Case Study on Family Law: Parenting Disputes and Protection Orders

This case study provides a legal opinion on family court proceedings related to parenting disputes, protection orders, and domestic violence. It addresses concerns about paternity, challenging protection orders, maintaining contact with children, and supervision requests. The analysis covers the Guardianship Act 1968, Care of Children Act 2004, and Domestic Violence Act 1995, discussing parenting orders (interim and final), factors influencing court decisions (child's welfare, domestic violence), and the process for varying or discharging orders. It also examines the criteria for granting protection orders, the definition of domestic violence (including psychological abuse), and the respondent's rights and options. The study references relevant legal sections and case law, such as Bashir v Kacem [2010], to support its analysis. Desklib provides a platform for students to access this and other solved assignments.

Running head: FAMILY LAW
Family Law
Name of the Student
Name of the University
Author Note

1FAMILY LAW
To
Mr. Jamie
Respected Sir,
This letter of opinion will provide you with an overview of the family court proceedings that are
likely to take place concerning parenting disputes, protections orders and domestic violence
related issues. Firstly, before explaining the further court proceedings, I would like to summarize
the legal proceedings that have been initiated against you. The Judge has granted the protection
order and has issued a temporary protection order against you. Additionally, an interim parenting
order has also been made against yourself and you are only allowed to supervise the contract on
terms that is approved by the Court.
Now, as you narrated the facts, it is assumed that you intend to oppose the legal orders on the
following grounds:
i. you are not the biological father of the unborn baby and intend to conduct a DNA test
after the birth of the baby;
ii. you intend to defend the temporary protection order;
iii. You do not see any future with Alicia;
iv. You merely want to maintain contact with your children;
v. You want Mary to supervise your contact with Damian
Based on the legal circumstances mentioned above, it is important to understand the legal
concepts of the disputes and the legal proceedings surrounding, in order to defend the issues.

2FAMILY LAW
In regards to the issues relating to parenting disputes, the legal framework governing such
disputes include the Guardianship Act 1968 and Care of Children Act 2004 (COCA), [Care of
Children Amendment Act (No 2) 2013]. According to section [48] of the Care of Children Act
20041, parenting order is an order issued by Family Court that keeps a record of persons
maintaining contact with a child or children as well as persons who carried out the day-to-day
care of child/children.
The court may make two types of parenting orders, namely, a final parenting order under section
[48 and 49] of the COCA or an interim parenting order as per section [49] of the COCA. While a
parenting order remain in force until a child attains 16 years of age (s. 50), an interim parenting
order is a temporary order until the final order is made as stipulated under section [49] of the
Act2. Since no fixed date is provided in interim orders, it remains in force until child attains 16
years. Further, while making a final parenting order, which ends the dispute, is made based on
the welfare and best interest of the child as stated under sections [4 and 5] of the COCA.
However, the court shall also consider safety issues such as domestic violence related to drugs
and alcohol while making the parenting order as set out under section [5(a)] and [5A] of the
COCA3. The view and opinion of the child shall be paramount while making the final order as
set out under section [6] of the COCA irrespective of gender of the children [s.4(3)] of COCA4.
A parent’s contact with his or her children may be supervised under sections [58-60] of the
COCA5.
1 Care of Children Act 2004 at section [48].
2 Care of Children Act 2004 at section [49].
3 Care of Children Act 2004 at section [5(a)] and [5A].
4 Care of Children Act 2004 at section [4(3)].
5 Care of Children Act 2004 at section [58-60].

3FAMILY LAW
The decision in the landmark case Bashir v Kacem [2010]6 permits the court to obtain a report
from specialist as well in order to assess the welfare and best interest of the child while making
the parenting order. According to section [132] of COCA, any report of a social worker may
provide information necessary to assess such best interests7.
The welfare and best interests of the child is given priority while making the order is evident
from the provision set out under section [48(4)]8, where the conditions within the parenting order
ensure:
i. children are not exposed to domestic violence while in care of either parent;
ii. children are not be exposed to anyone drinking excessive alcohol or who is under
influence of illegal substances;
In my opinion, since you only wish to maintain contact with your children, then you make a new
parenting order or vary the terms of the existing order or discharge the existing parenting order
under section [56] of the COCA with the consent of both the parties under section [57] of the
Act9. However, since an interim parenting order has been made, it shall be in force until your
children attain 16 years of age. Therefore, until they attain the age it shall be the shared
responsibility of both your wife and yourself to carry out day-to-day care of your children and
provide for their daily needs. Nevertheless, since you wish Mary to look after Jessica, she will
have to apply for a parenting order under section [47] to become the eligible person, provided
she is granted leave to make such application.
6 Bashir v Kacem [2010] NZFLR 865
7 Care of Children Act 2004 at section [132]
8 Care of Children Act 2004 at section [48(4)]
9 Care of Children Act 2004 at section [56] and [57]

4FAMILY LAW
There is a scope under section [47(2)] of the COCA, wherein any other person other than the
parents of the child may apply for parenting order if either parent has expired or has been refused
by court to contact the children. Additionally, when such parent does not attempt to contact the
children despite being entitled to maintain contact with the children, the other member may
apply for parenting order. Here, you may establish the following grounds:
i. Alicia, though entitled to make contact with her children, does not attempt to do the
same; and
ii. Jessica herself, does not want to maintain touch with her mother;
The court considers the best interest and welfare of the children as paramount while making a
parenting order, the fact that Alicia is an alcoholic, will be a significant ground for courts to
disallow her from maintaining contact with her children. Further, Mary being a respect elder and
a social worker may provide information concerning drinking behavior and callous attitude of
Alicia towards her children under section [132] of the COCA. The fact that Jessica has been
staying at her place, shall make the report of Mary a stronger. This is because that her behavior
and alcoholic issue might pose a risk to the children, which is contrary to the best interest and
welfare of the children.
In regards to the temporary protection order, the Domestic Violence Act 1995 [DVA] governs the
issues relating to domestic violence in all its forms that is, sexual, physical and psychological
forms, ensuring protection and safety to individuals10. The three fundamental objective of the
statute is protective, punitive and rehabilitative. The ‘protective’ element is to create hindrances
against violent people by restricting some of their freedoms and imposing restrictions on them
ensuring protection to people who are subjected to risks.
10 Domestic Violence Act 1995

5FAMILY LAW
The ‘punitive’ element states that in case of breach of any protection order, the police may
prosecute against the accused through the District court as such contravention shall amount to a
criminal offence. The ‘rehabilitative’ element refers to the necessity of a respondent having a
protection order to attend a program to stop committing violence. In order to grant a protection
order, the following three elements must be established:
i. there is a domestic relationship under section [4] and section [7] of the DVA;
ii. the protection order is necessary under section [14] of the DVA;
iii. there is a domestic violence under section [3] and [14(1) (a)] and poses a risk of harm or
undue hardship under section [13] of the Act11;
For establishing domestic evidence, the aggrieved person must establish psychological, physical
and sexual abuse. Amongst these, psychological abuse is difficult to define, as it comprises
numerous behaviors and acts that may amount to psychological abuse12. As per section [3(4)] of
the DVA, psychological abuse may include the following:
i. a single act, and
ii. numerous acts that forms a behavioral pattern;
Further, psychological abuse of a child has been defined under section [3(3)] of the DVA as any
act that:
i. permits or causes a child to hear or see any psychological, sexual or physical abuse of a
person with whom the child shares a domestic relationship;
ii. subjects the child to real risk of hearing or seeing the occurrence of abuse;
11 Domestic Violence Act 1995 at section [3], [14(1)(a)] and [13].
12 Dye, Melanie Livet, and Keith E. Davis. "Stalking and psychological abuse: Common factors and relationship-
specific characteristics." Perspectives on Verbal and Psychological Abuse 18.2 (2015): 61.

6FAMILY LAW
The person against whom a protection order is issued may establish that he or she is the person
suffering the abuse and not the one who caused the abuse or placed the children at risk of seeing
the occurrence of such abuse.
In the affidavit, while presenting evidence of domestic violence, it must include:
i. a clear description of the form of domestic violence;
ii. date of occurrence of such incident/incidents;
iii. narrative of the incident/incidents;
iv. emotional/physical injury caused to the aggrieved child or person;
v. independent evidence such as police report, photograph or affidavit from a witness;
While granting the protection order under section [14(1)] of the DVA, the court must consider
the perspective of the applicant or child with respect to the seriousness and nature of the behavior
as well as the impact that such behavior have on the applicant, child or both. As per section [2]
of the DVA, a child is defined as any person below 17 years.
As per section, Part 2A and sections [51A -51T] of the DVA, protected person may avail the
option of attending a safety program. In case of non-compliance of the court order with respect
to the attending of the non-violence program, it shall amount to an offence under section [51 T]
of the Act resulting in penalty not exceeding $5000 and 6 months imprisonment. In case,
temporary protection order is made without notice, the direction of the court to attend a program
does not come into effect until 10 working days after service as per section [51E (2)(a)] of
DVA13.
13 Domestic Violence Act 1995 at section [51E (2) (a)]

7FAMILY LAW
Further, if the respondent intends to object such direction for attending the program within such
10 working days as per section [51 E (2)(b)] and the program shall remain suspended until
further decision of the court is made regarding the program. If a protection order is issued ‘on
notice’, it refers to a situation where the respondent is served with a copy of all documents, thus,
providing the respondent with an opportunity to respond to the notice or file a defense before the
judge makes any final decision.
Furthermore, if the application is served ‘without notice’ it refers to a situation where the judge
makes a decision without giving the respondent with any opportunity to respond or defense. The
documents including the decision of the judge shall be sent to the respondent. According to
section [77(1)] of the DVA, if after the temporary protection order is served and the respondent
does not undertake any steps, such temporary order is likely to become a final protection order
within three months after such order is issued.
Thus, I believe that as per the facts of your case, there is a scope under section [76] of the
DVA14, where you may file a Notice of Intention to Appear and a affidavit in support so that
you get an opportunity to defend yourself. however, such Notice of Intention to appear may be
filed between the day after the temporary protection is issued and before such order becomes a
final order. Subsequently, the matter will go to a defended hearing.
Since you disagree with the temporary order and the temporary order has been issued without
any notice, you have a right to defend yourself. At a defended hearing, the judge of a Family
Court shall further consider the three grounds to decide the matter.
14 Domestic Violence Act 1995 at section [76]

8FAMILY LAW
In Winslow-Burton v Poindexter [2016]15, it was observed that after the hearing, judge may
discharge the temporary protection order under section [45 (1) (c)] of the DVA or make a final
protection order under section [80] of the DVA. However, either the applicant or respondent may
apply later to discharge the order that will restart the case under section [46-48] of the Act as was
observed in Surrey v Surrey [2010]16.
In my opinion, You may defend the temporary protection order under section [76] of the DVA,
by filing the Notice of Intention to appear within a date from the date on which the protection
order was issued and before it becomes a final protection order. In order to defend against the
domestic violence allegations, you must establish that the applicant that is Alicia has actually
committed domestic violence in the form of psychological abuse. It may be established that
i. there is a domestic relationship under section [4] and section [7] of the DVA between
Alicia and the children, as she is the mother;
ii. domestic violence is established under section [3] and [14(1) (a)] posing a risk of harm
or undue hardship under section [13] of the Act as is evident from several incidents when
Alicia’s drinking habits have posed risk of harm to the children as she had caused injury
to herself several times, resulting in psychological form of domestic violence.
iii. the protection order is necessary under section [14] of the DVA to safeguard the children
against such regular psychological abuse.
Further, the affidavit must include narration of all the following incidents including the
emotional injury that it has caused to Jessica, thus establishing the impact of such incidents on
the life of the children.
15 Winslow-Burton v Poindexter [2016] NZFC 1953
16 Surrey v Surrey [2010] 2 NZLR 581; [2010] NZFLR 1

9FAMILY LAW
i. She hides money to buy alcohol which is otherwise kept for purchasing food;
ii. She remains so drunk that she fell down off the staircase and broke her arm and had a
bleeding nose;
iii. Despite requesting her to seek help for quitting her drinking habits, but she refuses to
seek such help and keep drinking;
iv. She remains drunk to the extent that she often pisses on the floor and is least concerned
about her children;
v. She has attempted to attack;
vi. Jessica often have to drag her drunk mother to take her to bedroom;
After the matter goes for hearing, the judge either may discharge the order or may make a final
order depending on the facts as was observed in Winslow case. Further, later, you may apply for
restarting the case all over again and obtain protection order against Alicia.
Lastly, in regards to the issue related to determination of the paternity of the unborn baby of
Alicia, the Status of Children Act 1969 and Family Proceedings Act 1980. A per section [5] of
the Status of Children Act, any child that is born to a woman during her marriage or within 10
months of dissolution of marriage by death, the child shall be presumed to be child of his mother
and former husband or her husband, as the case may be.
The prima facie evidence related to paternity has been stipulated under section [8] of the Status
of Children Act 196917 according to which three ways may be applied to determine paternity:
i. a certified copy of the birth certificate of the child that shows the name of the father;
17 Status of Children Act 1969 at section [8]

10FAMILY LAW
ii. an order made by a court or any authority in a nation that is outside New Zealand, thus,
declaring a person to be the father of the child;
iii. an instrument or legal deed that is usually signed by the mother and a man who addresses
himself as father of the child before the solicitor;
In case the above methods do not apply, two options may be availed of to prove paternity legally
that is, apply to court for a Declaration of Paternity and for Paternity Order. Under section [10]
of the Status of Children Act 1969, a person may become eligible to apply for a declaration of
paternity on the following grounds:
i. a woman who alleges that a named person is the father of a child;
ii. a person who wishes to determine existence of relationship of father and child between
two named persons who has a proper interest in the result;
iii. a person who usually alleges an existence of child and father relationship between
another named person or the person;
A parentage testing or DNA testing is considered as best evidence to be able to provide to the
court in case of dispute regarding the paternity parties only after voluntary consent given by both
parenting parties. Under section [57] of the Family Proceedings Act 1980, either parent may
refuse to give consent to undergo parentage testing or DNA testing18. Nevertheless, under section
[10(1)] of the Care of Children Act 2004, and section [167] of the Family Proceedings Act
1980, it is stipulated that in absence of conclusive DNA testing, the standard of proof be on the
balance of probabilities19.
18 Family Proceedings Act 1980 at section [57]
19 Family Proceedings Act 1980 at section [167]

11FAMILY LAW
In the affidavit supporting the application to the Court, the parties must provide necessary
information regarding the relationship of the parties which might include:
i. nature of sexual relationship between them;
ii. approximate date of conception;
iii. whether the mother was engaged in physical relationship with some other person during
conception;
However, the Court may only recommend a mother to make a child undergo DNA test as ruled
in Cairns v James [1992] but cannot order her and shall refer to United Nation Convention on
the Rights of the Child [UNCROC] to make any such decision20.
Now, on the facts here, in my opinion, in order to determine paternity relationship with the
unborn baby of Alicia, you may either wait for obtaining the birth certificate copy of the baby, as
it would have name of the father written on it. Secondly, a court that is situated outside New
Zealand may declare a person as a father of a child. Lastly, a legal deed shall reveal the name of
the father.
You may make an application before the court for a Declaration of Paternity to determine
whether the child is related to yourself. Since you want to conduct a DNA test on the child,
consent must be required of the Alicia. This is because as per section [57] of the Family
Proceedings Act 1980, a mother may refuse to give consent to let her child undergo DNA
testing.
20 Cairns v James [1992] NZFLR 535