Enforcing Access - Information Kit www.menz.org.nz |
Enforcing Access Agreements Without Lawyers
Criminal Charges - Violation of Sec 20A Guardianship Act
Introduction:
The anonymous Auckland author of this kit has executed numerous warrants to enforce access in a situation of continued non-compliance and extreme animosity. Currently he sees his children every second weekend. He says:
"Whatever the future may hold I am content to move on, knowing that I did the best I could for my children and have earned for them the right to meaningful contact with their father. If you exercise your right to see your children then they will respect you for that. My children have learned that if they are not at access when they know they should be then the police may be out looking for them. Once they considered it sporting to assist their mother to evade the police – now they just like to keep the peace and enjoy a normal life."
Enforcing Access Agreements Without Lawyers
Always have access arrangements in writing. Only Court Orders are enforceable. If you have a Court Order and are having ongoing problems with access then you should consider not having legal representation and proceeding on your own behalf. The advantage of this is to minimize the ongoing costs while allowing you to keep a close eye on what usually goes on behind your back due to dealing with the court staff directly. It also makes things happen more quickly and you're not forever having to push your lawyer to move.
While you and counsel for child can speak to court-appointed psychologists and counselors directly, your lawyer can not. Don't leave your ex-partner to arrange anything the court has ordered because it will never happen. Speak to court registrars and acting deputy registrars yourself. If they say "you have to ask your lawyer about that" then advise your lawyer you no longer want him to receive and act on your behalf, but that you may call on him to represent you at future proceedings and you will brief him if necessary. Don't have your lawyer engaged in day to day administration of access in perpetual proceedings. You can reappoint him prior to any defended hearing.
If Access is suspended:
The longer access is suspended (for whatever reason) the worse off you are, as the custodial mother will make out she is parenting quite happily and the children are thriving without any contact to you. She will get concessions for this despite being in contempt. It is good if you can obtain evidence to maintain the children are missing you. If a woman suspends access before Christmas don't expect to get a hearing before March. This is a common tactic.
If access is not occurring and you have not received sufficient and acceptable reason then assume contact has been unilaterally suspended. If counsel for child is still appointed then try to get him or her to clarify the situation. If your fears are confirmed, politely ask if they would be prepared to apply to the court for a Warrant. When they decline do this immediately yourself. Non-compliance with Orders is a challenging situation for the court. When a father seeks enforcement this ramps up their perception of proceedings to the "serious" level.
Tactics in Court:
To optimize your position before the court you will require:
Always be respectful of Judges- they have immense powers. They are not accountable for their decisions, details of which are kept secret. You only get one bite of the judicial apple so do your best first time out. Appealing for men is generally futile, seen as disrespectful and will only count against you in the next round.
Avoid being on the defensive. Being the applicant gives you the right of reply to affidavit evidence in response and at hearing.
A Judge may have said: "proceedings are now concluded and no further application may be made by either party for 3 years except by leave of the court." However if the orders are not complied with then the application is not vexatious and you have the right to apply to the court.
Seeking Enforcement:
The system does not see a custodial parent's non-compliance with Court Orders as contempt. Indeed, even though you have already been to court to get the orders the burden will again be on you to prove that the next step towards enforcement is required at all. Psychologists may even be called to give evidence that enforcement is not in the children's best interests. You must be firm in your view from the outset that you insist all orders be complied with. You need to be in a position of strength and consistently show you expect the court to enforce its orders.
The road to enforcement will be long. The court will hesitate and procrastinate before contemplating enforcement because this moves control beyond their jurisdiction. You may be drawn into lengthy proceedings where the court will firstly appeal to your ex's "good will" to comply. They may then make delicate hints of enforcement and possibly wardship. Other options for idle threats are a reversal of the custody order, or wardship with a relative parenting the children for some time, or the children being sent to a health camp for some time. These are of course not likely to actually happen because can you imagine the bad publicity that could result.
On every court appearance get your lawyer to ask the Judge for a personal assurance from the respondent that the Orders will be complied with in future. Otherwise you will never have a chance of establishing a "contempt" as woman are not generally expected to comply with court orders. Likewise, a woman does not have to comply with consenting access orders from a mediation conference. In the author's case, the Judge said: "Do I have to release the warrants for you to comply?" Although his ex-wife said yes, she still did not allow access and even this was not considered as contempt.
Enforcement by the court will only be supported as a last resort and only if the system will loose face by not proceeding. The principle difficulty the court knows will slow you down is the financial constraints of ongoing proceedings. From a Family Court perspective, time will fix most difficult situations; this is to say in time you will probably give up. Statistically this may be well founded. Therefore they draw out proceedings. Don't burn yourself out. You must be patient and stand the test of time both emotionally and financially.
Non-custodial parents getting enforcement orders can be complicated by the following:
Don't appear vindictive and don't allow the court to make out your intentions are to maintain contact to an ex-partner. Your focus must be to secure meaningful contact with your children. Any communication to an "ex" that is not welcomed can be used against you as your persistence to "patch up" the relationship. The domestic violence legislation may also be used against you.
Before going back to court, try approaching the police with the Access Order and see if they will lend assistance without further court intervention. They may oblige at their discretion with a view to avoiding the possibility of a domestic dispute. This would also be useful as evidence.
If you have a court access order then you should be able to apply to enforce without the need for counsel.
Write out the Warrant on heavy embossed paper (eg: 100gsm Conqueror brilliant white). The Judge will sign the Warrant; there are no copies. In theory when it is no longer valid the warrant is supposed to be returned to the court file – don’t worry about this as most courts don't issue sufficient numbers to know.
When Warrants are issued you will then have to carry out any provisions prior to release from the court where they will have been signed by the judge for you to uplift eg. you may have to serve the warrant at short notice (because the court bailiffs can't do it) and this can be difficult if the respondent no longer has representation. Enclosed is an affidavit of service (here) "F". You can also do this yourself or get someone to serve the documents and write it out yourself simply referring to the names of the documents served without adding another copy on the court file. Then if the Judge needs to confirm aspects of service, he can ask you directly.
Warrants do not need a court seal. Cheeky deputy registrars will only use a seal to stop you forging consecutive Warrants because they think men are dishonest. If you ask for a seal so that the police can verify authenticity (as they don't have judges' signatures on record), then they won’t. Apparently a seal "elevates the status of the warrant".
The court has no jurisdiction to issue open-ended Warrants. Every two weeks (or whatever your access period is) you will need to apply for an additional Warrant. Always apply for "make up" whenever there are missed access sessions. This continuing exercise is a really good way to waste money on lawyers if you can't do it yourself. During this time be mindful of underhand tactics by court staff who may advise the female respondent over the phone that the Judge has released Warrants (supposedly issued ex-parte) so the respondent knows when to evade the police.
Dealing with Police
When executing the Warrant it is important for you to know what you are doing because the police aren’t really interested. Initially they may say: "Good on you for doing it right and going through the court", but then it's: "Sorry mate but you are stuffed anyway." A Warrant to exercise an Access Order has a low priority (ie no priority) status for the police. A domestic dispute on the other hand has very high priority.
There are no set procedures for how the police may execute a warrant to enforce an access order. Interpretation is at the discretion of those involved and differs greatly. Typically when you present a Warrant to the police they will ponder over the authenticity, then advise you that the Family Court's expectations of the effectiveness of this type of warrant differs from reality.
Because of the low priority the police will usually dispatch the young cops. Response is quicker using a cell phone and the *555 number for the "control centre". They will take the necessary details and give you an event number. Prior arrangements may also be made through a particular station. However avoid shift changeover times if you don't want to get fobbed off. Expect to wait 1-2 hours for a dispatch to assist with enforcement. On Saturday night and Sunday morning it can be very difficult to get a squad car but there is an increased chance of success.
The police are expected to produce the warrant on demand if requested in the course of execution. Advise them to maintain possession of the warrant at all times and not to give it to anyone. Always stay close to the police, as you need to witness events to report back to the court.
Always be respectful in your dealings with the police. This can be challenging at times as superior intelligence is not a common attribute. Their prime objective is always to negotiate. You may have to respectfully tell the constables to go back in and bring out the children, or else you will ring the senior sergeant and they will be sent back to do the job again. Most police lack the skills required to deal with an intelligent, vindictive custodial mother.
It is easy for a custodial parent to evade the police by simply not being at a known whereabouts when the Warrant is valid. You must then attempt to track the children down and when located you can then contact the police again to execute the Warrant. If the children aren’t located the police report a 'nil-find'.
Police may advise you they are "unable to take firmer action against repeated avoidance of a Warrant to enforce access". If notice of the Warrant is released ex parte (ie: not served on the woman), at the station level the police will just assume the mother went out shopping and didn’t know to be available. Because Warrants may be exercised out of a number of stations the police soon tire of wasting their time looking for children without success.
If you expect trouble then advise the Senior Sergeant and they may dispatch more experienced constables. You should meet them at the address to search for the children. Tell them you require the children be removed as soon as possible: ie no breakfast etc. Tell the constables you don’t want them engaging the mother in conversation that is inappropriate for the children to hear - for example the mother may tell the police that you are sexually abusing the children and that by assisting you they are condoning this.
Don’t get in a situation where your ex can make the situation into a domestic dispute because this has a high priority status and the police will turn on you. If a constable offers to give you a copy of the police report confirming execution details then get this immediately as they get cold feet very quickly.
Criminal Charges - Violation of Sec 20A Guardianship Act
If notice is served or Warrants are issued at hearing then you have a chance at a violation of section 20A of the Guardianship Act; being an obstruction of an access order. Don’t expect much help from the police. In the author's case they procrastinated until told in correspondence with court staff to not proceed further as it was a Family Court matter. The Office in Charge of Prosecutions then wrote to the judge requesting guidance and the reply was predictably "proceed at your discretion". You will have to reassure the police and be firm that you want the action to proceed. The Police regard an offence against section 20A of the Guardianship Act - obstruction of an access Order as a "worthless piece of paper".
For a first time charge with an offence against section 20A of the Guardianship Act a female respondent who pleads guilty via the duty solicitor (the women don't even need to appear) will probably be discharged without conviction. It took the release of sixteen warrants for the author to get to this stage. Don't expect charges for a first offence.
Enforcement is ultimately having police cars dispatched on a night search for your children that are expected to be in your care. When found they will be uplifted by force if necessary, probably in the presence of a distraught mother, placed into the police car and delivered to you.
This may be the only option available if you have limited access and a hostile custodial parent continues her contempt of the court Access Orders. To contemplate and negotiate this action is a veritable minefield. If this seems too dramatic and you don't have the stomach for it then you and your children loose.
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