LEGAL LOWDOWN
NEWSLETTER #9 March 2014
BEWARE OF PUBLIC INTERNET SPOTS
Immigration
2
Registrations for the pacific quota have opened. We share the details for registration including details about who is eligible for registrations and the relevant dates.
Services
3-6
Family Court 7-13
We outline our current services and events we have supported so far this year. We also look at a recent case that deals with the importance of online security.
We provide an overview of the changes to Family Court that took effect on 31 March 2014.
RACE RELATIONS DAYS 2014: I AM AOTEAROA NEW ZEALAND
Race Relations Day 21 March marks Race Relations Day in New Zealand. This year’s Race Relation Day theme was “I am Aotearoa”. CLSST is a proud supporter and participant of the New Zealand Diversity Action Programme which is facilitated by the Human Rights Commission to celebrate the cultural diversity of our society, amongst others. This year, CLSST, in collaboration with Manurewa Citizens’ Advice Bureau, set up an information stall at the Manurewa Library to promote increased awareness of race relations in New Zealand. A copy of our Race Relations Day information pamphlet can be downloaded via our website: http://www.clsstlaw.com/resources.ht ml
CLSST NEWS: Recent changes that affect our community IMMIGRATION NEW ZEALAND: PACIFIC QUOTA REGISTRATIONS OPEN
Citizens of Samoa, Tonga, Kiribati and Tuvalu are invited to register for the 2014 ballot under the Samoan Quota and Pacific Access Category between 1 and 30 April 2014.
Up to 1100 Samoan citizens, 250 Tongan citizens and 75 citizens from Kiribati and Tuvalu are selected by ballot to be considered for the grant of residence in New Zealand. Eligible citizens of these four countries must be aged between 18 and 45 to register under the ballot. The successful applicants selected from the ballot process will have until 6 March 2015 to lodge their residence visa applications; the principal applicant must also have an acceptable job offer from a New Zealand employer. Prospective ballot registration applicants are reminded to make sure they have the required forms and necessary documents. Only one ballot registrations form is needed for each family. Copies of birth certificates or front page of passports must also be provided for everyone named on the registration form. Immigration New Zealand will contact each ballot applicant via a mobile text message or email to acknowledge receipt of their ballot registration from including their Client Registration Number. Ballot applicants will need to hold on to this number to check the status of their registration after the ballots are drawn on 6 June 2014. Registration for the Samoan Quota is free but there is a NZ$70 registration fee for the Pacific Access Category. This fee is reduced to NZ$30 for those who have registered in a previous year. An additional fee of AUD$12 is payable for Kiribati citizens registering from Kiribati. Ballot registration forms are available from the nearest Immigration New Zealand Office. For more information contact Immigration New Zealand directly on 0508 558 855 Source: Immigration New Zealand.
OUTREACH CLINICS: ENGAGING WITH OUR COMMUNITY As part of our commitment to our community, we hold several outreach clinics throughout our service area to maintain face-to-face engagement with our clients. Otara CLSST Office 120 Bairds Road Otara
Otahuhu We currently do not have an Outreach clinic in Otahuhu
Appointments available: Monday – Friday Pukekohe Heartland Services 2 King Street Pukekohe
Manurewa Manurewa Marae 81 Finlayson Ave Manurewa
Appointments available: Fortnightly on Tuesday
Appointments available: Wednesday
CLSST SERVICES
Manukau Salvation Army 16B Bakerfield Place Manukau
Papakura Papakura Citizens Advice Bureau 4a Opaheke Road Papakura
Appointments available: Monday-Friday
Appointments available: Thursday
Flat Bush Hilltop Community Centre 30 Hilltop Road Flat Bush
Chapel Downs Chapel Downs Primary School 170 Dawson Rd, Flat Bush Appointments available: Fortnightly on Wednesday
Appointments available: Fortnightly on Friday
COMMUNITY EVENTS & SEMINARS
Radio 531pi Legal Info On-Air Radio 531pi is a pacific focused radio station which has been running since 1993. It provides communities with a mix of news, opinion, information, talk back and music. This month we commenced our weekly legal information slot on Radio 531pi, with host of the Pacific Drive, Malo Toe. Our legal information topics align with our Legal Lunchbox Series; this month we discussed Tenancy Law. Tune into Radio 531pi on (station,) from 2.00 – 2.30pm every Tuesday, to listen to our lawyers provide helpful legal information to assist the community with everyday legal issues.
LEGAL LUNCHBOX SERIES We are extremely pleased with the positive feedback for this months’ Legal Lunchbox on Tenancy Law. The sessions were presented by our Legal Education Lawyers Johnny Nu’u, Wi Pere Mita and Tu’ulata Titimanu. Many of those who signed up for this months’ sessions are also keen to stay on for the immigration sessions. Find out more about our upcoming legal education series at page 6 below. Pictured Left: Participants from our Legal Lunchbox Series 2, on Tenancy Law held at the CPO Business Centre in Otahuhu.
ASB Polyfest 2014: Youth Engagement
The ASB Auckland Secondary Schools Maori and Pacific Islands Cultural Festival (or Polyfest) was hosted by Western Springs College. The theme for the Polyfest was “Care for our seas and our land, so that the safety of our homes, both present and past endures forever”. Our lawyers Johnny Nu’u and Wi Pere Mita got amongst the action to spread the word about our Free Legal Services with the purpose of increasing youth awareness of legal rights in New Zealand. Check out some of the photographs we took of the students and community members at Polyfest. You can view all photos on our FaceBook page: www.facebook.com/clsstlaw
Privacy Law – Risks of keeping old emails & using unsecured public WI FI Technology has simplified the way we live with many of life’s functions at the tip of a finger. However, a recent case dealt with by the Office of the Banking Ombudsman has highlighted the dangers of modern technology. The case involves overseas visitors who placed over $100,000 on a term deposit over three years with a New Zealand bank. The bank received emails requesting funds be withdrawn from the overseas visitor’s account. The request was accompanied by documentation with what appeared to be the female visitor’s signature. The overseas visitors did not authorise such withdrawals however the bank complied with one of the requests. The visitors complained to the Banking Ombudsman and sought compensation. Following an investigation it was found that it was most likely that the female visitor’s email was intercepted while using an American airport’s WI-FI to send confidential emails including bank details and a signed copy of an employment agreement. The Ombudsman also found that the bank’s practice were not in line with the rest of the industry. It recommended that the bank reimburse the overseas visitors the full amount plus interest.
The bank in question has since taking steps to properly verify the legitimacy of email correspondence and transactions. Source: Privacy Commission https://www.bankomb.org.nz/news-and-publications/newsletters/2013-2014.
MAORI ACCESS TO JUSTICE: Cultural Engagement On 26 March 2014 CLSST hosted a Maori Access to Justice Hui with the purpose of increasing public awareness of opportunities for Maori to access to justice. Those in attendance were fortunate to hear from guest speakers Judge Hikaka of the Rangatahi Court and Maria Graham of the Maori Land Court. Following these sessions the attendees participated in an interactive workshop where they identified the current barriers to justice and proposed ways in which organisations could overcome such
barriers. Attendees are now working towards Maori focused initiatives and projects which are aimed at improving access to justice for Maori. If your organisation would like to be involved, please email Wi Pere Mita at wipere.mita@clsstlaw.com for any updates. Take a look at some of our pictures from the event via our FaceBook page: www.facebook.com/clsstlaw
Pictured: (Top Right) Judge Hikaka presenting on Rangatahi Courts, (Bottom Right) Maria Graham from Maori Land Court presenting on dealing with Maori Land effectively (Bottom) Participants at our Access to justice Hui.
Neighbours Day Aotearoa 2014 29-30 March 2014 is Neighbours Day Aotearoa. Neighbours Day is about taking the time to engage in small and local acts of neighbourliness to make New Zealand neighbourhoods safe, fun and friendly. In support of Neighbours Day we have produced a poster entitled “5 Facts on rights of Neighbours�. The poster provides useful information about common neighbour dispute topics and rights.
To download a copy of the poster, visit our website: http://www.clsstlaw.com/resources.html
LEGAL EDUCATION SEMINARS 2014
FAMILY COURT CHANGES: CHANGES TO FAMILY COURT PROCEEDINGS AS AT 31 MARCH 2014 Changes to the family justice system come into effect on 31 March. These changes involve a new, out of court track that will primarily affect Care of Children Act (CoCA) applications. Domestic violence and urgent care of children matters will continue directly to the courts unchanged. The family justice requirements apply to all caregivers with a parenting role, such as grandparents raising children. The new system is divided into three tracks: 1. Self-resolution 2. Assisted resolution 3. In-court resolution Self-resolution A new parenting plan is being introduced. This plan is free and available for download at http://www.justice.govt.nz/familyjustice/about-children/making-decisions-about-children/getting-help-outside-the-court/reaching-your-ownagreement/parenting-plan. The plan covers living arrangements, parental contact, schooling, health, and child support agreements. The Parenting Through Separation (PTS) course will continue and is now a mandatory pre-court entry requisite. This is a free, small group course of up to 20 people and consists of a series of two, 2 hour sessions. Bookings are essential. Programme providers can be located through www.justice.govt.nz/family-justice or on 0800 2 AGREE (0800 224 733). Separating partners are advised to attend different sessions and should notify the programme provider of their partner’s name when booking. A certificate will be issued on completion of a PTS course. This certificate is valid for two years. Attendance will also be recorded on an external Resolution Management System; court staff will have read-only access to this system to confirm attendance should the certificate become lost. Assisted resolution Parties are encouraged to attend a PTS course before embarking on assisted resolution. The Family Dispute Resolution (FDR) service is being introduced. This service is a mandatory pre-court entry requisite and involves two elements: 1) assessment, and 2) mediation. FDR is conducted by independent mediators who can be located through www.justice.gozt.nz/family-justice or on 0800 2 AGREE (0800 224 733). FDR Assessment The FDR mediator will undertake an initial assessment of risks (e.g. harm to children) and parties’ suitability to undertake FDR.
Unsuitable parties will be provided an exemption from the FDR process. Factors for unsuitability include: 1. Domestic violence; 2. Inability to attend; 3. Refusal to attend; 4. The case relates to a child subject to proceedings already commenced under the Children, Young Persons and their Families Act; 5. A party is making a without notice application to the court. A without notice track will be filed with the court where risk is identified. Preparatory counseling The FDR mediator may deem parties suitable for mediation but requiring counseling to participate effectively. Three hours of preparatory counseling will be available per case. FDR Mediation Mediation sessions may involve parties separately or together; it may also involve other family members, such as grandparents or whÄ nau. The mediation will attempt to reach agreement on matters including living arrangements, day-today care, schooling and medical matters, and cultural and religious matters. If an agreement is reached, the FDR mediator will set out the agreement in a form. This agreement is not legally enforceable; parties may wish to apply to the Family Court for formal recognition of the agreement as a Parenting Order, which would then make the agreement enforceable by the Court. If no agreement is reached, the mediator will provide their assessment to parties. The assessment includes the result of the mediation, elements agreed during mediation, whether the mediator advises a Settlement Conference, and whether legal representation is needed. If parties choose to apply to the Family Court, a copy of the mediator’s assessment will be provided to the court. An Issues Conference may be called before proceeding to a Settlement Conference. This is a meeting with a judge without legal representation. The judge will decide the next steps of the case and whether legal representation is needed. Funding FDR services are not free. Parties are responsible for paying for FDR sessions, although some people may be eligible for legal aid. Eligibility is based on the income threshold for Civil Legal Aid. An FDR mediator or lawyer can assess eligibility and approve funding. An online calculator for assessing eligibility is also available on the family justice website. Funding covers the cost of the mediator and counselor, if required.
Other – FDR provider requirements FDR mediators must be approved by an Approved Dispute Resolution Organisation (ADRO. Such organisations include AMINZ, LEADR, and NZLS. The Ministry of Justice will contact an FDR supplier; the supplier will then contact an approved mediator. All FDR mediators will have contact details listed on the family justice website. Only approved FDR mediators may issue forms for court. Other Out-of-Court Services A Family Legal Advice Service (FLAS) is being introduced. Providers are approved family lawyers. FLAS is available only to those who meet the eligibility threshold, and access to its full services is limited to once per dispute during a 12 month period, including any assistance with court forms. The service includes explaining out-of-court processes and help with completion of court entry forms for parenting or guardianship orders. It does not include representation, reviewing FDR agreements, filing court applications, legal advice once the matter is before the courts, or legal aid matters. FLAS does not complete without notice applications. FLAS is not legal aid, but it is funded for those meeting the eligibility threshold. Eligibility is based on income and number of dependents; it is aligned with the eligibility for civil or family legal aid. An eligibility calculator can be found on the family justice website. Eligibility can be determined by an FLAS lawyer of FDR provider. To determine eligibility, people must complete a funding declaration form with the lawyer and provide evidence of income. Funding for eligible applicants is available for 12 months, unless their financial circumstances change. In-Court resolution There are three Family Court tracks: 1. Simple track 2. Standard track 3. Without notice track No pre-requisites are required for the simple and without notice tracks, but parties undertaking the standard track must have completed PTS and FDR. A judge may move cases from one track to another and require people to complete PTS and FDR. Without notice applications may be filed by lawyers on behalf of the applicant; simple or standard track applications are filed by the parties themselves. Simple track This track is designed for parties who have reached agreement and want the agreement consented to in court or for undefended proceedings. There are no PTS or FDR pre-requisites; however, agreements reached as a result of PTS and FDR may be dealt with under the simple track.
Applications are filed by the parties themselves, and parties represent themselves unless a judge directs a formal proof hearing; if a hearing arises, parties can obtain legal representation. Applications are dealt with on paper unless a judge considers oral evidence is necessary. Standard track This track is designed for parties who have not yet reached an agreement and provides further opportunities for agreement before reaching a formal hearing. There are two pre-requisites before proceedings can be filed at the Family Court. Parties must: 1. Have completed PTS within the last two years; and 2. Have completed FDR within the last 12 months. Standard track applications are filed by the parties themselves. When filing, parties must provide evidence of attendance at PTS and participation in FDR or evidence of a granted exemption. If evidence cannot be produced, court staff may be able to confirm PST attendance and FDR participation through the Resource Management System database. Parties may also apply to the court for an exemption from PTS or FDR. A PTS exemption may be granted at time of filing if the registrar concludes: 1. Parties are unable to participate effectively, e.g. overseas, in custody, language difficulties; or 2. The application is without notice. A FDR exemption may be granted by the registrar at time of filing if: 1. At least one party or child has be subject to domestic violence by another party to the dispute; or 2. Parties are unable to participate effectively in FDR, e.g. overseas, in custody, language difficulties. The standard track may have up to five events before the matter proceeds to a hearing. At each stage the judge must raise the possibility of settlement with the parties. The first event is in-chambers consideration. The judge will review papers and decide on how best to proceed. The second event is an optional issues conference. The judge meets the parties to seek more information. No legal representation is allowed. The third event is an optional settlement conference. This is a longer, more formal agreement conference. Legal representation is at the judge’s discretion.
The forth event is an optional directions conference. This conference is to prepare for court proceedings. Legal representation is permitted. The fifth event is an optional pre-hearing conference. This ensures all documentation and parties are ready for the hearing. Legal representation is permitted. Where no agreement has been reached after the first five steps, the final event is the hearing itself. Parties may be represented by lawyers. Parties may resolve their dispute private during at any time during the process. Without notice track The without notice track is designed for urgent applications or where there is concern for the safety of children. There are no PTS or FDR pre-requisites. Lawyers can file applications on behalf of a party, and parties are permitted legal representation throughout as currently applies. Legal aid is available. A judge may first direct proceedings to a directions conference. An initial order may be made or varied at this conference; the case will also usually be set down for a hearing. If a case is classified as “complex�, it must be transferred to the standard track. The judge who defines the case as complex must personally take over all subsequent steps in proceedings. To be classified as complex, one of the following criteria must be met: 1. There is a serious risk to the physical or psychological safety or wellbeing of any child or the safety of any person may be compromised. This is to be based on the allegations of serious abuse or violence, or personality or behavior of any of the parties; and/or 2. The case presents novel or difficult legal, technical, or evidential issues; and/or 3. Oversight by a single judge would be appropriate to the circumstances of the case. Concurrent applications Where a COCA application is made at the same time as an application under another act, such as a CYF application, the judge may decide: 1. To run both concurrently. 2. To deal with the more urgent application before the CoCA application.
In the first instance, where parties have legal representation for the non-CoCA application they may retain legal representation for both proceedings. In the second instance, the judge may transfer the CoCA application to the without notice track and allow parties to retain legal representation, or the judge may process the urgent, non-CoCA application first and direct the CoCA application to the standard track. Costs Judges will be required to decide whether parties should contribute to costs of services incurred by the court for applications under the Care of Children Act, the Child Support Act, or the Family Proceedings Act. Services may include appointing a lawyer for the child or acquiring specialist reports (e.g. psychologist). Costs include time spent on the case as well as travel and other expenses. Parties cannot refuse to have a lawyer or specialist appointed by the court. Applications withdrawn or resolved privately may still incur costs to date. The government will always cover at least one-third of costs; but the Ministry of Justice advises all parties going to court to expect that they will be ordered to contribute. If no exceptions apply, the judge must direct parties to each pay an equal share of two-thirds total cost. The judge has discretion to split costs unevenly — including one party paying nothing — if domestic violence or the conduct of any party were issues. Exceptions Exceptions to contribution include: 1. Parties are receiving legal aid. Refer to Legal Services Act 2011, s 45; 2. The party has a child placed under their care through the Child, Young Persons and Their Families Act, e.g. child, youth, and family caregivers; 3. The application relates to an abducted child to or from New Zealand, i.e. Hague proceedings; 4. It is the cost of a lawyer appointed by the court to interpret a complex legal matter; 5. The judge considers contribution costs will cause the party or their dependent children “serious hardship”. Serious hardship is determined by the judge. It includes “significant financial difficulties” arising from parties being unable to meet: 1. Minimum living expenses according to “normal community standards”; and/or 2. Medical treatment for illness or injury suffered by a party or their dependent children; and/or 3. The educational costs of a dependent child. Submissions Parties are invited to make submissions on why contributing to costs will cause serious hardship or why the cost burden should not be equally shared between parties after final costs are known. Parties have fourteen days to make submissions. There is a further fourteen days to respond to the submissions made by another party. Submissions are generally in writing, but a judge may direct parties to court for submissions. Further information: Community Legal Services South has pamphlets relating to these changes. Please contact us through email admin@clsstlaw.com.