Changes to the Care of Children Act standard form

From 7 June, lawyers will no longer need to use the current COCA (Care of Children Act) application forms available through the Ministry of Justice. This follows advocacy by the Family Law Section on behalf of practitioners.

But applications will need to comply with the Family Court Rules 2002 and, in respect of affidavits, the Evidence Act. The Family Law Committee wants to draw practitioners’ attention to the change as a matter of urgency although it has only limited information at this point. More is expected from the Ministry of Justice in due course.

The Family Law Section has confirmed the changes do not apply to the standard directions conference memorandum. They apply only to the standard COCA application form.

The Family Law Committee has considered the provisions that will be helpful for practitioners as a starting point when creating their application forms and accompanying affidavits:

General

  • In schedule 1 of the Family Court Rules there are general templates available: G6 for a without-notice application and G7 for an information sheet.
  • The front page of a document needs to state an address for service and, if it is the first document filed on behalf of a party, it must have a memorandum setting out the details in s 82 FCR (see FCR 27).
  • When preparing your application, review the relevant rules – for example, s 46R of the COCA for guardianship disputes; ss 47-57 of the COCA for parenting orders.
  • Review the without-notice requirements: FCR 24(2)(a)(i), FCR 416G-H.
  • A without-notice application must include a lawyer’s certificate: see 416HA.

Affidavits

  • With affidavits, s 7 of the Evidence Act says evidence that is not relevant is not admissible. Evidence is relevant if it has a tendency to prove or disprove anything of consequence to determining the proceeding.
  • Lawyers must not be party to filing any document in court alleging fraud, dishonesty, undue influence, duress or other reprehensible conduct unless they have taken appropriate steps to ensure reasonable grounds for making the allegations exist: see r 13.8 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

Parenting order applications

  • These must include a statement by, or on behalf of, the applicant about whether, and how, the order can and should provide for any other person or persons to have the role of providing contact with the child: s 47A of the COCA.
  • An application for a parenting order, or to vary a parenting order, must include a statement made by, or on behalf of. the applicant that the applicant has undertaken a parenting information program within the preceding two years. Evidence in support is needed unless the application is made without notice or in other limited circumstances: s 47B of the COCA.

In summary, when practitioners create new forms to use for COCA proceedings, it will be helpful to review the above provisions.

Prepared by Helen Radinovich on behalf of the ADLS Family Law Committee. The committee is interested in receiving feedback on how practitioners find these changes.

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