18 August 2021 | COVID Update

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He waka eke noa.

By Hannah Aziz.

 

It is widely recognised that grandparents play an important role in the lives of their grandchildren. When family disputes arise, grandparents can often feel left out in the cold and unsure of their legal options, or what access they may have to support during what is often an emotional, challenging, and stressful time. This article looks at how partly or fully funded family dispute resolution mediation (“FDR”), which is accessible in disputes around parenting and guardianship, may be a tool available to grandparents to help address such concerns.

 

FDR mediation to resolve parenting disputes

Alternative dispute resolution in this context has had a long gestation period, as far back as 1993,[1] with the formal establishment of FDR in 2013.[2] An independent panel was established in 2018 to review the 2013 reforms, to consider the effectiveness of out of court services such as FDR. This panel’s recommendations remain under consideration by the Government, with no changes as yet to the Family Dispute Resolution Act 2013.

FDR has been designed to promote the principles of the Care of Children Act 2004 (“COCA”)[3] and provides a forum for family members to discuss the needs and interests of the children and make their own agreements which will promote these.

Within the FDR framework, the FDR provider is required to[4]:

  • Identify the matters in issue between the parties.
  • Facilitate discussion between the parties in respect of those matters.
  • Assist the parties to reach an agreement on the resolution of those matters that best serves the welfare and best interests of all the children involved in that dispute.

Legal position of grandparents to apply for FDR

Parenting orders

As grandparents are entitled to apply for parenting orders if they are granted leave by the court,[5] they are entitled to apply for FDR.[6]

Guardianship

Different considerations apply in relation to guardianship. A person who seeks appointment as a guardian but whose appointment is opposed, does not have the right to apply for FDR in relation to that dispute.[7] On the other hand, the disputed appointment of an additional guardian may be a dispute between two existing guardians, in which case the dispute may be referred to FDR. Most often the parents of children are their guardians, but a range of persons other than parents may also be their guardians. All guardians may be parties to FDR in respect of parenting or guardianship disputes given the broad duties, powers, rights and responsibilities of guardians, and the requirement to act jointly.[8]

Fast Facts About FDR

  • FDR, which is either fully funded or partially funded,[9] provides for up to 12 hours of mediation to be used over a 12-month period. If the parties wish to continue past the funded hours, it is possible for the parties to continue with the mediator however the parties will need to fund any additional time spent.
  • FDR allows for the participation of multiple parties including grandparents, who are eligible to apply for funding.
  • Parties may apply for FDR mediation whether or not it has been ordered by the Family Court.
  • Parties may be represented by their lawyer at FDR and may have a support person present.
  • The FDR Centre offers a choice of mediator.
  • FDR Centre mediations may be conducted in person, via video conference or phone conference depending on the needs and locations of the parties.
  • Interpreters can be provided if required and are funded by the Ministry of Justice.
  • The whole process is usually completed within 12-16 weeks.
  • The FDR Centre consistently has more than 80% of FDR mediations settling either some or all matters in dispute.

 

The FDR Centre offers dispute resolution services in relation to other family disputes including mediation for disputes concerning relationship property, trusts, wills and estates, elder mediation and general mediation. More information on these services together with application forms are available at https://www.fdrc.co.nz/  

 

*     Hannah Aziz is a commercial litigation solicitor by background and qualified in England and Wales. She now works as a Knowledge Manager in FDR Centre’s Knowledge Management Team.  

 

 

 

 

[1] In 1993, a committee headed by Judge Boshier advocated establishing a separate family conciliation service.

[2] Family Dispute Resolution Act 2013.

[3] Section 5 Care of Children Act 2004 (“COCA”).

[4] Section 11(2) Family Dispute Resolution Act 2013.

[5] Section 47(1)(d) COCA with the leave of the court.

[6] Section 4 Family Dispute Resolution Act 2013.

[7] Section 46R COCA relates to disputes between actual guardians and does not embrace disputes between persons yet to become guardians.

[8] Section 16 COCA.

[9] A funding assessment is based on income and number of dependents. The maximum amount any party would be required to pay is $448.50.