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DFC09

Drafting for Success in the Family Court

NZ $60.00
incl GST
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Kevin Muir Judge Mary O'Dwyer
Kevin Muir
Partner
Morgan Coakle
Auckland
Judge Mary O'Dwyer
Dunedin

Published:15 June 2009
Pages: 168 pages

Introduction

The work of a litigator in the Family Court is both challenging and rewarding. The challenge lies in keeping abreast of a broad and expanding jurisdiction and mastering the litigation skills necessary to be an effective and persuasive advocate. This is particularly the case when acting for clients who are in crisis. Their instructions are frequently jumbled, even chaotic. The goal for you in presenting their case is to remove the chaos and replace it with clarity.

Challenge lies in the evolving nature of the court. The Family Court remains true to its founding statute which requires Family Court proceedings to be conducted in such a way as to avoid unnecessary formality (Family Courts Act 1980 s 10(1)). This is consistent with the philosophy of the court which is to encourage resolution of disputes through counselling, conciliation and mediation (Family Proceedings Act 1980 Part II). The principles of the Care of Children Act 2004 (COCA) that emphasise the primary responsibility of parents to come to their own agreements and cooperate regarding the care and development of their children are in keeping with the philosophy (s 5(a) and s 5(c) COCA).

However, the Family Court is first and foremost a Court of Law. The court’s procedures must achieve appropriate formality and be applied consistently, albeit not in a rigid or inflexible way.

As Judge Inglis QC said:1

In the modern Family Court, given the magnitude of the issues it is often required to hear and determine, much of them formerly the province of the High Court, it is absolutely necessary to maintain the appropriate degree of structure and procedural formality when it is called upon to adjudicate. It is a specialist Court of law dealing with issues which can have a profound effect on the lives of those who seek its assistance. It is not only a matter of money: it is a matter of dealing with the scars left by their terminated relationship. For children and those under a disability the outcome can be of incalculable importance.

1 Judge Inglis QC, New Zealand Family Law in the 21st Century (Brookers: Wellington, 2007)

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