Family Proceedings Amendment Act 2008

  • repealed
  • Family Proceedings Amendment Act 2008: repealed, on 31 March 2014, by section 189(3) of the Family Proceedings Act 1980 (1980 No 94).

Reprint
as at 31 March 2014

Coat of Arms of New Zealand

Family Proceedings Amendment Act 2008

Public Act2008 No 79
Date of assent16 September 2008
Commencementsee section 2
  • Family Proceedings Amendment Act 2008: repealed, on 31 March 2014, by section 189(3) of the Family Proceedings Act 1980 (1980 No 94).


Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Ministry of Justice.


The Parliament of New Zealand enacts as follows:

1 Title
  • This Act is the Family Proceedings Amendment Act 2008.

2 Commencement
  • (1) This Act comes into force on a date to be appointed by the Governor-General by Order in Council.

    (2) One or more Orders in Council may be made appointing different dates for the commencement of different provisions and for different purposes.

    Section 2: Family Proceedings Amendment Act 2008 (except for sections 4, 6, 8-12, 14, 15(2), 16, 17(3), 18, 19, 20, and 27) brought into force, on 18 May 2009, by the Family Proceedings Amendment Act 2008 Commencement Order 2009 (SR 2009/83).

3 Principal Act amended
4 Interpretation
  • Section 2 is amended by inserting the following definition in its appropriate alphabetical order:

    mediator means—

    • (a) a person nominated by a Family Court from a list of mediators prepared by an officer of the Family Court appointed under section 8(2) of the Family Courts Act 1980:

    • (b) a mediator appointed pursuant to the Family Courts Act 1980.

5 New heading to Part 2 substituted
  • The heading to Part 2 is omitted and the following heading substituted: Dispute resolution.

6 Duty of legal advisers to promote reconciliation and conciliation
  • Section 8 is amended by omitting or the Care of Children Act 2004 in each place where it appears.

7 New heading inserted
  • The following heading is inserted above section 9: Counselling.

8 Counselling where proceedings commenced
  • (1) Section 10(2) is amended by—

    • (a) omitting either; and

    • (b) adding the following subparagraph:

      • (iii) the applicant and the respondent have attended mediation before a mediator with or without a request under section 12C having been made; or.

    (2) Section 10(4) is amended by omitting or on an application by a party to a marriage, civil union, or de facto relationship for an order under the Care of Children Act 2004 with respect to the role of providing day-to-day care for a child of the marriage, civil union, or de facto relationship.

9 New section 11 substituted
  • Section 11 is repealed and the following section substituted:

    11 Reference to counsellor
    • A counsellor to whom a matter is referred under section 9, 10, 12C(3), or 19 must—

      • (a) arrange to meet either or both of the spouses or civil union partners or de facto partners (the parties) at such times and places (including the home of either party) as the counsellor thinks fit for the purposes of counselling; or

      • (b) request either or both of the parties to attend before the counsellor at a specified time and place for the purposes of counselling.

10 New section 12 substituted
  • Section 12 is repealed and the following section substituted:

    12 Duties of counsellors
    • (1) A counsellor to whom a matter is referred under section 9, 10, 12C(3), or 19—

      • (a) must explore the possibility of reconciliation between the parties; and

      • (b) if reconciliation does not appear to be possible, must attempt to promote conciliation between the parties.

      (2) After carrying out his or her obligations under subsection (1), the counsellor must provide a report to the Registrar stating—

      • (a) whether the parties wish to resume or continue the marriage, civil union, or de facto relationship; and

      • (b) if the parties do not wish to resume or continue the marriage, civil union, or de facto relationship and there is a matter in issue between them, whether that issue has been resolved.

      (3) A report provided under subsection (2) may also state any of the following:

      • (a) details of the understandings reached between the parties:

      • (b) details of the matters remaining in issue between the parties:

      • (c) a recommendation as to the next step or steps to be taken by the parties.

      (4) The Registrar must give a copy of the counsellor’s report to each party or to each party’s barrister or solicitor.

      (5) A recommendation made by a counsellor under subsection (3)(c) is not binding on the parties or on the Court.

11 New sections 12A and 12B substituted
  • Sections 12A and 12B are repealed and the following sections substituted:

    12A Number of sessions of counselling
    • The number of sessions of counselling to be carried out pursuant to section 9, 10, 12C(3), or 19 must be determined in accordance with such regulations as may be made under this Act or, if no regulations apply, by the Registrar or the Court.

    12B Counselling fees and expenses
    • Fees in respect of counselling services carried out pursuant to section 9, 10, 12C(3), or 19, and reasonable expenses incurred,—

      • (a) may be determined in accordance with regulations made under this Act; and

      • (b) are payable out of public money appropriated by Parliament for the purpose.

12 New heading and sections 12C to 12J inserted
  • The following heading and sections are inserted after section 12B:

    Mediation

    12C Requests for mediation
    • (1) Either party to a marriage, civil union, or de facto relationship may request a Registrar of a Family Court to arrange mediation in respect of the marriage, civil union, or de facto relationship.

      (2) Where a request has been made to a Registrar under subsection (1), the Registrar may, on the completion of the prescribed form by the person making the request, arrange for the matter to be referred to a mediator.

      (3) Where a request has been made to a Registrar under subsection (1), the Registrar may, instead of arranging for the matter to be referred to a mediator, arrange for the matter to be referred to a counsellor, if the Registrar considers, having regard to all of the circumstances, that the referral of the matter to a counsellor is more appropriate.

    12D Mediation where proceedings commenced
    • (1) On the filing of an application for a separation order, a Registrar of a Family Court may, if he or she thinks it expedient to do so, arrange for the matter to be referred to a mediator.

      (2) On an application under section 67 for a maintenance order a Family Court Judge may, if he or she thinks it expedient to do so, and without limiting his or her power to make an interim maintenance order, direct a Registrar of a Family Court to arrange for the matter to be referred to a mediator, and on receipt of a direction under this subsection, the Registrar must refer the matter accordingly.

      (3) If, not less than 42 days after the date on which the Registrar has arranged for the matter to be referred to a mediator under subsection (1) or (2), either party to the marriage, civil union, or de facto relationship requests that the hearing should proceed, the hearing must be commenced or resumed unless the Court otherwise directs.

      (4) Nothing in subsection (3) prevents the commencement or resumption of the hearing before the expiration of the period of 42 days if the Court, upon application made to it, so directs.

    12E Reference to mediator
    • (1) A mediator to whom a matter is referred under section 12C, 12D, or 19 must—

      • (a) arrange to meet both of the spouses or civil union partners or de facto partners (the parties), at such times and places (including the home of either party) as the mediator thinks fit for the purposes of mediation; or

      • (b) request both of the parties to attend before the mediator at a specified time and place for the purposes of mediation.

      (2) Prior to the mediation, the mediator may meet with one of the parties, or both of the parties separately, if the mediator considers a meeting would enable him or her to do any or all of the following:

      • (a) assess whether mediation is appropriate:

      • (b) clarify the main issues between the parties:

      • (c) determine with the parties—

        • (i) who should attend the mediation:

        • (ii) how the mediation should proceed:

      • (d) gather any further information that may be relevant to the conduct of the mediation.

    12F Duties of mediators
    • (1) A mediator to whom a matter is referred under section 12C, 12D, or 19 must make every endeavour to—

      • (a) identify the matters in issue between the parties; and

      • (b) facilitate negotiations between the parties in respect of those matters; and

      • (c) assist the parties to reach agreement on the resolution of those matters.

      (2) After carrying out his or her obligations under subsection (1), the mediator must provide a report to the Registrar stating—

      • (a) whether the parties wish to resume or continue the marriage, civil union, or de facto relationship; and

      • (b) if the parties do not wish to resume or continue the marriage, civil union, or de facto relationship, and there is a matter in issue between them, whether that issue has been resolved.

      (3) A report provided under subsection (2) may also state any of the following:

      • (a) details of the resolution reached between the parties:

      • (b) details of the matters on which resolution has not been reached between the parties:

      • (c) a recommendation as to the next step or steps to be taken by the parties.

      (4) The Registrar must give a copy of the mediator’s report to each party or to each party’s barrister or solicitor.

      (5) A recommendation made by a mediator under subsection (3)(c) is not binding on the parties or on the Court.

    12G Mediation must be held in private
    • The only persons who may attend mediation before a mediator are as follows:

      • (a) the parties to the mediation; and

      • (b) a barrister or solicitor representing a party to the mediation, if the mediator considers that in all the circumstances attendance by a barrister or solicitor is appropriate; and

      • (c) a person whom the mediator agrees may attend as a support person for a party, if the party requests.

    12H Mediation may be adjourned
    • The mediator may from time to time adjourn the mediation.

    12I Duration of mediation
    • The duration of mediation to be carried out under section 12C, 12D, or 19 must be determined in accordance with such regulations as may be made under this Act or, if no regulations apply, by the Registrar or the Court.

    12J Mediation fees and expenses
    • Fees in respect of mediation carried out under section 12C, 12D, or 19, and reasonable expenses incurred,—

      • (a) may be determined in accordance with regulations made under this Act; and

      • (b) are payable out of public money appropriated by Parliament for the purpose.

13 New heading inserted
  • The following heading is inserted above section 13: Mediation conferences.

14 Mediation conference
  • (1) Section 13(1)(c) is repealed.

    (2) Section 13(2) is amended by repealing paragraph (b) and substituting the following paragraph:

    • (b) inform each of the parties to the application of the time and place of the mediation conference and request them to attend.

15 Procedure at mediation conference
  • (1) Section 14(1) is amended by omitting Chairman and substituting Chairperson.

    (2) Section 14(3) to (5) are repealed.

    (3) Section 14(6) is amended by omitting Chairman and substituting Chairperson in each place where it appears.

    (4) Section 14(7) is amended by omitting Chairman and substituting Chairperson.

16 New section 14A inserted
  • The following section is inserted after section 14:

    14A Attendance at mediation conference
    • (1) In addition to the parties, the following persons may attend a mediation conference:

      • (a) a barrister or solicitor representing a party, if the party so requests:

      • (b) a person who the Chairperson agrees may attend as a support person for a party, if the party so requests.

      (2) A barrister or solicitor attending a mediation conference at the request of a party may assist and advise that party.

      (3) The Chairperson must agree to a request under subsection (1)(b) unless the Chairperson considers there is a good reason why the named support person should not be permitted to attend.

      (4) Except to the extent provided in subsection (1), and unless the Chairperson otherwise directs, a mediation conference is held in private.

      (5) If, during a mediation conference, the Chairperson requests a support person to leave the mediation conference, the support person must do so.

17 Power of Chairman to make consent orders
  • (1) The heading to section 15 is amended by omitting Chairman and substituting Chairperson.

    (2) Section 15(1) is amended by omitting Chairman and substituting Chairperson.

    (3) Section 15(1)(b) is repealed.

18 Power to require attendance for counselling or mediation
  • (1) Section 17(1) is amended by inserting the following paragraph after paragraph (a):

    • (ab) a request under section 12E(1)(b) to attend before a mediator; or.

    (2) Section 17(1) is amended by—

    • (a) inserting , mediator, after counsellor in the second place where it appears; and

    • (b) inserting or the mediator, after counsellor in the third place where it appears; and

    • (c) inserting , after mediation conference in the second place where it appears.

19 New section 18 substituted
  • Section 18 is repealed and the following section substituted:

    18 Privilege
    • (1) No evidence shall be admissible in any court, or before any person acting judicially, of any information, statement, or admission disclosed or made—

      • (a) to a counsellor or mediator exercising his or her functions under this Part; or

      • (b) in the course of a mediation conference.

      (2) Nothing in subsection (1) applies to—

      • (a) a report provided by a counsellor under section 12(2); or

      • (b) a report provided by a mediator under section 12F(2); or

      • (c) a record of the matters in issue at the conference made by a Chairperson under section 14(7); or

      • (d) a consent order made under section 15, or to any proceedings for the review of such an order.

      (3) Except to the extent that it is necessary for a counsellor or mediator to do so in the proper discharge of his or her functions, every counsellor and every mediator commits an offence and is liable on summary conviction to a fine not exceeding $500 who discloses to any other person any information, statement, or admission received by or made to him or her in the exercise of his or her functions under this Part.

20 Duty of Courts as to reconciliation and conciliation
  • (1) Section 19(1) is amended by omitting and in all proceedings under the Care of Children Act 2004 between spouses, civil union partners, or de facto partners for any order about the role of providing day-to-day care for a child, or about contact with a child,.

    (2) Section 19(2)(b) is amended by inserting or mediator after counsellor.

21 Discharge or variation of registered or confirmed order
  • Section 142 is amended by repealing subsection (2) and substituting the following subsections:

    • (2) If it appears to the Court, on an application under subsection (1), that the order it proposes to make is one that, if made provisionally, may be confirmed under the law of the country in which the maintenance order was made, the New Zealand Court may, instead of making the proposed order, make a provisional order.

    • (2A) An order proposed to be made under subsection (1) must be a provisional order if—

      • (a) a reciprocal agreement is in force with the country in which the maintenance order was made (pursuant to an Order in Council made under section 215 of the Child Support Act 1991); and

      • (b) under that agreement only a provisional order may be made.

    • (2B) A provisional order has no effect unless and until it is confirmed by a competent Court in the country in which the maintenance order was originally made.

    • (2C) Where the Court makes a provisional order under subsection (2), section 147(5) to (9) apply, except that the Court must, instead of sending the statement referred to in section 147(6)(c), send a statement of the grounds on which the provisional order has been made.

22 Discharge, variation, etc, of child maintenance order
  • Section 142B is amended by adding the following subsection:

    • (6) This section is subject to section 142E.

23 Court may make provisional order discharging, etc, child maintenance order
  • (1) The heading to section 142E is amended by omitting Court may make provisional and substituting Provisional.

    (2) Section 142E is amended by inserting the following subsection after subsection (1):

    • (1A) An order proposed to be made under subsection (1) must be a provisional order if—

      • (a) a reciprocal agreement is in force with the country in which the maintenance order was made (pursuant to an Order in Council made under section 215 of the Child Support Act 1991); and

      • (b) under that agreement only a provisional order may be made.

24 Conduct of proceedings
  • (1) Section 159(2) is amended by inserting the following paragraphs after paragraph (c):

    • (ca) accredited news media reporters:

    • (cb) persons whom the Judge permits to be present as support persons for a party on a request by that party:.

    (2) Section 159 is amended by repealing subsections (3) to (5) and substituting the following subsections:

    • (3) The Judge must agree to a request under subsection (2)(cb) unless the Judge considers there is a good reason why the named support persons should not be permitted to be present.

    • (4) No support persons may help a party conduct his or her case.

    • (5) If, during a hearing, the Judge requests a person of any of the following kinds to leave the courtroom, the person must do so:

      • (a) a witness:

      • (b) an accredited news media reporter:

      • (c) a support person whom the Judge permitted to be present under subsection (2)(cb).

    • (6) Nothing in this section limits any other power of the Court—

      • (a) to hear proceedings in private; or

      • (b) to permit a McKenzie friend to be present; or

      • (c) to exclude any person from the Court.

25 New section 169 substituted
  • Section 169 is repealed and the following section substituted:

    169 Publication of reports of proceedings
    • Sections 11B to 11D of the Family Courts Act 1980 apply to the publication of a report of any proceedings under this Act (other than criminal proceedings under section 130)—

      • (a) in a Family Court:

      • (b) in any other court, in which case references in those sections to the Family Court or Court must be read as references to that other court.

26 Section 186 repealed
27 Regulations
  • Section 187 is amended by inserting the following paragraphs after paragraph (cc):

    • (cd) making provision for the determination of the amount of fees and expenses, including minimum and maximum amounts, payable in respect of mediation services carried out pursuant to section 12C, 12D, or 19, which fees and expenses may differ according to—

      • (i) the duration of the mediation (not exceeding the maximum duration of mediation that may be carried out determined under section 12I); and

      • (ii) the time spent by the mediator in meeting with the parties prior to the mediation; and

      • (iii) the complexity of the matter in issue between the parties:

    • (ce) making provision for the determination of the duration of mediation that may be carried out pursuant to section 12C, 12D, or 19:.


Reprints notes
1 General
  • This is a reprint of the Family Proceedings Amendment Act 2008 that incorporates all the amendments to that Act as at the date of the last amendment to it.

2 Legal status
  • Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.

3 Editorial and format changes
4 Amendments incorporated in this reprint