want to defend the applications brought by Oranga Tamariki and/or apply for an access order to ensure that you have ongoing regular access with your children, while they are in state care. You will want to have some input into the plan being prepared for Court by the social worker.
We also act for people who are encouraged by Oranga Tamariki to make applications under the Care of Children Act 2004 to have the permanent care of the children in their care, and where Oranga Tamariki no longer need to be involved.
Bridget is a lawyer appointed by the Family Court to represent people who are facing an application under the Mental Health Act 1992 for a compulsory treatment order to be made against them.
She has experience in meeting with clients at the Tumanako Unit at the Whangarei Base Hospital, taking instructions, and appearing with the client before the Judge.
There are two different kinds of Compulsory Treatment Orders which can be made – an inpatient treatment order (which means that the client needs to remain in hospital for a period), or a community treatment order (which means that the client can be treated in the community).
Clients are also able to apply for a review of their compulsory status, and have that application heard by a Judge.
We also represent people at hearings before the Mental Health Review Tribunal.
Every child is entitled to know who his or her parents are.
Of course, the mother of a child is nearly always registered on a child’s birth certificate. However, in some circumstances, the father is not named. This may be because the father is unwilling to have his name entered onto the birth certificate, or because he is seeking confirmation of his paternity. This confirmation can be achieved by way of DNA testing.
If you are having any difficulties having the father’s name registered on your child’s birth certificate, then we can assist you to resolve this.
Also, if you are possibly the father of a child but you are not sure, then we can provide you with assistance and legal advice.
We provide advice about the Child Support Act. We can advise about Applications for administrative reviews, although we are unable to appear at those reviews ourselves, as lawyers are not allowed to appear.
We can also prepare Appeals from administrative reviews to the Family Court, and give general advice about how the Child Support Act works to assist you to work out the best option.
Sale and Purchase of a Business
We can help you with buying, selling or refinancing a property. From drafting an Agreement for Sale and Purchase through to checking the Certificate of Title, advising you on LIMs and Building Reports, and progressing through to settlement.
It is important to get legal advice early in a contemplated sale or purchase of a business as to issues such as confidentiality during the due diligence process, what entity you wish to complete the transaction, how the Agreement for Sale and Purchase of a Business is structured and what factors are specific to your business / industry. Once the agreement is unconditional, we can assist you through to settlement.
We can help you with commercial leases and all legal matters related to running your business.
Whether you are a Landlord or Tenant, it is good to get legal advice before you sign an Agreement to Lease or a Deed of Lease to ensure you are fully aware of your obligations under the Lease. You may need legal advice on how the Lease operates practically on a day to day basis.
Sale and Purchase of a Business
It is important to get legal advice early in a contemplated sale or purchase of a business as to issues such as confidentiality during the due diligence process, what entity you wish to complete the transaction, how the Agreement for Sale and Purchase of a Business is structured and what factors are specific to your business/industry. Once the agreement is unconditional, we can assist you through to settlement.
While many people don’t like to think about dying, it is important to remember that your Will can prevent challenges or uncertainties for your loved ones after you have gone.
Your Will is designed to determine what will happen to your property upon your death. You can also appoint an additional guardian for your children. We can help you draft your Will, ensuring that your Estate is managed by appropriate people, and that your property is left to the people you want to leave it to. The law sets out which people you may owe a moral duty to, and this needs to be taken into consideration.
Most people don’t realise that getting married will render any existing Will you have void (unless the Will is specifically drafted “in contemplation of marriage”). This can be particularly important for people marrying for the second or subsequent time. It is also important to note that if your Will is not signed and witnessed correctly, it can be disregarded by the Court. It is therefore very important to seek legal advice when finalising your Will.
Often when people are coping with the loss of a loved one, paperwork is the last thing they want to face. We can help manage all of the administration associated with a person’s Estate after they have died, ensuring their wishes are carried out as outlined in their Will.
We also assist people to bring claims (or to defend claims) against deceased estates, under the Family Protection Act and the Testamentary Promises Act. These situations arise when a person believes that the deceased has not provided adequately for them, or that the deceased has breached a promise made to them.
Enduring powers of attorney provide for another person to manage your affairs if you are no longer able to manage things for yourself, and also to make decisions for you about your personal care and welfare.
While we like to think that nothing bad will ever happen to us, enduring powers of attorney are necessary in many circumstances. They are important not only for elderly people, but also for those who have suffered a head injury or a stroke; or even if you are overseas and need important documents signed while you are away.
We can help you to ensure that your property and personal welfare is taken care of by somebody whom you trust, if you are no longer able to take care of these matters for yourself.
If you have not appointed powers of attorney, this can leave your loved ones in the position of having to apply to the Family Court for orders, which can be a lengthy, stressful and costly process. While we recommend that everybody should have powers of attorney in place, we also regularly assist people to make applications to the Court for orders.
Trusts are an important part of modern life and people may wish to have them for various reasons that essentially involve asset protection. Charitable Trusts are also an important part of the legal landscape.
Whether it is to protect your family home or your business it is important to structure your trust correctly. With the abolition of gift duty on 1 October 2011 there are various reasons as to why gifting all at once or following a graduated gifting process may be right for you. Reviewing your trust to ensure it is compliant with the changing legal environment is crucial.