Often at Christmas we see the holiday season ruined by disputes over access and parenting when parents cannot agree how to split the time with their children. This can be a heart wrenching and costly exercise as urgent applications to the Court are made or long planned events disrupted.

After a separation there are a lot of things to sort out, including the care and contact of children. Sometimes, even when parents have managed to reach an agreement about care and contact over the term time, school holidays can be a cause of new conflict for separated parents.  Other trigger points for conflict can also include special occasions like statutory holidays, religious celebrations, birthdays and so on.

The best way to avoid these matters from becoming urgent is to anticipate and plan these special occasions well before they happen.  That way, separated parents are less likely to suddenly finding themselves in a dispute which no clear answer, and a date moving closer and closer.

When a dispute has become urgent, parties are much less likely to be reasonable and empathetic towards each other. The pressure of an urgent disagreement can escalate the intensity of a dispute and this can cause a lot of stress for everyone involved, including the children at the centre of the dispute.

If you are a newly separated parent, we recommend these tips for getting an agreement in place, well before things get to the urgent state:

1.    Put in place a parenting agreement

A parenting agreement records the care and contact arrangement between parents.  A well-drafted agreement should provide for all eventualities, so that there is no uncertainty about what is to happen on special occasions.

You can reach a parenting agreement on your own, or you can ask for assistance from a family lawyer who is experienced in drafting these types of agreements.

We recommend that parties record their parenting agreements in writing, so that there is less room for disagreement about what was said at a later stage.

Parenting agreements are not enforceable in the Court.  This can be a good thing for parties who are on good terms, because it allows for flexibility.

If, however, the parties do end up in a dispute about the parenting agreement, neither one of the parties will be able to ask the Court to enforce it.

If parties are concerned about lack of compliance, they can ask the Court to turn their parenting agreement into a court order, by consent.  A court order is enforceable, which means if either party does not follow it, penalties can be imposed by the Family Court. 

2.    Parenting Through Separation (PTS)

The Parenting Through Separation course (or PTS) can help you to plan ahead by alerting you to some of the things you need to consider when making a parenting agreement.  To find out more about this free course, or to contact a local provider you can look at the Ministry of Justice website.

3.    Counselling

After a separation, parties are likely to experience bouts of anger, grief and sadness.  Counselling can be helpful to ensure that parents are able to deal with these emotions in a way that is not negatively impacting on the co-parenting relationship and their relationship with their children.

Counselling will often carry some financial cost, but depending on your location and financial position, you may be able to get free or subsidised counselling.  A good starting point is to discuss this with your General Practitioner.

Communication counselling can help separated parents communicate better.  Communication counselling can be obtained privately, or can be ordered by the Family Court.

Counselling for children is also available to help them come to grips with the changes they are going through.  You can pay for private counselling or seek community counselling via organisations like Skylight and Family Works.  

4.    Get some legal advice

Getting legal assistance can be helpful for parties who are not sure of their legal rights and obligations, or if they are not sure how to resolve an issue.  Lawyers can also be helpful to parties where the communication has broken down, or there is a stalemate.

Experienced family lawyers will be able to give you tips and ideas for dealing with parenting issues, make will sure you have thought of everything in advance, and can also do the negotiation with the other party on your behalf.  This can be particularly helpful when emotions are raw and intense, or the parties are not on good terms.

If there is an urgent dispute or safety concerns (for instance a risk that a child will be removed from New Zealand, or there is domestic violence) a lawyer can help you to negotiation an agreement, get into a safe place, or make an urgent application to the Family Court.

5.  Family Disputes Resolution (FDR)

Family Dispute Resolution (FDR) is available from the Ministry of Justice website. FDR is where a trained mediator, with a background in family matters, will help the parties in dispute identify the reason for their disagreement, assist the parties to talk about their perspectives, and guide them into exploring solutions.

The mediator will not make any decisions for the parties, so they retain control over the outcomes.

Mediation is confidential and free if you qualify for legal aid.  If you do not qualify for legal aid, you will have to pay $448.50 for your share of costs.

5.    Family Law Arbitration

If there is an urgent dispute that needs to be resolved quickly, arbitration might be a good option. 

Arbitration is where the parties agree to be bound by the decision of a neutral and independent third party.

The parties will have control over the process (for example whether the parties will present their evidence in writing or in person, where the parties will meet (if at all), what evidence will be put in front of the arbitrator, whether lawyers will be involved, timeframes and so on).

The parties can also choose who they want to appoint as the decision maker (for instance a trusted person, a lawyer or another professional). 

Arbitration has to be paid for privately.  Costs will vary significantly, depending on who the parties appoint as an arbitrator and what process the parties agree on.

A decision about parenting, made by an arbitrator, can only be enforced if the Court approves the arbitrator’s award. 

6.    Asking the Family Court for assistance

Court proceedings are very stressful and require a significant financial investment (if you do not qualify for legal aid).  Unless your dispute is urgent, it can also take a long time to get a decision.  Court should therefore be used only as a last resort.

Sometimes Court proceedings cannot be avoided.  In that case, a Judge will hear evidence from both parties, and will make an order about what should happen. 

Leading law firms committed to helping clients cost-effectively will have a range of fixed-priced Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins, we have an experienced family law team, who can answer your questions and put you on the right track.




Jaenine Badenhorst
Associate Lawyer