Change urged to proposed Family Court Rules

Change urged to proposed Family Court Rules

11 June 2014

The New Zealand Law Society is recommending deletion of a clause in draft court Rules proposed by the Family Courts Reform section of the Ministry of Justice.

The ministry has prepared draft Family Courts Amendment Rules (No 5) 2014 and draft Domestic Violence Amendment Rules 2014. These will support amendments to the Domestic Violence Act 1995 which are due to come into force on 1 October 2014.

In comments to the ministry, the Law Society sees some problems with the wording of a clause in both sets of draft Rules which relates to the wording of a new certificate for lawyers to complete when acting for an applicant for a protection order.

The draft new certificate certifies that the lawyer has advised the applicant of their right to request provision of a safety programme to the applicant and to any other person protected by the order. This is already a statutory obligation for lawyers.

The Law Society says all lawyers are subject to professional standards and obligations. These already require a lawyer acting for an applicant for a protection order to advise and advocate for a client as specified.

"The proposed certificate is not objectionable but it does not enhance or expand upon the obligations on lawyers that already exist when acting for applicants," it says.

"Nor is it the best way for the court to be assured that an applicant has received and understood advice regarding the provision of safety programmes."

The Law Society says the best way to confirm that an applicant has been made aware of their entitlement is a statement to that effect in their affidavit rather than a lawyer's certificate.

It recommends deletion of the proposed clause and an appropriate amendment to the form setting out the affidavit requirements to include a statement that the applicant is aware that he or she is able to request the provision of a safety programme.