Family Courts Rules 2002

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Reprint
as at 3 August 2009

Family Courts Rules 2002

(SR 2002/261)


Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this eprint.

A general outline of these changes is set out in the notes at the end of this eprint, together with other explanatory material about this eprint.

These rules are administered in the Ministry of Justice and the Department for Courts.


Pursuant to section 16A of the Family Courts Act 1980, Her Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following rules.

Contents

Commencement

Purpose

Overview

Application

Interpretation

Registrars' duties and powers

General matters

Overview of Part

Commencement of proceedings

What to file

Where applications to be made

How to file documents in Court

Before any hearing

Steps at hearing

Steps at end of hearing

Rehearings

Rights of appeal to High Court

Overview of Part

Forms

Shape, etc, of documents to be filed

How to file documents in Court

Amendment of certain documents filed

Lawyers

Representatives and managers

Notices

Service: documents to be served

Service: how documents to be served

Service: on days that are not working days

Service: personal service

Service: lawyer may accept service on behalf of person

Service: at address for service

Service: if address for service is lawyer's office

Service: in manner specified in agreement

Service: on representatives, managers, and incapacitated persons

Service: substituted service

Service: proof of service

Service: on party out of New Zealand

Translations into Maori

Changing times by which rules or orders require things to be done

Striking out and adding parties

Change of parties by death, etc

Consolidation of proceedings

Getting more information and admissions

Discovery and inspection of documents

Procedure when evidence given by affidavit

Other evidentiary matters

Conferences

Interlocutory injunctions

Injunctions and receivers

Transfer of proceedings and transfer for hearing

Adjournment of hearing

Striking out pleading

Stay or dismissal

Judgments and orders

Costs

Investment of funds in Court, property, and payment into Court

Rehearings

Contempt

Overview of Part

Interpretation

Consent memoranda instead of interlocutory applications

Interlocutory applications on notice or without notice

Who interlocutory applications to be heard and determined by

Form of interlocutory applications

Evidence on interlocutory applications

Where to file interlocutory applications

Procedure for interlocutory applications without notice

Procedure for interlocutory applications on notice

Hearing of interlocutory applications

Registrar's order on interlocutory application may be varied or rescinded

Enforcement of orders made on interlocutory applications

Costs of interlocutory applications

Adoption Act 1955

Child Support Act 1991

Children, Young Persons, and Their Families Act 1989

Domestic Violence Act 1995

Family Proceedings Act 1980 and Care of Children Act 2004

Family Protection Act 1955 and Law Reform (Testamentary Promises) Act 1949

Property (Relationships) Act 1976

Protection of Personal and Property Rights Act 1988

Overview of Part

Court offices

Sittings on days that are not working days

Fees

Records

Proceedings, etc, that originated under previous rules


Rules

1 Title
  • These rules are the Family Courts Rules 2002.

Part 1
Preliminary provisions

Commencement

2 Commencement
  • These rules come into force on 21 October 2002.

Purpose

3 Purpose of these rules
  • (1) The purpose of these rules is to make it possible for proceedings in Family Courts to be dealt with—

    • (a) as fairly, inexpensively, simply, and speedily as is consistent with justice; and

    • (b) in such a way as to avoid unnecessary formality; and

    • (c) in harmony with the purpose and spirit of the family law Acts under which the proceedings arise.

    (2) These rules must be read in the light of their purpose.

    Compare: SR 1992/109 r 4

Overview

4 Overview of these rules
  • (1) These rules are divided into 6 Parts and 9 Schedules.

    (2) Part 1 contains preliminary provisions (for example, provisions about the purpose, general scheme and effect, and application of these rules).

    (3) Part 2 sets out the general procedure in Family Courts.

    (4) Part 3 contains rules about particular aspects of proceedings in Family Courts (for example, service of documents).

    (5) Part 4 sets out procedures for dealing with interlocutory matters (that is, matters that arise in the course of proceedings).

    (6) Part 5 contains special rules for proceedings under certain family law Acts.

    (7) Part 6 contains rules about Registry matters, fees, and transitional matters (for example, Family Court offices, Family Court office hours, fees payable in respect of proceedings in a Family Court, records, searches, the transfer of records or information, and proceedings, etc, that originated under previous rules).

    (8) Schedules 1 to 9 set out the forms prescribed by these rules.

    (9) Subclauses (1) to (8) are only a guide to the general scheme and effect of these rules.

Application

5 Application of these rules
  • (1) All proceedings in a Family Court must be brought and dealt with in accordance with these rules, except to the extent that the family law Act under which they are brought provides for them to be brought or dealt with under some enactment other than these rules.

    (2) Parts 1 to 4 and 6 (the general rules) apply to all proceedings in a Family Court.

    (3) However, the application of the general rules to the proceedings is modified by any rules in Part 5 that apply to the proceedings (Part 5 contains rules that modify the general rules).

    (4) Rules in Part 5 that are referred to in a paragraph of rule 6 apply only to proceedings brought under the 1 or more family law Acts referred to in that paragraph of rule 6.

    (5) In this rule, proceedings in a Family Court includes all proceedings in a District Court under—

    • (b) section 151 of the Children, Young Persons, and Their Families Act 1989.

    Compare: SR 1992/109 r 2

6 Special rules for proceedings under certain family law Acts
7 No special rules for proceedings under certain family law Acts

Interpretation

8 Interpretation
  • In these rules, unless the context otherwise requires,—

    address for service, in relation to any party, means the address of a place in New Zealand at which any document may be left for, or sent to, that party in accordance with these rules

    application means an application (other than an interlocutory application) under a family law Act

    Court

    • (a) means a Family Court; and includes a Family Court Judge; and

    • (b) in any case where a District Court is empowered by section 15 of the Family Courts Act 1980 or section 151 of the Children, Young Persons, and Their Families Act 1989 to hear and determine any proceedings, includes a District Court and a District Court Judge; and

    • (c) in relation to proceedings,—

      • (i) means the Court in which they were commenced; but

      • (ii) if they have been transferred, or the hearing of them has been transferred, to another Family Court, means that other Court

    family law Act means an Act that provides for proceedings to be heard and determined by a Court

    incapacitated person means a person who, by reason of physical, intellectual, or mental impairment, whether temporary or permanent, is—

    • (a) not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or

    • (b) unable to give sufficient instructions to issue, defend, or compromise proceedings

    interlocutory application

    • (a) means an application in proceedings or intended proceedings for an order or a direction relating to a matter of procedure or for some relief ancillary to the orders or declarations sought in the proceedings or intended proceedings; and

    • (b) includes—

      • (i) an application for a rehearing; and

      • (ii) an application to review an order made, or a direction given, on an interlocutory application

    Judge

    • (a) means a Family Court Judge; and

    • (b) in any case where a District Court is empowered by section 15 of the Family Courts Act 1980 or section 151 of the Children, Young Persons, and Their Families Act 1989 to hear and determine any proceedings, includes a District Court Judge; and

    • (c) in relation to any proceedings, means the Judge who is presiding in the proceedings

    judgment has the meaning given to it in rule 196

    jurat has the meaning given to it in rule 158(3)

    lawyer means a barrister or solicitor, as those terms are defined in section 2 of the Law Practitioners Act 1982

    litigation guardian

    • (a) means—

      • (i) a person who is appointed under rule 90 to conduct a proceeding; or

      • (ii) a person who is authorised by or under any enactment to conduct proceedings in the name of, or on behalf of, an incapacitated person or a minor (but only in a proceeding to which the authority extends); and

    • (b) has the same meaning as the expression guardian ad litem

    manager means a manager of the kind specified in rule 91(1)

    Minister means the Minister of the Crown who, under the authority of a warrant or with the authority of the Prime Minister, is responsible for the administration of the Family Courts Act 1980

    on notice, in relation to an application, means on notice—

    • (a) to certain persons who will be parties to, or interested in, or likely to be affected by, the proceedings; and

    • (b) given by certain documents relating to the application (for example, a copy of some of the documents required to be filed to make the application) being served on (that is, in general terms, delivered to) those persons

    reasons for judgment has the meaning given to it in rule 196

    Registrar, in relation to a Court,—

    • (a) means the Registrar of the Court (who may also be the Registrar of the District Court of which the Court is a division under section 4 of the Family Courts Act 1980); and

    • (b) includes a Deputy Registrar of the Court (who may also be a Deputy Registrar of that District Court)

    Registrar's list means a list—

    • (a) on which a Registrar, under rule 32(1)(b)(ii) or rule 229(1)(b)(ii), enters applications that are not yet ready to set down for a hearing, so that they may be regularly monitored, and managed and progressed towards either resolution without a hearing or readiness for setting down for a hearing; and

    • (b) on which the Court or a Registrar enters applications the hearings of which are postponed or adjourned (for example, under rule 192 or rule 234), so that they may be regularly monitored, and managed and progressed towards either resolution without a hearing or readiness for hearing

    Registrar's list of section 37 applications means a list on which a Registrar, under rule 355, enters applications made under section 37 of the Family Proceedings Act 1980 (that is, applications for an order dissolving a marriage or civil union)

    Registrar's list of section 37 applications: this definition was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

    representative means—

    • (a) a person appointed as a litigation guardian to a minor under rule 90(1); or

    • (b) a person treated as appointed as a next friend to a minor under rule 90(4); or

    • (c) a person appointed under rule 90(2) as a litigation guardian to a person to whom section 11 of the Domestic Violence Act 1995 applies (that is, a person lacking capacity); or

    • (ca) a person appointed as a litigation guardian under rule 90(3A); or

    • (d) a person appointed under section 12 of the Domestic Violence Act 1995 as a representative to a person who is unable to make an application personally by reason of physical incapacity or fear of harm or other sufficient cause; or

    • (da) a person appointed as the representative of another person under section 13 of the Harassment Act 1997; or

    • (e) a person appointed as a guardian ad litem to a person under section 10(1)(i) of the Protection of Personal and Property Rights Act 1988 ; or

    • (f) a person appointed as an attorney to another person under an enduring power of attorney for the purpose of Part 9 of the Protection of Personal and Property Rights Act 1988 (but only if that enduring power of attorney authorises the attorney to bring or defend proceedings on behalf of the person, and only in a proceeding to which that authority extends)

    Social Worker has the same meaning as in section 2(1) of the Children, Young Persons, and Their Families Act 1989

    without notice, in relation to an application under a family law Act or the District Courts Rules 1992, includes an application that the Act provides, or that those rules provide, may be made ex parte

    working day, in relation to a Court, means a day on which the Court office is not closed under rule 17 or rule 19 of the District Courts Rules 1992 (and rule 15 of those rules applies accordingly).

    Compare: SR 1992/109 r 3

    Rule 8 incapacitated person: inserted, on 7 August 2008, by rule 4(1) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 8 litigation guardian: inserted, on 7 August 2008, by rule 4(1) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 8 representative paragraph (a): amended, on 7 August 2008, by rule 4(2)(a) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 8 representative paragraph (c): amended, on 7 August 2008, by rule 4(2)(a) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 8 representative paragraph (ca): inserted, on 7 August 2008, by rule 4(2)(b) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 8 representative paragraph (da): inserted, on 7 August 2008, by rule 4(2)(c) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 8 representative paragraph (e): amended, on 7 August 2008, by rule 4(2)(d) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 8 representative paragraph (e): amended, on 7 August 2008, by rule 4(2)(e) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 8 representative paragraph (f): added, on 7 August 2008, by rule 4(2)(e) of the Family Courts Amendment Rules 2008 (SR 2008/207).

9 Words and expressions defined in Acts
  • Unless the context otherwise requires, a word or expression used in a rule or form in these rules and defined in an Act must be given the meaning the Act gives it if—

    • (a) the Act deals with the subject matter of the rule or form; and

    • (b) the word or expression is not defined in these rules.

    Compare: SR 1981/261 r 3(2)

10 References to prescribed forms
  • (1) In these rules, a reference to a numbered form is a reference to that form as set out in Schedules 1 to 9.

    (2) For requirements to use forms, see rule 62(1) and the special rules in Part 5 of the kind referred to in rule 62(2).

Registrars' duties and powers

11 Requirements imposed on Registrars by rules
  • A requirement imposed on a Registrar by these rules to do a thing is a requirement to take all reasonably practicable steps to ensure that the thing is done.

12 Powers of Registrars under rules
  • (1) A Registrar has all the powers of a Judge to do any of the following if, and to the extent that, these rules authorise the Registrar to do any of the following:

    • (a) hear and determine any proceedings:

    • (b) make any direction or order.

    (2) Nothing in this rule—

    • (a) authorises a Registrar to commit a person to a prison or to enforce an order by committal:

    • (b) limits any right of review by a Judge of a decision of a Registrar.

    (3) An order made by a Registrar under these rules has the same effect, and is enforceable in the same manner, as if it were an order of a Judge.

    (4) An order made by a Judge may be signed by a Registrar in his or her own name and description.

    Subclause (2)(a) was amended, as from 1 July 2005, by rule 4 Family Courts Amendment Rules 2005 (SR 2005/101) by substituting the word prison for the words penal institution.

General matters

13 Practices must be consistent
  • (1) A practice that is not consistent with these rules or a family law Act must not be followed in any Court.

    (2) Subclause (1) overrides rules 14 to 16.

    Compare: SR 1981/261 r 5(1)

14 Directions in case of doubt
  • (1) A person in doubt about any matter of procedure under these rules may make an interlocutory application without notice to the Judge for directions, and the Judge may make a decision and give directions on that matter.

    (2) If there is a doubt about the application of a rule to any proceedings, the Judge may make a decision and give directions—

    • (a) on an interlocutory application without notice for the purpose by a person; or

    • (b) on the Judge's own initiative.

    (3) A step taken in accordance with directions under this rule is in accordance with these rules.

    (4) This rule is subject to rule 13(1).

    Compare: SR 1992/109 r 8

15 Matters not expressly provided for in rules
  • (1) The Judge must deal with any matter not provided for by any enactment (including any of these rules)—

    • (a) under provisions of these rules dealing with similar matters if that can be done; or

    • (b) in a way decided by the Judge, in the light of the purpose of these rules, if the Judge considers the matter cannot be dealt with under provisions of these rules dealing with similar matters.

    (2) This rule is subject to rule 13(1).

    Compare: SR 1992/109 r 9

16 Judges may give directions to regulate Court's business
  • (1) The Judge presiding over a Court may, at any time, give any directions he or she thinks proper for regulating the Court's business.

    (2) This rule is subject to rule 13(1).

    Compare: SR 1981/261 r 5(6)

17 Failure to comply with rules
  • (1) If these rules have not been complied with in beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, that failure to comply—

    • (a) must be treated as an irregularity; and

    • (b) does not nullify—

      • (i) the proceedings; or

      • (ii) any step taken in the proceedings; or

      • (iii) any document, judgment, or order in the proceedings.

    (2) If these rules have not been fully complied with at some stage of any proceedings,—

    • (a) the Judge may set the proceedings aside entirely or take any or all of the following steps:

      • (i) set the proceedings aside in part:

      • (ii) set aside, wholly or in part, any step in them:

      • (iii) set aside, wholly or in part, any document, judgment, or order in them:

      • (iv) allow the proceedings to be amended; and

    • (b) whether or not he or she acts under paragraph (a), the Judge may make any other order (for example, as to costs, or adjourning the proceedings) he or she thinks appropriate.

    (3) The Judge must not set the proceedings aside entirely just because they were not commenced by the kind of application required by these rules.

    (4) The Judge must not act under subclause (2)(a) on an interlocutory application made by a party unless—

    • (a) the application has been made within a reasonable time of the non-compliance concerned; and

    • (b) the party has not taken any fresh step after becoming aware of the non-compliance.

    (5) Subclause (4) does not prevent the Judge from making an order on his or her own initiative (whether or not a party has made an interlocutory application for the purpose).

    Compare: SR 1992/109 r 5

    Rule 17(1): substituted, on 7 August 2008, by rule 5 of the Family Courts Amendment Rules 2008 (SR 2008/207).

Part 2
General procedure in Family Courts

Overview of Part

18 Overview of this Part
  • (1) This Part sets out the general procedure in Family Courts.

    (2) It should be read with all other Parts of these rules.

    (3) The application of this Part to proceedings is modified by any rules in Part 5 that apply to the proceedings (Part 5 contains rules that modify this Part).

    (4) Among other things, this Part deals with the following matters:

    • (a) commencement of proceedings:

    • (b) what to file:

    • (c) where applications are to be made:

    • (d) how to file documents in Court:

    • (e) procedures before, at, and at the end of, any hearing:

    • (f) rehearings and appeals.

    (5) This rule is only a guide to the general scheme and effect of this Part.

Commencement of proceedings

19 How proceedings are commenced
  • For the purposes of these rules, proceedings are commenced when a person makes an application to a Court for a particular order or declaration under a family law Act.

What to file

20 Documents to be filed to make application
  • (1) An application is made by filing the following documents:

    • (a) the application form (set out in Schedules 2 to 9) for the particular order or declaration sought or, if there is no application form for that order or declaration, the general application form (set out in Schedule 1), which form must, if practicable, list the names and addresses of the persons on whom the application is required or intended to be served (see rule 36):

    • (b) an information sheet (which contains particulars about the parties) on yellow paper and in form G 7 (set out in Schedule 1) or (as the case requires) in form CYPF 4 (in Schedule 4) or in form PPPR 14 (in Schedule 9):

    • (c) any affidavit required or permitted by special rules in Part 5 to be filed with the documents to be filed to make the application (see rule 21):

    • (d) any other documents required or permitted by a family law Act or these rules to be filed with the documents to be filed to make the application (for examples, see rule 22):

    • (e) if the applicant is acting in a representative capacity, a statement setting out the capacity in which the applicant is acting, as required by rule 94:

    • (f) if an order or agreement is to be used in support of the application, a copy of that order or agreement (unless the Registrar directs otherwise).

    (2) If the application is on notice, then, together with the documents referred to in subclause (1), there must also be filed the same number of copies of the documents specified in rule 32(3) (except paragraph (c)) as there are persons on whom documents relating to the application are required or intended to be served.

21 Special rules relating to affidavits
  • For the purposes of rule 20(1)(c),—

    • (a) applicants for an adoption order must file with the documents to be filed to make their application, or file before any hearing of their application, an affidavit that complies with rule 244:

    • (b) applicants under the Child Support Act 1991 who make certain applications without notice, or who make certain applications on notice, must file with the other documents to be filed to make their application an affidavit in support (see rules 257 and 258):

    • (c) applicants for an urgent maintenance order under section 116 of the Child Support Act 1991 must file with the other documents to be filed to make their application an affidavit of financial means and their sources (see rule 260):

    • (d) applicants (and other parties) under the Child Support Act 1991 must, at least 10 working days before the hearing of the application, file an affidavit of financial means and their sources (see rule 266(1)):

    • (e) applicants for a protection order or for a property order (as defined in rule 304) under the Domestic Violence Act 1995 must file with the other documents to be filed to make their application an affidavit of the kind referred to in rule 309(1)(a):

    • (g) applicants for an order dissolving a marriage or civil union, under section 39 of the Family Proceedings Act 1980, may file with the other documents to be filed to make their application an accompanying affidavit (see rule 337):

    Paragraph (f) was amended, as from 1 July 2005, by rule 5 Family Courts Amendment Rules 2005 (SR 2005/101) by substituting the expression Care of Children Act 2004 for the expression Guardianship Act 1968.

    Paragraph (g) was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

22 Special rules relating to other documents
23 Applications generally to be made on notice
  • An application must be made on notice unless rule 24(1) or (2) applies.

24 Applications that may be made without notice
  • (1) An application need not be made on notice if the family law Act under which it is made provides, or any other of these rules provide, that the application, or an application of that kind, may be made without notice.

    (2) An application need not be made on notice if subclause (1) does not apply and the application, or an application of that kind, is not expressly required to be made on notice by the family law Act under which it is made or by any other of these rules, and the Court is satisfied that—

    • (b) the application affects the applicant only, or is in respect of a routine matter, or is about a matter that does not affect the interests of any other person; or

    • (c) every person in respect of whom the order is sought has either died or cannot be found.

    Subclause (2)(a)(i) was amended, as from 1 July 2005, by rule 6 Family Courts Amendment Rules 2005 (SR 2005/101) by substituting the expression Care of Children Act 2004 for the expression Guardianship Act 1968.

25 Two or more applications may be made together
  • (1) Two or more applications may be made together if the applications relate to proceedings under—

    • (a) the same family law Act; or

    (2) However, applications made together under the Children, Young Persons, and Their Families Act 1989 must not relate to more than 1 child or young person unless the same persons or organisations are to be parties to the proceedings in respect of those children or young persons.

    (3) Applications made together may be made in a single combined application form, and—

    • (a) 1 signature by the applicant on the form is sufficient:

    • (b) 1 information sheet is sufficient for all the applications:

    • (c) 1 front page referring to all the applications is sufficient:

    • (d) each order or declaration sought must be clearly identified in the form by an appropriate heading:

    • (e) explanatory notes from separate application forms may be combined and amended in the single combined application form if that is necessary to avoid duplication.

    (4) Subclause (3) overrides rule 20(1).

    Subclause (1)(b) was amended, as from 1 July 2005, by rule 7 Family Courts Amendment Rules 2005 (SR 2005/101) by substituting the expression Care of Children Act 2004 for the expression Guardianship Act 1968.

26 Documents relating to earlier proceedings
  • (1) If some or all of the parties to an application under a family law Act (the later application) were parties to an application made earlier to a different Court under that Act or under a former Act that corresponds to that Act (the earlier application), the later application must show—

    • (a) the location of the Court in which the earlier application or applications were made (if known to the applicant); and

    • (b) the file number of the earlier application or, if the applicant does not know the file number, any information that may help the Registrar to find it out.

    (2) If the earlier application and the later application were made under the Children, Young Persons, and Their Families Act 1989 or a former Act that corresponds to that Act, subclause (1) applies only if those applications are made in respect of the same child or young person.

    (3) If the later application is made under the Domestic Violence Act 1995, the reference in subclause (1) to the earlier application must be read as if it includes references to applications for an order under the Family Proceedings Act 1980 or under the Guardianship Act 1968 or under the Care of Children Act 2004.

    (4) Nothing in this rule limits rule 433 (transfer of documents relating to earlier application).

    Compare: 1996/148 r 25

    Subclause (3) was amended, as from 1 July 2005, by rule 8 Family Courts Amendment Rules 2005 (SR 2005/101) by adding the words or under the Care of Children Act 2004 after the expression Guardianship Act 1968.

27 Documents or forms for filing to comply with requirements
  • Every document or form to be filed must comply with applicable requirements stated or referred to in rules 63 to 74 (shape, etc, of documents to be filed), for example,—

    • (a) if the document is not a document referred to in rule 72(4), it must have a front page in form G 1 (in Schedule 1) stating an address for service; and

    • (b) if the document is the first document filed by, or on behalf of, a party, it must have on that front page the memorandum required by rule 82 (memorandum to be on front page with first document filed).

Where applications to be made

28 Applications to be filed in proper Court
  • (1) Unless an Act or another of these rules requires otherwise, every application must be filed—

    • (a) in the Court nearest to where the applicant (or any 1 of the applicants) resides; or

    • (b) in the Court nearest to where the person who may oppose, or be interested in, or be likely to be affected by, the application (or, if there are 2 or more persons of that kind, any 1 of those persons) resides; or

    • (c) in the Court that is specified in a written consent that is signed by each person who may oppose, or be interested in, or be likely to be affected by, the application.

    (2) Subclause (1) does not apply to the following appeals and applications (which must each be filed or made in the Court nearest the Registrar-General's office):

    • (b) applications to the Court under section 85 of that Act.

    (3) Part 5 contains special rules about the proper Court for the following applications:

    • (d) applications under, and certain applications filed with or in relation to applications under, Part IV of the Family Proceedings Act 1980 (see rule 340); and

    Rule 28(2)(a): amended, on 24 January 2009, by section 49(2) of the Births, Deaths, Marriages, and Relationships Registration Amendment Act 2008 (2008 No 48).

How to file documents in Court

29 How to file documents in Court
  • An application must be filed in accordance with rules 75 and 76.

30 Procedure if applications presented or accepted for filing in wrong Court
  • (1) A Registrar who considers that the documents to be filed to make an application have been presented for filing in the wrong Court may decline to accept them for filing.

    (2) An applicant who disagrees with the Registrar about whether the Court is the proper Court in which to make the application may, by an interlocutory application for the purpose, apply for a direction from a Judge that the applicant is entitled to make the application in that Court.

    (3) If an application is filed in the wrong Court, a Judge may, on his or her own initiative or an interlocutory application for the purpose, direct that the proceedings—

    • (a) be transferred to the proper Court; or

    • (b) may continue in the Court in which they have been commenced, in which case no later objection may be taken on the grounds that the proceedings are being conducted in the wrong Court.

    (4) A direction under subclause (3) may be subject to any terms or conditions the Judge thinks fit.

31 Procedure if applications presented for filing but incomplete or otherwise not in order
  • (1) A Registrar who considers that documents to be filed to make an application, and presented for filing, are incomplete, or otherwise not in order, may—

    • (a) decline to accept them for filing; or

    • (b) decline to accept them for filing, but explain to the applicant, and ask the applicant to do, what is necessary to put them in order for filing.

    (1A) An information sheet required to be filed under rule 20(1)(b) that is not on yellow paper is in order and must, when presented for filing, be accepted by the Registrar.

    (2) A person who is dissatisfied with a Registrar's decision under subclause (1) may make an interlocutory application without notice to a Judge to have the decision varied or rescinded.

    Rule 31(1A): inserted, on 7 August 2008, by rule 6 of the Family Courts Amendment Rules 2008 (SR 2008/207).

32 Procedure if application on notice accepted for filing
  • (1) A Registrar who accepts for filing the documents to be filed to make an application on notice must either—

    • (a) immediately fix a date and time for the hearing of the application; or

    • (b) enter the application on the Registrar's list (as defined in rule 8), so that it is regularly monitored, and managed and progressed either—

      • (i) to resolution without a hearing; or

      • (ii) to a point where the Registrar is permitted or required to fix a date and time for the hearing of the application, and does so under this subparagraph.

    (2) Promptly after a date and time is fixed for the hearing of an application, under subclause (1)(a) or (b)(ii), the Registrar must—

    • (a) inform the applicant of the date and time fixed; and

    • (b) complete, for each person required or intended to be served with the application, a copy of any notice to respondent or similar notice (set out in Schedules 2 to 9) indicating that the application has been made and how generally it may be responded to or defended; and

    • (c) issue for service on (that is, in general terms, make ready and complete for delivery to) each person of that kind a copy of the documents specified in subclause (3).

    (3) The documents referred to in subclause (2)(c) are—

    • (a) the application form; and

    • (b) the information sheet; and

    • (c) any notice to respondent or similar notice completed under subclause (2)(b); and

    • (d) any affidavits filed with the application; and

    • (e) any other document required to be issued for service on each person of that kind by a special rule contained in Part 5 (for example, by rule 408(b)).

    (4) However, a document must not be issued for service under subclauses (2)(c) and (3) if the document is—

    • (b) a document filed to make an application for a separation order, under section 21 of the Family Proceedings Act 1980:

    • (c) an affidavit in form FP 14 to accompany a joint application for an order dissolving a marriage or civil union, under section 39 of the Family Proceedings Act 1980.

    (5) A Judge may, on his or her own initiative or on an interlocutory application for the purpose, order that a copy of an affidavit issued for service under subclause (2)(c)—

    • (a) not be served on any or all of the persons required or intended to be served with the application; or

    • (b) not be served on any or all of those persons for the time being.

    (6) An applicant who has made an application on notice or the Registrar may, under rules 77 to 79, amend the application.

    Subclause (4)(c) was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

33 Procedure if application without notice accepted for filing
  • (1) A Registrar who accepts for filing an application without notice must, if the application requires an appearance by the applicant,—

    • (a) fix a date and time for the hearing of the application; and

    • (b) inform the applicant of the date and time fixed for the hearing.

    (2) An applicant who has made an application without notice or the Registrar may, under rules 77 to 79, amend the application.

34 Orders made on applications without notice
  • If an application without notice is made, and an order is made on the application,—

    • (a) the Registrar must, if the applicant was not present at the hearing of the application, make a copy of the order available to the applicant without delay:

    • (b) a copy of the order must, under rule 101 (documents to be served), be served on every person against whom the order is made:

    • (c) each person against whom the order is made may, at any time, make an interlocutory application to a Judge to have the order varied or rescinded.

Before any hearing

35 Documents to be served if applications on notice
  • (1) The documents issued for service under rule 32(2)(c) in relation to an application (the documents) must be served in accordance with rules 101 to 130 on every person required or intended to be served with documents relating to the application.

    (2) If all reasonable efforts have been made to serve the documents in a manner required or (as the case requires) a manner permitted by these rules, but the documents have not been served in that manner, in certain circumstances the applicant may, under rule 126, apply for an order for substituted service (that is, an order dispensing with or changing the service required by these rules).

36 Who must be served with applications on notice
  • If an application on notice is made, a copy of the documents issued for service under rule 32(2)(c) in relation to the application must be served on each person who will be a party to, or interested in, or likely to be affected by, the proceedings unless a Registrar or Judge directs otherwise on an interlocutory application for the purpose.

37 Special rules relating to service
38 Service of applications under certain Acts
39 Persons served with applications to give address for service
  • (1) A person who is served under rule 35 with an application, but who does not give an address for service, is not entitled—

    • (a) to be served with further notice of any step in connection with the proceedings, or of copies of any further documents filed in Court in connection with the proceedings; or

    • (b) to address the Court unless the Court permits the person to do so either—

      • (i) on its own initiative; or

      • (ii) on an interlocutory application for the purpose.

    (2) The person may give an address for service—

    • (a) by stating that address in the first document filed by, or on behalf of, the person (if a front page is required by rule 72 to be with the document, in that front page and, if no such front page is required, in or on the document itself); or

    • (b) by filing in Court a notice of that address, and serving a copy of the notice on every other party to the proceedings.

    (3) An address for service may be changed in the manner specified in rule 117 (change of address for service).

40 Notice of defence or notice of intention to appear
  • A person served under rule 35 with an application may, if permitted to do so by the family law Act under which the proceedings are brought or by special rules in Part 5 that apply to them, file in Court and serve on every other party to the proceedings—

    • (a) a notice of defence to the application in form G 12:

    • (b) a notice of intention to appear and be heard in relation to the application in form G 13.

41 Time within which notice of defence, or notice of intention to appear, to be filed and served
  • A notice of defence or notice of intention to appear must be filed and served by a person served under rule 35 with an application—

    • (a) within 21 days (or any other period specified for the purposes of this paragraph by any special rules in Part 5 that apply to the proceedings) after the person receives service of the application and notice to respondent (or similar notice) completed under rule 32(2)(b); or

    • (b) if the person resides outside New Zealand, unless the Court orders otherwise, within—

      • (i) 30 days if the person is served within the Commonwealth of Australia; or

      • (ii) 50 days if the person is served elsewhere; or

    • (c) if the person is the subject of an order for substituted service (see rule 126), within the time that the Judge or Registrar must fix on an interlocutory application that the applicant must make for the purpose.

    Rule 41(b): substituted, on 7 August 2008, by rule 7 of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 41(c): added, on 7 August 2008, by rule 7 of the Family Courts Amendment Rules 2008 (SR 2008/207).

42 Family Courts Amendment Rules 2009
  • (1) This rule applies to a person who—

    • (a) is served with an application; and

    • (b) is permitted to file and serve a notice of defence or notice of intention to appear; and

    • (c) fails to file and serve a notice of defence or notice of intention to appear within the time specified in or under rule 41.

    (2) If the person appears on the day of the hearing of the application to oppose or support the application, the Judge must decide whether it is in the interests of justice to allow the person to be heard.

    (3) In deciding, for the purpose of subclause (2), whether to allow the person to be heard in relation to the application, the Judge must take into account the following matters:

    • (a) any reason given by the person for failing to comply with rule 41; and

    • (b) the effect of the person's failure to comply with rule 41 on—

      • (i) the other parties to the proceeding:

      • (ii) the management of the proceeding.

    (4) The Judge may—

    • (a) allow the person to be heard in relation to the application on such terms as the Judge thinks fit; or

    • (b) decline to allow the person to be heard.

    (5) If the Judge allows the person to be heard in relation to the application, the Judge may—

    • (a) either—

      • (i) proceed with the hearing of the application in accordance with any directions that the Judge thinks fit; or

      • (ii) adjourn the hearing of the application and give any directions about the adjourned hearing that the Judge thinks fit; and

    • (b) make an order against the person for costs properly incurred in consequence of his or her failure to comply with rule 41.

    (6) If the Judge declines to allow the person to be heard, the Judge may proceed with the hearing of the application in accordance with rule 55(2) as if the person had not appeared.

    Rule 42: substituted, on 3 August 2009, by rule 4 of the Family Courts Amendment Rules 2009 (SR 2009/185).

43 Appearance under protest to jurisdiction
  • (1) A respondent who objects to the jurisdiction of the Court to hear and determine the proceedings in which the respondent has been served may, within the time specified in or under rule 41 for filing a notice of defence, and instead of doing so, file and serve an appearance stating the respondent's objection and the grounds for it.

    (2) The filing and serving of an appearance under subclause (1) is not, and must not be treated as, a submission to the jurisdiction of the Court in the proceedings.

    (3) A respondent who has filed an appearance under subclause (1) may apply to the Court to dismiss the proceedings on the ground that the Court has no jurisdiction to hear and determine them.

    (4) On hearing an application under subclause (3), the Court,—

    • (a) if it is satisfied that it has no jurisdiction to hear and determine the proceedings, must dismiss them; but

    • (b) if it is satisfied that it has jurisdiction to hear and determine the proceedings, must dismiss the application and set aside the appearance.

    (5) At any time after an appearance has been filed under subclause (1), the applicant may make an interlocutory application to have the Court set aside the appearance.

    (6) On hearing an application under subclause (5), the Court,—

    • (a) if it is satisfied that it has jurisdiction to hear and determine the proceedings, must set aside the appearance; but

    • (b) if it is satisfied that it has no jurisdiction to hear and determine the proceedings, must dismiss both the application and the proceedings.

    (7) The Court, in exercising its powers under this rule, may do so on any terms and conditions that may be just and, in particular, on setting aside the appearance may—

    • (a) extend the time within which the respondent may file and serve a notice of defence; and

    • (b) give any directions that may appear necessary regarding any further steps in the proceedings.

    Compare: SR 1992/109 r 139

44 Appearance for ancillary purposes
  • A respondent who does not oppose the applicant's application, but who desires to be heard on any ancillary matter (including costs) may, without filing a notice of defence, file and serve an appearance specifying those matters, and, once that is done, no matter specified in the appearance may be determined except on notice to that respondent.

    Compare: SR 1992/109 r 140

45 Appearance reserving rights
  • (1) Subclause (2) applies to a respondent who does not oppose the applicant's application, but who desires to reserve the respondent's rights in the event—

    • (a) that any other person may become a party to the proceedings; or

    • (b) that any person, already a party, may take some steps in the proceedings adverse to the respondent's interests.

    (2) The respondent may file and serve an appearance reserving those rights, and, once that is done, the respondent is entitled to be served with all documents relevant to the rights so reserved that may be filed in the proceedings by any person who is or may become a party to them.

    (3) A respondent who has filed an appearance under subclause (2) may at any time, by leave of the Court, file and serve a notice of defence and any other document, within a time and on any terms and conditions the Court specifies on granting the leave.

    Compare: SR 1992/109 r 141

46 Forms for entering an appearance
  • Form 8 or form 9 or form 10 of the District Courts Rules 1992 may be used, as appropriate, and with all necessary modifications, for the purposes of entering an appearance under rules 43 to 45.

    Compare: SR 1992/109 r 142

47 Getting more information or getting admissions
  • (1) A party to an application may get more information, or get an admission, from another party to the proceedings, or a person who is not a party to the proceedings, by—

    • (b) issuing to the other party, under rule 138, a notice to admit facts:

    • (c) issuing to the other party, under rule 139, a notice requiring the other party to file in Court and serve on each person served with the proceedings further particulars:

    • (d) applying to the Judge (see rules 140 to 152) for an order for discovery of documents that—

      • (i) are or have been in the possession or power of the other party or of the person who is not a party; and

      • (ii) relate to a matter in question in the proceedings:

    • (e) issuing to the other party, under rule 153, a notice to produce documents:

    • (f) issuing to the other party, under rule 154, a notice to admit documents.

    (2) In subclause (1),—

    further particulars means further information required to ensure that the Court and the party issuing the notice are fully and fairly informed of the matters relied on by the other party

    interrogatories means questions in writing that a party to proceedings asks another party to the proceedings about matters in issue between them in the proceedings

    notice to admit documents means a notice requiring the other party to admit, for the purpose of the proceedings only, the authenticity of a document specified in the notice or, by another notice served on the party issuing the first notice, to dispute the authenticity of that document

    notice to admit facts means a notice requiring the other party to admit, for the purpose of the proceedings only, facts specified in the notice or, unless the Judge orders otherwise on an interlocutory application for the purpose, to pay the cost of proving those facts

    notice to produce documents means a notice that must be treated as an order of the Court and that requires the other party, unless the Judge orders otherwise on an interlocutory application for the purpose, to produce any document or thing specified in the notice for the purpose of evidence at any hearing of the application or before a Judge or other person authorised to take evidence in the proceedings.

48 Evidence at hearing generally to be by affidavit
  • (1) Evidence given in support of a party's case at any hearing of an application must be given by affidavit.

    (2) Subclause (1) does not apply if the Court, on its own initiative or on an interlocutory application for the purpose, directs that some or all of that evidence may be given orally.

49 Procedure when evidence given by affidavit
  • The following rules apply in respect of affidavits:

    • (a) rule 157 (which relates to orders requiring people who refuse to make affidavits as to facts relevant to proceedings to appear and be examined on oath before the Court as to those facts):

    • (b) rules 158 to 168 (which set out requirements affidavits must comply with, and permit a Judge to excuse non-compliance with some of those requirements):

    • (c) rule 156 (which prevents affidavits from being used or read in proceedings unless they have been properly taken and filed):

    • (d) rule 169 (which relates to cross-examination of a deponent who has sworn an affidavit for an opposite party and, by witness summons, compelling the deponent to attend at any hearing in order to be cross-examined).

50 Witness summons
  • (1) A party to proceedings may ask a Registrar to issue a witness summons in form G 18 for a person if the party wants the person to attend any hearing of the application and—

    • (a) give oral evidence in accordance with a Judge's direction under rule 48:

    • (b) produce any document relating to a matter in question in the proceedings in the person's possession or power.

    (2) On receiving a request under subclause (1), the Registrar must issue to the party the witness summons and a copy of it.

    (3) The witness summons must be served on the witness concerned by personal service at a reasonable time before any date fixed for the hearing of the application.

    (4) At the time of the service of the summons, there must be paid or tendered to the witness concerned the sum estimated to be payable to him or her for allowances and travelling expenses, but not fees, under the Witnesses and Interpreters Fees Regulations 1974.

    (5) Nothing in subclause (4) limits rule 51.

51 Witness entitled to expenses
  • (1) A witness attending a Court on a witness summons or any other person giving evidence in the proceedings is entitled to receive, from the party calling him or her, a sum for fees, allowances, and travelling expenses in accordance with the Witnesses and Interpreters Fees Regulations 1974.

    (2) The Court may, on an interlocutory application for the purpose,—

    • (a) disallow the whole or part of that sum; or

    • (b) order that subclause (1) does not apply.

    (3) Subclause (1) does not apply to a person called as a witness by a Court under section 82 of the Domestic Violence Act 1995 (including persons to whom that section applies by virtue of sections 42 and 78(5) of that Act).

    (4) Nothing in subclause (3) limits regulation 3 of the Domestic Violence (General) Regulations 1996.

    Compare: 1996/148 r 99

52 Conferences
  • (1) A party to proceedings or the Judge may (under the following rules or under the provisions of the family law Acts referred to in those rules) ask the Registrar to arrange for the following conferences, chaired by a Judge, to be convened:

    (2) The Judge may (whether or not a conference referred to in subclause (1) has been convened) direct the Registrar to arrange for the following conferences, chaired by a Judge, to be convened under the following rules:

    • (a) a judicial conference under rule 174:

    • (b) a settlement conference under rule 178.

    (3) Nothing in this rule limits the Court's power, on an application under section 38 of the Property (Relationships) Act 1976, to appoint the Registrar of the Court, or another person the Court thinks fit, to make an inquiry into the matters of fact in issue between the parties, and to report on them to the Court.

Steps at hearing

53 Court and Chambers
  • (1) A Judge may adjourn a hearing of an application from Court to Chambers (that is, a venue the Judge considers more private than Court), and from Chambers to Court, in order to do justice between parties to the proceedings and any other persons affected, or likely to be affected, by the proceedings.

    (2) A Judge may adjourn a hearing under subclause (1) on his or her own initiative or on an interlocutory application (either on notice or without notice) for the purpose.

54 Ascertaining wishes or views of child or young person
  • If a Court is required, or considers it necessary or desirable, to ascertain the wishes of a child or young person at any hearing of any application, the Court may—

    • (a) order that any party to the proceedings, and the lawyers or other persons representing a party or the child or young person, be excluded from the hearing for so long as may be necessary to ascertain those wishes or views; or

    • (b) direct when and where the Judge will ascertain those wishes or views.

    The heading was amended, as from 1 July 2005, by rule 10(1) Family Courts Amendment Rules 2005 (SR 2005/101) by inserting the words or views after the word wishes.

    Paragraphs (a) and (b) were amended, as from 1 July 2005, by rule 10(2) Family Courts Amendment Rules 2005 (SR 2005/101) by inserting the words or views after the word wishes.

55 Procedure if some or all parties do not appear
  • (1) If no party appears, the Court may dismiss the application.

    (2) If the applicant appears but no other party appears, the applicant may proceed to establish the grounds on which he or she claims to be entitled to the order or declaration sought.

    (3) If the applicant does not appear but another party appears and opposes the application, the Court may—

    • (a) adjourn the hearing; or

    • (b) dismiss the application.

    (4) Subclause (3) does not apply to a person to whom rule 42 applies.

    Compare: SR 1992/109 rr 485-487

    Rule 55(4): added, on 3 August 2009, by rule 5 of the Family Courts Amendment Rules 2009 (SR 2009/185).

56 Judgment following non-appearance may be set aside
  • A judgment given where a party does not appear at the hearing may be set aside or varied by the Court on any terms it considers just if it appears to the Court that there has been, or that there may have been, a miscarriage of justice.

    Compare: SR 1992/109 r 488

57 Procedure if all parties appear
  • (1) If all parties appear at the hearing, the applicant must state his or her case and give evidence in support unless the Court directs another party to do so.

    (2) When that party finishes stating his or her case and giving evidence in support, the other parties must state their cases and give evidence in support in a sequence directed by the Court.

    (2A) Subclause (2) does not apply to a person to whom rule 42 applies.

    (3) When all parties have stated their cases and given evidence in support, the parties may address the Court on the application generally in reverse sequence to that in which they stated their cases unless the Court directs another sequence.

    Compare: SR 1992/109 r 489

    Rule 57(2A): inserted, on 3 August 2009, by rule 6 of the Family Courts Amendment Rules 2009 (SR 2009/185).

Steps at end of hearing

58 What Court may do at end of hearing
  • (1) At the end of a hearing of an application, the Court may—

    • (a) adjourn the proceedings:

    • (b) stay or dismiss the application:

    • (c) deliver or reserve judgment on the application:

    • (d) make 1 or more interim orders or interlocutory orders:

    • (e) make, or defer until some fixed or indefinite later time the making of, 1 or more orders on the application.

    (2) Subclause (1) does not limit or affect any power or duty of the Court under these rules or any other enactment or rule of law.

    (3) Rules 196 to 206 apply in respect of judgments and orders.

Rehearings

59 Rehearings
  • Under rules 209 to 213,—

    • (a) a party to proceedings may apply for a rehearing of all or any part of an application on the grounds that there has been a miscarriage of justice in the proceedings:

    • (b) the Court may consider the application for a rehearing and order that the application, or part of it, be reheard:

    • (c) a rehearing of the application, or part of it, may be conducted.

Rights of appeal to High Court

60 Rights of appeal under family law Acts
  • Certain parties to proceedings have, under the family law Act under which the proceedings were brought, rights of appeal to the High Court against an order made, or a refusal to make an order, or any other decision that finally determines or dismisses the proceedings.

Part 3
Rules about particular aspects of proceedings

Overview of Part

61 Overview of this Part
  • (1) This Part contains rules about particular aspects of proceedings in Family Courts.

    (2) It should be read with all other Parts of these rules.

    (3) The application of this Part to proceedings is modified by any rules in Part 5 that apply to the proceedings (Part 5 contains rules that modify this Part).

    (4) Among other things, this Part contains rules on the following matters:

    • (a) forms, and the shape, etc, of documents to be filed:

    • (b) how to file documents in Court:

    • (c) lawyers and representatives:

    • (d) service of documents:

    • (e) discovery and inspection of documents:

    • (f) procedures when evidence is given by affidavit:

    • (g) conferences:

    • (h) judgments and orders:

    • (i) costs:

    • (j) rehearings.

    (5) This rule is only a guide to the general scheme and effect of this Part.

Forms

62 Forms
  • (1) The forms to be used in proceedings in a Court are those set out in Schedule 1.

    (2) However, special rules in Part 5 require that, in proceedings under particular family law Acts, other forms (set out in Schedules 2 to 9) be used as well as, or (if they are for the particular purpose) instead of, the forms set out in Schedule 1.

    (3) An example of a special rule in Part 5 of that kind is rule 241, which provides that the forms set out in Schedule 2 must be used in proceedings under the Adoption Act 1955.

    (4) Forms prescribed by these rules may be varied as the circumstances of a particular case require.

    (5) Strict compliance with forms prescribed by these rules is not required; substantial compliance, or the compliance that the particular circumstances of the case allows, is sufficient.

    (6) If these rules do not prescribe a form for a particular purpose, an appropriate form may be devised by the parties or by the Court, using as guides the forms prescribed by these rules.

    Compare: SR 1996/148 r 9

Shape, etc, of documents to be filed

63 Documents to which rules 64 to 69 apply
  • In rules 64 to 69, document means—

    • (a) a prescribed form (other than an information sheet); or

    • (b) an affidavit (but not an exhibit to an affidavit).

64 Paper
  • Each page of a document must be International size A4.

    Compare: SR 1992/109 r 22

65 Contents must be only on 1 side of paper
  • Each sheet of paper on which the contents of a document are recorded must have those contents recorded only on 1 side.

    Compare: SR 1996/148 r 10(3)

66 Margin
  • (1) A margin of at least 40 mm must be at the top of each page of a document.

    (2) A margin of at least 30 mm must be on the left-hand side of each page of a document.

    (3) A margin of at least 50 mm must be on the right-hand side of each page of a document.

    Compare: SR 1996/148 r 10(2)

67 Numbers
  • (1) Numbers in a document must be expressed in figures and not in words.

    (2) This rule is subject to Schedules 1 to 9.

    Compare: SR 1992/109 r 34

68 Division into paragraphs
  • (1) The contents of a document must be divided into paragraphs numbered consecutively.

    (2) Each paragraph in a document must so far as practicable be confined to a single topic.

    (3) This rule is subject to Schedules 1 to 9.

    Compare: SR 1992/109 r 33

69 Fastening and numbering of pages
  • In a document of 2 or more pages, the pages must be—

    • (a) securely fastened together in the top left-hand corner; and

    • (b) consecutively numbered at the top of each page.

    Compare: SR 1992/109 r 28

70 Contents must be legible
  • The contents of a document must be—

    • (a) legible; and

    • (b) typewritten, printed, handwritten, or produced in permanent form by photocopying.

    Compare: SR 1992/109 r 24(1); SR 1996/148 r 10(4)

71 Signature to be original
  • If a document is required to be signed,—

    • (a) an original signature is required; and

    • (b) the name of the signatory must be legibly typed, printed, stamped, or written below the original signature.

    Compare: SR 1992/109 r 25

72 Front page
  • (1) A document (other than a document specified in subclause (4)) to be filed by a party to proceedings must have a front page—

    • (a) in the form prescribed for those particular proceedings, as set out in Schedules 2 to 9; or

    • (b) if no form is prescribed for those particular proceedings, in form G 1 (as set out in Schedule 1).

    (2) If 1 or more of the parties to the proceedings resides in a country other than New Zealand, the words New Zealand must appear on the front page after the location of the Court where the proceedings have been filed.

    (3) If the document being filed is not a document required to be filed to make an application, initials of a person may be used on the front page instead of first or given names of the person.

    (4) The following documents need not have a front page:

    • (a) a document tendered in evidence, a certificate, or a report:

    • (b) form G 7 (information sheet to accompany certain applications (including certain applications made without notice)):

    • (d) form DV 6 (information for police if application made for protection order):

    • (e) form FP 1 (request for counselling in respect of marriage, civil union, or de facto relationship):

    (5) This rule is subject to directions of the Court to the contrary (for example, a direction that the address of an applicant or respondent be omitted).

    Compare: SR 1981/261 r 13

    Subclause (4)(e) was amended, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words , civil union, or de facto relationship after the word marriage.

73 Heading
  • (1) A document (other than a document specified in subclause (4)) to be issued by a Court or Registrar must have a heading—

    • (a) in the form prescribed for those particular proceedings, as set out in Schedules 2 to 9; or

    • (b) if no form is prescribed for those particular proceedings, in form G 2 (as set out in Schedule 1).

    (2) If 1 or more of the parties to the proceedings resides in a country other than New Zealand, the words New Zealand must appear on the heading after the location of the Court where the proceedings have been filed.

    (3) If the heading does not require first or given names, addresses, or occupations to be used, to distinguish between 2 or more persons,—

    • (a) initials may be used; and

    • (b) addresses and occupations may be omitted.

    (4) The following documents need not have a heading:

    • (a) form FP 2 (notice to respondent of reference to counselling):

    (5) This rule is subject to directions of the Court to the contrary.

    Compare: SR 1981/261 r 13

74 Front page must comply with requirements of rule 82
  • If a document is the first document filed by, or on behalf of, a party in any particular proceedings or intended proceedings, the front page required by rule 72 to be with the document must also comply with the requirements of rule 82.

How to file documents in Court

75 Filing documents
  • (1) To be filed in a Court, a document must be—

    • (a) presented for filing at the office of the Court—

      • (i) by, or on behalf of, the party seeking to file it; and

      • (ii) with the applicable fee (if any); and

    • (b) accepted for filing by the Registrar.

    (2) Nothing in this rule limits rule 28 or any special rule in Part 5 about the proper Court for applications under a family law Act.

76 Ways documents may be presented for filing
  • (1) A party (or a party's agent or employee) may present a document for filing at a Court by—

    • (a) going in person to the Court office and—

      • (i) giving the Registrar the document, together with the number of copies of the document (if any) that are required for service and any fee payable for filing the document; and

      • (ii) asking the Registrar to accept the document for filing; or

    • (b) sending to the Court office by prepaid post—

      • (i) the document, together with any copies of the document and any fee that the party (or agent or employee) would have been required to give the Registrar under paragraph (a)(i) if the party (or agent or employee) had gone in person to the office of the Court; and

      • (ii) the amount of any money to be paid or tendered to any party or witness.

    (2) Nothing in this rule limits rule 83 or rule 94.

Amendment of certain documents filed

77 Amendment of application form before it is served
  • A Registrar may amend an application form before it is served if, before it is served, the Registrar receives from the applicant a written request to amend it.

    Compare: 1996/148 r 67(1)

78 Amending documents in proceedings
  • (1) The Court may, on its own initiative or on an interlocutory application for the purpose, at any stage of the proceedings,—

    • (a) amend a defect or error in a document in the proceedings, whether or not the defect or error is that of the party applying to amend:

    • (b) amend the name, address, or occupation of a party to the proceedings as set out in a document in the proceedings:

    • (c) make any other amendments to a document in the proceedings that may be necessary for the purpose of ensuring that the real question in dispute between the parties is determined.

    (2) If an amendment is made to documents in proceedings under subclause (1), the proceedings continue as if they had been commenced with the documents in the form in which they appear after the amendment has been made.

    Compare: 1996/148 r 68

79 Amendment of application form, or notice of defence or intention to appear
  • (1) An applicant may file and serve an amended application form, and a respondent may file and serve an amended notice of defence,—

    • (a) without the leave of the Court, at any time before the application has been set down for hearing; or

    • (b) with the leave of the Court, at any time after the application has been set down for hearing or if no hearing is required.

    (2) When an application form or a notice of defence is amended, the Court may, at the hearing, adjourn the hearing for a time and on any terms the Court considers just.

    (3) This rule, so far as applicable and with all necessary modifications, applies to a notice of intention to appear.

    Compare: SR 1996/148 r 69

Lawyers

80 Party need not have lawyer
  • (1) A party need not have a lawyer to act for the party in proceedings.

    (2) This rule is subject to enactments that permit or require a Court or Registrar to appoint a lawyer for a party, for example,—

    • (a) section 159 of the Children, Young Persons, and Their Families Act 1989:

    • (b) section 81 of the Domestic Violence Act 1995:

    • (d) section 7 of the Care of Children Act 2004:

    Subclause (2)(d) was substituted, as from 1 July 2005, by rule 11 Family Courts Amendment Rules 2005 (SR 2005/101).

81 Lawyers who are, or act for, adverse parties
  • (1) A lawyer must not act for a party if the lawyer, or another lawyer in partnership with the lawyer,—

    • (a) is a party to the proceedings and has an interest in the subject matter of the proceedings that differs from the party's interest; or

    • (b) is acting for another party to the proceedings who has an interest in the subject matter of the proceedings that differs from the party's interest.

    (2) However, a party may seek the leave of the Court to engage to act for the party a lawyer of the kind referred to in subclause (1).

    Compare: SR 1992/109 r 39

82 Memorandum to be on front page with first document filed
  • (1) If a document is the first document filed by, or on behalf of, a party, in any particular proceedings or intended proceedings, there must, at the end of any front page required by rule 72 to be with the document, be a memorandum in form G 4 stating—

    • (a) that the document is filed by the party or the party's lawyer; and

    • (b) if the document is filed by the party's lawyer,—

      • (i) the name of the lawyer; and

      • (ii) if the lawyer is a member of a firm or practises under the name of a firm, the name of the firm; and

    • (c) if the document is filed by a lawyer who has another lawyer acting as his or her agent in the proceedings,—

      • (i) the name of the agent, or of his or her firm (if any); or

      • (ii) the postal address of the party's lawyer; and

    • (d) an address for service; and

    • (e) if the document is filed by a lawyer, any Post Office box address, document exchange number, or fax number where the lawyer will accept service of documents during the proceedings.

    (2) The lawyer whose name is stated in the memorandum must, for the purposes of these rules, be treated as the lawyer on the record for that party.

    (3) Nothing in subclause (2) limits rule 87.

    Compare: SR 1992/109 rr 41, 43

83 Lawyer filing documents on behalf of party
  • A lawyer must not file a document on behalf of a party unless—

    • (a) the lawyer is in practice on his or her own account or as a principal in a firm of lawyers; or

    • (b) the lawyer is a Crown Counsel employed at the Crown Law Office; or

    • (c) the party is a corporation and the lawyer is employed by that party as its principal legal adviser, or is a lawyer of the kind described in paragraph (a) or paragraph (b); or

    • (d) the party is a department (as defined in section 2(1) of the Public Finance Act 1989) and the lawyer is employed by that party as its Office Solicitor or principal legal adviser or as a lawyer under the control and direction of its Office Solicitor or principal legal adviser, or is a lawyer of the kind described in paragraph (a) or paragraph (b); or

    • (e) the party is Public Trust and the lawyer is employed by that party as its office solicitor (as defined in section 4 of the Public Trust Act 2001), or is a lawyer of the kind described in paragraph (a) or paragraph (b).

    Compare: SR 1992/109 r 38

84 Lawyer's warranty as to authorisation to file documents
  • A lawyer who files a document or has another person file a document for the lawyer must be treated as having warranted to the Court and all parties to the proceedings that the lawyer is authorised to file the document by, or on behalf of, the party on whose behalf the document was filed.

    Compare: SR 1992/109 r 40

85 Lawyer may sign certain documents on behalf of party
  • Unless the party's personal signature is expressly required, a document required by these rules to be signed by a party may be signed on behalf of the party by the lawyer acting for the party.

    Compare: SR 1992/109 r 42

86 Lawyer acting in person
  • (1) A lawyer who is a party to proceedings and acts in person is entitled to lawyers' costs.

    (2) This rule is subject to rule 207(a).

    Compare: 1992/109 r 52

87 Change of representation
  • (1) A party must file and serve on every other party to the proceedings a notice of change of representation if—

    • (a) the party has acted in person and appoints a lawyer to act for that party; or

    • (b) the party wishes to change that party's lawyer; or

    • (c) the party for whom a lawyer has acted wishes to act in person.

    (2) If the party's address for service after the change of representation will be different from that which applied before the change, the party must also serve a copy of the notice at the address that was, immediately before the change, the party's address for service.

    (3) The notice—

    • (a) must be signed by the party personally or by the party's attorney; and

    • (b) in the case of a notice under subclause (1)(a) or (b), must contain the information about the new lawyer required by rule 82(1)(b) to (e); and

    • (c) in the case of a party referred to in subclause (1)(c), must state that the party's intention is to act in person.

    (4) For the purposes of the proceedings, the change of representation takes effect on the filing of an affidavit proving compliance with subclause (1) and exhibiting and verifying a copy of the notice served.

    (5) Form G 3 may be used for a notice under this rule.

    Compare: SR 1992/109 r 44(1)-(4), (7)

88 Court may declare that lawyer no longer acting for party
  • (1) If a party engages a lawyer to act for the party in proceedings, the lawyer must continue to act for the party until—

    • (a) the party engages a new lawyer to act for the party under rule 87; or

    • (b) the party decides to act in person under rule 87; or

    • (c) a Court, by an order made on an interlocutory application for the purpose by the lawyer, declares that the lawyer is no longer acting for the party.

    (2) An application under subclause (1)(c) must—

    • (a) be accompanied by an affidavit setting out the grounds for the application; and

    • (b) be served (with a copy of that affidavit) on the party for whom the lawyer acted unless the Court directs otherwise.

    (3) The notice of the application served on the party for whom the lawyer acted must inform the party of the effect that rule 121 will have if the order is made.

    (4) An order made under this rule—

    • (a) does not take effect until the lawyer has served a copy of it on every party to the proceedings and filed an affidavit proving that service; and

    • (b) does not affect the rights of the lawyer and the party for whom the lawyer acted as between themselves.

    Compare: SR 1992/109 r 44A

Representatives and managers

89 Persons who may start, take part in, or defend proceedings only through representatives or managers
  • (1) In this rule, and rules 91 and 96 to 98, taking part in proceedings includes commencing or defending proceedings.

    (2) A person must not take part in proceedings in his or her own name, but must take part in proceedings through a representative if the person is—

    • (a) a minor; or

    • (b) [Revoked]

    • (c) a person who a Court, on its own initiative or on an interlocutory application with or without notice for the purpose, orders is a person who needs a representative.

    (2A) An incapacitated person must have a litigation guardian as his or her representative in any proceeding, unless the Court orders otherwise.

    (2B) If a person becomes an incapacitated person during a proceeding, a party must not take any step in the proceeding without the permission of the Court until the incapacitated person has a litigation guardian.

    (3) A person must not take part in proceedings in his or her own name, but must take part in proceedings through a manager if—

    • (a) a manager has been appointed for the person by a property order made under section 31 of the Protection of Personal and Property Rights Act 1988 and—

      • (i) the order empowers the manager to take part in the proceedings; and

      • (ii) the proceedings relate to property of the person that is property subject to the property order; or

    • (b) a trustee corporation is acting as a manager for the person under an application under section 32 or section 33 of the Protection of Personal Property Rights Act 1988 and—

      • (i) the application empowers the trustee corporation to take part in the proceedings; and

      • (ii) the proceedings relate to property of the person that is property being managed by the trustee corporation under the application.

    (4) Subclause (2) is subject to the following sections and to every other enactment or rule of law that authorises a person referred to in subclause (2) to take part in proceedings without a representative:

    • (f) section 52 of the Property (Relationships) Act 1976.

    (5) Nothing in this rule limits or affects—

    • (a) any power to appoint a lawyer for a party; or

    • (b) any requirement that a lawyer be appointed for a party.

    Compare: SR 1992/109 rr 83, 84(1)

    Rule 89(2)(b): revoked, on 7 August 2008, by rule 8(1) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 89(2A): inserted, on 7 August 2008, by rule 8(2) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 89(2B): inserted, on 7 August 2008, by rule 8(2) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Subclause (4)(e) was substituted, as from 1 July 2005, by rule 12 Family Courts Amendment Rules 2005 (SR 2005/101).

    Rule 89(5): amended, on 7 August 2008, by rule 8(3) of the Family Courts Amendment Rules 2008 (SR 2008/207).

90 Appointment of representatives
  • (1) The Court or Registrar may appoint a person as a litigation guardian to a minor who is a party in proceedings or intended proceedings if an interlocutory application for the purpose has been made, with or without notice,—

    • (a) by the proposed litigation guardian; or

    • (b) by the party or intended party to the proceedings.

    (2) The Court or a Registrar may appoint a person as a litigation guardian to a person to whom section 11 of the Domestic Violence Act 1995 applies (that is, a person lacking capacity, and includes a person to whom that section applies by virtue of section 22(6) or section 48 or section 73 or section 92 of that Act) if an interlocutory application for the purpose has been made with or without notice, in form DV 7,—

    • (a) by the proposed guardian; or

    • (b) by a party to the proceedings; or

    • (c) with the leave of the Court, any other person.

    (3) The Court or Registrar may only appoint a person as the litigation guardian to a minor under subclause (1) or to a person lacking capacity under subclause (2) if, in the case of a minor, no next friend is acting for the party and, in either case, the person to be appointed—

    • (a) consents in writing to the appointment; and

    • (b) is not unable to perform the functions of the office; and

    • (c) is unlikely to have any interests in the subject matter of the proceedings that conflict with the party's interests in the subject matter of the proceedings.

    (3A) The Court or a Registrar may appoint a litigation guardian for a person if the Court or Registrar is satisfied that—

    • (a) the person for whom the litigation guardian is to be appointed—

      • (i) is an incapacitated person; and

      • (ii) does not have a litigation guardian; and

    • (b) the litigation guardian—

      • (i) is able fairly and competently to conduct proceedings on behalf of the incapacitated person; and

      • (ii) does not have interests adverse to those of the incapacitated person; and

      • (iii) consents to being a litigation guardian.

    (3B) In deciding whether to appoint a litigation guardian under subclause (3A), the Court or Registrar may have regard to any matters the Court or Registrar considers appropriate, including the views of the person for whom the litigation guardian is to be appointed.

    (3C) The Court or a Registrar may appoint a litigation guardian under subclause (3A) at any time—

    • (a) on the Court's or Registrar's own initiative; or

    • (b) on the application of any person, including a person seeking to be appointed as litigation guardian.

    (4) A person must be treated as appointed as the next friend to a minor if the person has filed in the Court—

    • (a) an affidavit showing that he or she is not unable to perform the functions of the office and that there is unlikely to be any conflict between his or her interests in the subject matter of the proceedings and the minor's interests in the subject matter of the proceedings; and

    • (b) an undertaking to be responsible for any costs awarded in the proceedings against the minor.

    (5) A person appointed as a guardian ad litem to a person under section 10(1)(i) of the Protection of Personal and Property Rights Act 1988 must file in the Court a copy of the order appointing him or her in that capacity unless rule 92 applies.

    Compare: SR 1992/109 rr 84, 85(1), (2), 94(2)(a), (4); SR 1996/148 r 36

    Rule 90(1): amended, on 7 August 2008, by rule 9(1) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 90(1)(a): amended, on 7 August 2008, by rule 9(1) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 90(2): amended, on 7 August 2008, by rule 9(1) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 90(3): amended, on 7 August 2008, by rule 9(1) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 90(3A): inserted, on 7 August 2008, by rule 9(2) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 90(3B): inserted, on 7 August 2008, by rule 9(2) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 90(3C): inserted, on 7 August 2008, by rule 9(2) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 90(5): amended, on 7 August 2008, by rule 9(3) of the Family Courts Amendment Rules 2008 (SR 2008/207).

91 Managers under Protection of Personal and Property Rights Act 1988
  • (1) A manager who is empowered to do so by a property order made under section 31 of the Protection of Personal and Property Rights Act 1988, or an application made under section 32 or section 33 of that Act, may take part in proceedings relating to property of a party that is property subject to the order or application, but, before doing so, the manager must file in the Court a copy of the order or application unless rule 92 applies.

    (2) If the order or application does not empower the manager to take part in proceedings relating to property of a party that is property subject to the order or application, the party may take part in the proceedings of that kind in his or her own name unless a person is appointed as the party's representative under rule 90.

    (3) If a party to proceedings relating to property has a representative appointed under rule 90 but becomes the subject of a property order under section 31 of the Protection of Personal and Property Rights Act 1988 relating to the property, or an application made under section 32 or section 33 of that Act relating to the property, and the manager is empowered by the order or application to take part in the proceedings for the party,—

    • (a) the party's manager must take part in the proceedings; and

    • (b) the representative's appointment is terminated.

    (4) This rule is subject to section 223 of the Child Support Act 1991.

    Compare: SR 1992/109 rr 91, 96(2)

92 Family Courts appointing guardians ad litem or managers for proceedings in District Courts
  • If, for the purpose of particular proceedings in a District Court, a Family Court makes an order under section 10(1)(i) of the Protection of Personal and Property Rights Act 1988 appointing a guardian ad litem to, or a manager for, a person,—

    • (a) the Registrar of the Family Court must send a copy of that order to the Registrar of the District Court in which the proceedings are to be, or have been, commenced; and

    • (b) the guardian ad litem or manager need not comply with the duty under rule 90(5) or rule 91(1) to file a copy of the order.

    Compare: SR 1992/109 r 94(3)

    Rule 92: amended, on 7 August 2008, by rule 10 of the Family Courts Amendment Rules 2008 (SR 2008/207).

93 Representatives and managers may sign documents and swear affidavits on behalf of party
  • (1) A document or affidavit intended for use in proceedings and required to be signed or sworn by a party may be signed or sworn by the party's representative or manager unless the Court or a Registrar directs otherwise.

    (2) An affidavit of a party who is 16 years old or older and not an incapacitated person must be made by the party and not by the party's representative.

    (3) Subclause (2) overrides subclause (1).

    Compare: SR 1992/109 r 100

    Rule 93(2): amended, on 7 August 2008, by rule 11 of the Family Courts Amendment Rules 2008 (SR 2008/207).

94 Representative capacity
  • If an application is made by an applicant in a representative capacity, the application must include a statement that specifies the representative capacity in which the applicant is acting.

    Compare: SR 1992/109 r 125

95 Responsibility of representative for costs
  • (1) Except as provided in subclauses (2) and (3), a representative is responsible for—

    • (a) costs awarded against the party he or she represents; and

    • (b) costs (including solicitor and client costs) paid or incurred by the representative while acting as a representative.

    (2) The Court or the Registrar may, on the appointment of a representative under rule 90(1) or (2) or section 12 of the Domestic Violence Act 1995, order that the representative not be responsible for any costs awarded against the party he or she represents.

    (3) A representative may, by an interlocutory application, apply to the Court for an order that the representative—

    • (a) not be responsible for any costs awarded against the party he or she represents; or

    • (b) recover costs paid or incurred by him or her while acting as a representative (including solicitor and client costs),—

      • (i) if the party is an incapacitated person, from the party's property; or

      • (ii) if the party is a minor, from the party's estate.

    (4) In proceedings to decide whether an order under subclause (3) should be made, the party may be represented by—

    • (a) a lawyer appointed by the Court; or

    • (b) in the case of a person for whom a manager has been appointed, a manager.

    Compare: SR 1992/109 rr 84(2)(b), 85(3), 86, 94(5), 97

    Rule 95(3)(b)(i): amended, on 7 August 2008, by rule 12(1) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 95(4)(b): amended, on 7 August 2008, by rule 12(2) of the Family Courts Amendment Rules 2008 (SR 2008/207).

96 Responsibility of manager for costs
  • (1) A manager who in his or her capacity as the manager of the whole, or part of, a party's property has represented the party—

    • (a) is not personally responsible for costs awarded against the party; and

    • (b) may recover, from the party's property, costs (including solicitor and client costs) paid or incurred by him or her while acting as a manager.

    (2) Subclause (1)(b) does not apply when a manager has acted in bad faith or without reasonable care in taking part in the proceedings for which the costs have been awarded or incurred.

    Compare: SR 1992/109 r 92

97 Retirement, removal, or death of representative
  • (1) A representative may retire only with the leave of the Court.

    (2) A representative who retires must, if an opposite party requires, give security for some or all of the costs incurred by the party represented by the representative unless the Court orders otherwise.

    (3) A Court that considers it appropriate to do so may order that a person be removed as a party's representative.

    (4) A Court that makes an order under subclause (3) may also order that the representative give to the party represented by the representative, or to an opposite party, security for some or all of the costs already incurred in the proceedings.

    (5) If a party's representative in proceedings dies, retires, or is removed, and rule 98 does not apply to the party, no further steps may be taken in the proceedings until another person has been appointed as—

    • (a) the party's representative in the proceedings under rule 90; or

    • (b) a manager.

    (6) In the case of a person appointed as a representative under section 12 of the Domestic Violence Act 1995, subclause (5) is subject to section 12(5) of that Act.

    Compare: SR 1992/109 rr 87, 98

98 When further steps to be taken by party and not by representative or manager
  • (1) This rule applies to the following parties for whom a representative or manager has been appointed or is acting:

    • (a) a person who was a minor but who has turned 20 years of age:

    • (b) a minor taking part in proceedings under the Domestic Violence Act 1995 if the minor marries or enters into a civil union or turns 17 years of age:

    • (d) a person who has been an incapacitated person if the person is no longer incapacitated:

    • (e) a person who, under the Protection of Personal and Property Rights Act 1988, has a manager empowered to take part in the proceedings for the person if, under section 34 of that Act,—

      • (i) the person ceases to be subject to a property order; or

      • (ii) the manager ceases to have power to take part in the proceedings for the person.

    (2) If this rule applies to a party,—

    • (a) any further steps in the proceedings must be taken by the party and not by the party's representative or manager; and

    • (b) the party becomes responsible for all the costs associated with the proceedings (including solicitor and client costs) as if the party had been responsible for the costs when the proceedings began.

    (3) In the case of a person of the kind specified in subclause (1)(c), subclause (2)(a) is subject to section 12(5) of the Domestic Violence Act 1995.

    Compare: SR 1992/109 rr 89, 93, 99

    Subclause (1)(b) was amended, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or enters into a civil union after the word marries.

    Rule 98(1)(d): substituted, on 7 August 2008, by rule 13 of the Family Courts Amendment Rules 2008 (SR 2008/207).

Notices

99 Notices
  • (1) Notices required by a family law Act or by these rules to be given or served must be in writing unless—

    • (a) the Act or these rules provide otherwise; or

    • (b) the Court in a particular case directs otherwise.

    (2) If an application is made for an order or direction relative to the service of an application on a respondent, the Court or Judge or Registrar hearing the application for the order or direction—

    • (a) may require any further information or matter to be stated in the notice to the respondent; and

    • (b) may impose any conditions that seem proper to the Court or Judge or Registrar in the circumstances of the particular case.

    Compare: SR 1981/261 r 12; SR 1992/58 r 10

100 Notices to be given by Registrar
  • Unless an Act or another of these rules requires otherwise, a Registrar who is required to give a person (whether or not a party) a notice may give it,—

    • (a) if a lawyer is acting for that person, by sending it by ordinary post addressed to the lawyer at the lawyer's address for service (if given) or place of business:

    • (b) if there is no lawyer acting for the person, by sending it by ordinary post addressed to that person at that person's address for service (if given) or the person's last known or usual residential or business address in New Zealand:

    • (c) in any other manner the Court directs.

    Compare: SR 1992/109 r 217

Service: documents to be served

101 Documents to be served
  • (1) If no other person is required to do so by an Act or these rules, the Registrar must serve, or cause to be served, without delay, the following documents:

    • (b) any summons issued under a family law Act or these rules:

    • (c) any order or declaration or direction given or made under a family law Act or these rules (for example, an order made on an interlocutory application) (see rule 206):

    • (d) any judgment (as defined in rule 196) given under a family law Act or these rules:

    • (e) any notice required to be served under a family law Act or these rules:

    • (f) any other document required to be served under a family law Act or these rules, or that the Judge directs must be served.

    (2) The Registrar may serve, or cause to be served, any other document he or she considers should be served.

    (3) However, the Registrar is not obliged by subclause (1)(a) to serve or cause to be served any documents issued for service under rule 32(2)(c) in relation to an application under Part IV of the Family Proceedings Act 1980.

    Compare: SR 1981/261 r 39

Service: how documents to be served

102 How documents to be served
  • (1) A document required by a family law Act or these rules to be served on a person in a particular manner must be served on the person in that manner, regardless of rules 105 to 125.

    (2) A document not required by a family law Act or these rules to be served on a person in a particular manner may be served on the person—

    • (b) by service on a lawyer on behalf of the person (see rule 114); or

    • (d) by service on the person in the manner specified in an agreement (see rule 122); or

    • (e) if a representative or manager has been appointed or is acting for the person, by service on the person's representative or manager (see rule 123); or

    • (f) if the person to be served is an incapacitated person, by service in the manner directed by the Court or a Registrar (see rule 124); or

    • (g) by service in a manner and at a place the Court or Registrar directs.

    (3) If all reasonable efforts have been made to serve documents in a manner required or (as the case requires) a manner permitted by these rules, but the documents have not been served in that manner, in certain circumstances the Court or a Registrar may, under rule 126, make an order for substituted service (that is, an order dispensing with, or changing, the service required by these rules).

    Compare: SR 1992/109 rr 214(1)(a)-(c), (2), 237

    Rule 102(2)(f): amended, on 7 August 2008, by rule 14 of the Family Courts Amendment Rules 2008 (SR 2008/207).

103 Service of copies
  • Service of a true copy of a document is taken to be service of the document unless a family law Act or any of these rules expressly requires an original document to be served.

    Compare: SR 1992/109 r 215

Service: on days that are not working days

104 Certain documents must not be served on certain non-working days
  • A document must not be served on a Sunday, Christmas Day, New Year's Day, Good Friday, or Anzac Day unless—

    • (a) it is a witness summons; or

    • (b) it is an interlocutory injunction; or

    • (c) it is an interim order; or

    • (e) it is an order or warrant to prevent the removal of a child or young person from New Zealand (for example, an order made or issued—

      • (i) under section 205 of the Children, Young Persons, and Their Families Act 1989; or

    • (f) service of it is authorised under rule 419(4) (sittings when Court office closed).

    Compare: SR 1992/109 r 234

    Paragraph (e)(ii) was substituted, as from 1 July 2005, by rule 13 Family Courts Amendment Rules 2005 (SR 2005/101).

Service: personal service

105 Certain documents to be served by personal service
  • (1) The following must be served by personal service on the person to be served:

    • (b) a summons issued under any of these rules or a family law Act referred to in paragraph (a).

    (2) This rule does not limit any requirement in any other of these rules or a family law Act that a document be served by personal service on the person to be served.

    Subclause (1)(a)(iii) was substituted, as from 1 July 2005, by rule 14 Family Courts Amendment Rules 2005 (SR 2005/101).

106 Who may carry out personal service
  • (1) A document that must be served personally may be served by—

    • (a) a Registrar or a bailiff:

    • (b) a member of the police, if no bailiff is available or if the Court or Registrar directs:

    • (c) a party's lawyer or an agent of a party's lawyer:

    • (d) a party's agent, delegate for the purpose, or employee:

    • (e) the Commissioner of Inland Revenue or some other person authorised by that Commissioner, if that Commissioner is a party:

    (2) Except where service is effected by a person referred to in subclause (1)(e) or (f), no party or representative of a party may effect personal service, but the party or representative may be present when the service is effected.

    (3) In proceedings under the Protection of Personal and Property Rights Act 1988, personal service by a lawyer employed by a trustee corporation which is a party to the proceedings is not, for the purposes of subclause (2), to be regarded as personal service by that party.

    (4) If a Social Worker or the chief executive (as defined in subclause (5)) is a party to the proceedings, personal service by an employee of the Department (as so defined) is not, for the purposes of subclause (2), to be regarded as personal service by the Social Worker or the chief executive.

    (5) In this subclause and subclause (4),—

    chief executive means the chief executive of the Department

    Department means the Department that is, with the authority of the Prime Minister, for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989.

    Compare: SR 1996/148 r 51

107 Personal service
  • (1) Personal service of a document may be effected by leaving the document with the person to be served or, if that person does not accept it, by putting it down in that person's presence and bringing it to that person's attention.

    (2) In proceedings under the Children, Young Persons, and Their Families Act 1989, personal service of a document may also be effected by leaving it for the person to be served at that person's place of residence with any person—

    • (a) who is normally resident with the person to be served at that place; and

    • (b) who appears to be over the age of 18 years.

    (3) Personal service of a document on a person on whose behalf proceedings have been brought by a representative by virtue of section 11 of the Domestic Violence Act 1995 must be effected by serving the document, in accordance with these rules,—

    • (a) on that person's representative appointed under rule 90(2); or

    • (b) if there is no such representative for the time being, on any adult person with whom the party resides or in whose care he or she is.

    (4) Personal service on a person in relation to whom a representative is appointed under section 12 of the Domestic Violence Act 1995 must be effected by serving the document, in accordance with these rules, on the representative.

    (5) Nothing in subclause (3) or subclause (4) limits rule 123.

    Compare: SR 1989/295 r 37(1)(b); SR 1992/109 r 219; SR 1996/148 rr 56, 57

108 Personal service on spouse or partner
  • (1) If a person and his or her spouse, civil union partner, or de facto partner are both parties to proceedings, personal service on the person is not personal service on the person's spouse, civil union partner, or de facto partner unless the Court so orders on its own initiative or on an interlocutory application for the purpose.

    (2) [Revoked]

    Compare: SR 1992/109 r 231

    The heading to rule 108 was amended, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3) by omitting the words de facto.

    Subclause (1) was amended, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words , civil union partner, after the word spouse in both places where it appears.

    Subclause (2) was revoked, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3).

109 Personal service if person to be served on ship
  • If the person to be served is living or serving on board any vessel (including a vessel belonging to any of Her Majesty's Naval Forces), personal service must be effected by delivering the document to be served to the person on board who, at the time of service, is apparently in charge of the vessel.

    Compare: SR 1992/109 r 220

110 Personal service on serving member of armed forces
  • If the person to be served is in any barracks, camp, or station while serving as a member of any of Her Majesty's Armed Forces, personal service must be effected by delivering the document to be served at the barracks, camp, or station to the Adjutant or to the officer for the time being in command of the unit or detachment to which the person belongs.

    Compare: SR 1992/109 r 221

111 Personal service on prisoner
  • If the person to be served is a prisoner, personal service must be effected by delivering the document to be served to the manager or other officer apparently in charge of the prison in which the person is detained.

    Compare: SR 1992/109 r 222

    Rule 111 was substituted, as from 1 July 2005, by rule 15 Family Courts Amendment Rules 2005 (SR 2005/101).

112 Personal service on minors
  • (1) Personal service on a minor who is not authorised by section 50 of the District Courts Act 1947 (as applied by section 16 of the Family Courts Act 1980) to commence or defend any proceedings may be effected by service in accordance with rule 107(1)

    • (a) on the minor's representative appointed under these rules; or

    • (b) if no representative has been appointed under these rules, on any adult person with whom the minor resides and under whose care the minor is.

    (2) If a minor is or has been married or in a civil union and is not an incapacitated person, service effected in accordance with rule 107(1) on the minor is sufficient service.

    Compare: SR 1992/109 r 228

    Rule 112(2): amended, on 7 August 2008, by rule 15 of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Subclause (2) was amended, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or in a civil union after the word married.

113 Personal service: District Courts Rules 1992 apply
  • The following rules of the District Courts Rules 1992 apply, so far as applicable and with all necessary modifications, in all proceedings in a Court:

    • (a) rule 223 (which relates to personal service on New Zealand corporations):

    • (b) rule 224 (which relates to personal service in New Zealand on foreign corporations):

    • (c) rule 225 (which relates to personal service on unincorporated societies):

    • (d) rule 226 (which relates to personal service on partnerships or apparent partnerships):

    • (e) rule 227 (which relates to personal service on attorneys or agents of persons out of New Zealand).

Service: lawyer may accept service on behalf of person

114 Service on lawyer on behalf of person
  • (1) Service of a document on a person may be effected by service of it on a lawyer who accepts service of it on behalf of the person.

    (2) A lawyer accepts service of a document if the lawyer—

    • (a) notes on a copy of the document that he or she accepts service of it on behalf of the person; and

    • (b) signs the note.

    (3) If a lawyer accepts service of a document on behalf of a person, the document must, unless the contrary is proved, be treated as served on the date the lawyer signed the note.

    Compare: SR 1992/109 r 236

Service: at address for service

115 Service at address for service
  • A document may be served at an address for service by leaving the document at that address between 9 am and 5 pm.

    Compare: SR 1992/109 r 232

116 Address for service on party or other person
  • (1) A party's address for service is,—

    • (a) if the party is the applicant, the address of the party on the information sheet referred to in rule 20(1)(b) (which address must also be stated on any front page required by rule 72); or

    • (b) if the party is not the applicant, the address given by the party under rule 39(2); or

    • (c) the address that the party has changed to under rule 117 (change of address for service); or

    • (d) the address of the party's lawyer, if that address is given by the party as the party's address for service under rule 118 (service by post, document exchange, or fax if address for service is lawyer's office); or

    • (e) the address referred to in rule 121 (address for service if lawyer no longer acting for party), if that rule applies to the party; or

    • (f) the address given by the party under rule 122 (service under agreement); or

    • (g) the address that a Judge or Registrar directs is the party's address for service under subclause (2).

    (2) If a party has no address for service, the Judge or Registrar may direct that a particular address is the party's address for service.

    (3) Any other person who is given or served with a document in the proceedings must give an address for service, in accordance with rule 82, on any front page required by rule 72 to be with the first document filed by, or on behalf of, the person in the proceedings.

117 Change of address for service
  • (1) A party may change that party's address for service by—

    • (a) filing a notice of the change showing the new address for service; and

    • (b) serving a copy of the notice on every other party.

    (2) A change of address for service may be combined with a notice under rule 87(1). A notice of change of address for service need not be filed under subclause (1)(a) if an affidavit is filed under rule 87(4).

    (3) Form G 3 may be used for giving a notice under this rule.

    Compare: SR 1992/109 r 44(5)-(7)

Service: if address for service is lawyer's office

118 Service by post, document exchange, or fax, if address for service is lawyer's office
  • If an address for service given by a party under these rules is the office of a lawyer acting for the party, and the lawyer has a Post Office box number, document exchange box number, or fax number, a document may be served on the party by—

    • (a) posting the document to the Post Office box; or

    • (b) leaving the document at a document exchange for direction to the document exchange box number; or

    • (c) transmitting the document to the fax number.

    Compare: SR 1992/109 r 214(1)(d)

119 When and how documents under rule 118 to be treated as served
  • (1) A document posted under rule 118(a) must, unless the contrary is proved, be treated as having been served on the earlier of—

    • (a) the day on which it was received; and

    • (b) the fifth working day after the day on which it was posted.

    (2) A document left at a document exchange under rule 118(b) must, unless the contrary is proved, be treated as having been served on the earlier of—

    • (a) the day on which it was received; and

    • (b) the second working day after the day on which it was left.

    (3) A document transmitted under rule 118(c)

    • (a) before 5 pm on a day must be treated as having been served on that day unless the contrary is proved:

    • (b) on or after 5 pm on a day must be treated as having been served on the first working day after the day on which it was received unless the contrary is proved.

    (4) A document transmitted under rule 118(c) must be treated as having been received in a complete and legible form unless—

    • (a) the contrary is proved; or

    • (b) the lawyer receiving the document gave in relation to the document the notice required by rule 120(b).

    Compare: SR 1992/109 r 233(1)-(3)

120 Lawyer must acknowledge document faxed
  • A lawyer to whom a document is transmitted under rule 118(c) must, promptly after receiving the document, give the person who served the document—

    • (a) a notice in writing or by fax, acknowledging receipt of the document and confirming the date of service of the document; or

    • (b) if the document was incomplete or illegible or both when it was received, a notice in writing or by fax, stating that the document was incomplete or illegible or both when it was received.

    Compare: SR 1992/109 r 233(4)

121 Address for service if lawyer no longer acting for party
  • (1) This rule applies to a party if the lawyer who acted for the party has obtained a declaration under rule 88 that has taken effect and the party has neither—

    • (a) engaged a new lawyer; nor

    • (b) decided to proceed without a lawyer.

    (2) The party's address for service is the last known address of the party or, if the party is a body corporate, its registered or principal office.

    (3) Subclause (2) does not apply in respect of a document that must be served personally on the party.

    Compare: SR 1992/109 r 44B

Service: in manner specified in agreement

122 Service under agreement
  • (1) Before or after the commencement of the proceedings, a party may agree in writing with 1 or more persons required or permitted to serve a document in the proceedings on the party that the document may be served on the party (or on some other person on the party's behalf) in a manner or at a place (whether or not in New Zealand) specified in the agreement in writing.

    (2) Service in accordance with the agreement is sufficient service on the party.

    Compare: SR 1992/109 r 237

Service: on representatives, managers, and incapacitated persons

  • Heading: amended, on 7 August 2008, by rule 16 of the Family Courts Amendment Rules 2008 (SR 2008/207).

123 Service on representative or manager
  • (1) Service on a party's representative or manager in the manner required or (as the case requires) in a manner permitted by a family law Act or any of these rules is deemed to be service on the party.

    (2) In this rule, representative includes—

    • (a) a person appointed by the Court to represent any person or persons or any class of persons; and

    • (b) a person who, under these rules, sues or defends on behalf of himself or herself and any other person or persons.

    Compare: SR 1992/109 r 235

124 Directions about service on incapacitated persons
  • (1) On an interlocutory application for the purpose, the Court may give directions about service of 1 or more documents on an incapacitated person.

    (2) No direction under subclause (1) may override—

    Rule 124: substituted, on 7 August 2008, by rule 17 of the Family Courts Amendment Rules 2008 (SR 2008/207).

125 Service on party not invalid just because person incapable of taking part in proceedings
  • (1) Service of an application on a party is not invalid just because the party is a person who, under rule 89, may take part in proceedings only through a representative or manager.

    (2) However, no further step may be taken in the proceedings until a representative or manager has been appointed for the person or another order as to the representation of the person has been made.

    Compare: SR 1992/109 rr 88, 95

Service: substituted service

126 Order dispensing with or changing service required
  • (1) A person may, by an interlocutory application, apply for an order for substituted service if—

    • (a) all reasonable efforts have been made to serve a document in a manner required or (as the case requires) in a manner permitted by these rules; and

    • (b) the document has not been served in that manner; and

    • (c) either—

      • (i) prompt service of the document cannot be effected; or

      • (ii) the document has come to the knowledge of the person to be served.

    (2) In response to the application, the Judge may, if satisfied of the matters specified in subclause (1)(a) to (c), make an order in form G 9 for substituted service either—

    • (a) dispensing altogether with the service required; or

    • (b) changing in any way the service required (for example, an order permitting the document to be brought to the attention of the person to be served by advertisement (for example, in form G 10) or by some other means).

    (3) In response to the application, the Registrar may, if satisfied of the matters specified in subclause (1)(a) to (c), make an order of the kind described in subclause (2)(b).

    (4) If an order for substituted service does not dispense altogether with the service required, compliance with the requirements of the order—

    • (a) must be treated as having had the same effect as personal service; and

    • (b) is sufficient compliance with the service required by these rules.

    Compare: SR 1992/109 r 239

Service: proof of service

127 Proof of personal service
  • (1) Proof that a document has been served personally on a person may be given—

    • (a) by oral evidence given on oath before the Court; or

    • (b) by an affidavit of service in form G 8.

    (2) If the person on whom the document was served is personally known to the person who makes the affidavit of service, that affidavit must set out the circumstances that enable the deponent to state the deponent's personal knowledge of the person served.

    (3) If the person served is not personally known to the person who makes the affidavit of service, the identity of the person served—

    • (a) may not be proved by a mere acknowledgment by the person served; but

    • (b) may be proved—

      • (i) by written acknowledgment proved to be in the handwriting of the person served; or

      • (ii) by a satisfactory photograph; or

      • (iii) by any other means to the satisfaction of the Court.

    (4) If a document is served by a Registrar, bailiff, member of the police, or Social Worker, the service may be proved—

    • (a) by stating that the document has been served as well as the date and mode of service—

      • (i) in an endorsement on the original document, or on a copy of it, signed by the person who served the document; or

      • (ii) in a certificate attached to the original document, or on a copy of it, signed by the person who served the document; or

    • (b) in either of the ways referred to in subclause (1).

    (5) If the document being served is a temporary protection order or a final protection order under the Domestic Violence Act 1995, and service is being proved in the manner specified in subclause (1)(b) or subclause (4)(a), the affidavit of service or (as the case requires) endorsement or certificate must also state the time that service took place.

    Compare: SR 1981/261 r 44(2), (3); SR 1992/109 r 218(1)

128 Proof of substituted service effected by advertisement
  • Proof that a document has been served (by substituted service) through publishing an advertisement in 1 or more newspapers may be given by an affidavit in form G 11 that—

    • (a) sets out the name of each newspaper in which the advertisement was published, and the respective dates of publication; and

    • (b) has attached to it, as exhibits, extracts taken from the 1 or more newspapers that include the advertisement.

129 Attaching copy of document to affidavit of service or certificate of service
  • (1) An affidavit of service of a document need not have a copy of the document attached to it as an exhibit if—

    • (a) the original or a copy of the document has, at the time of service, been filed in the Court; and

    • (b) the affidavit contains a description of the document that—

      • (i) enables the document to be identified; and

      • (ii) if the document is dated, includes the date of the document.

    (1A) Despite Rule 127(4)(a)(ii), a certificate of service under that rule need not have a copy of the document attached to it if—

    • (a) the original or a copy of the document has, at the time of service, been filed in the Court; and

    • (b) the certificate of service contains a description of the document that—

      • (i) enables the document to be identified; and

      • (ii) if the document is dated, includes the date of the document.

    (2) The Court may direct a party to attach a copy of a document to an affidavit of service or certificate of service.

    (3) A direction under subclause (2) overrides subclause (1).

    Compare: SR 1992/109 r 218(2)

    Rule 129 heading: amended, on 7 August 2008, by rule 18(1) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 129(1A): inserted, on 7 August 2008, by rule 18(2) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 129(2): amended, on 7 August 2008, by rule 18(3) of the Family Courts Amendment Rules 2008 (SR 2008/207).

Service: on party out of New Zealand

130 District Courts Rules 1992 apply

Translations into Maori

131 Translations into Māori and speaking in Māori
  • Rules 65 to 68B of the District Courts Rules 1992 apply, so far as applicable and with all necessary modifications, to proceedings in a Court.

    Rule 131 heading: substituted, on 7 August 2008, by rule 19(1) of the Family Courts Amendment Rules 2008 (SR 2008/207).

    Rule 131: amended, on 7 August 2008, by rule 19(2) of the Family Courts Amendment Rules 2008 (SR 2008/207).

Changing times by which rules or orders require things to be done

132 Changing times by which things to be done
  • (1) This rule applies only to a time fixed by these rules, or fixed by an order, for—

    • (a) taking a step in the proceedings; or

    • (b) filing a document; or

    • (c) giving or serving a notice; or

    • (d) the doing of an act.

    (2) The time may be reduced or extended by consent of each person or party affected, or by an order made by the Court or Registrar—

    • (a) on an interlocutory application for the purpose; and

    • (b) subject to any terms or conditions the Court or Registrar thinks fit.

    (3) An order extending the time may be made even though the application for the order is made after the time has expired.

    (4) The Court or Registrar may, on an interlocutory application for the purpose, vary an order extending or reducing the time.

    (5) No order extending the time may be made if it appears to the Court or Registrar that the application for the order was made with the main object of delaying the proceedings to the detriment of another or the other party.

    (6) This rule is subject to every Act and each other of these rules.

    Compare: SR 1992/109 r 6; SR 1996/148 r 66

Striking out and adding parties

133 Striking out and adding parties
  • (1) The Court may, on its own initiative or on an interlocutory application for the purpose, at any stage of the proceedings, and on any terms that the Court considers just,—

    • (a) order that the name of a party improperly or mistakenly joined (whether as applicant or as respondent) be struck out:

    • (b) order that the name of a person who ought to have been joined, or whose presence before the Court may be necessary to enable the Court effectually and completely to adjudicate on and settle all questions involved in the proceedings, be added, whether as applicant or as respondent.

    (2) However, nothing in subclause (1)(b) authorises the addition of a person as applicant without that person's consent.

    Compare: 1992/109 r 103

Change of parties by death, etc

134  District Courts Rules 1992 apply
  • Rules 104 to 111 of the District Courts Rules 1992 apply, so far as applicable and with all necessary modifications, to proceedings in a Court.

Consolidation of proceedings

135 When order may be made
  • (1) Subclause (2) applies if 2 or more proceedings are pending and it appears to the Court—

    • (a) that common questions of law or fact arise in both or all of them; or

    • (b) that the rights to relief claimed in both or all of them are in respect of, or arise out of,—

      • (i) the same event; or

      • (ii) the same transaction; or

      • (iii) the same event and the same transaction; or

      • (iv) the same series of events; or

      • (v) the same series of transactions; or

      • (vi) the same series or events and the same series of transactions; or

    • (c) that for some other reason it is desirable to make an order under this rule.

    (2) The Court may order—

    • (a) that both or all of the proceedings be consolidated, on any terms that it thinks just; or

    • (b) that both or all of the proceedings be heard at the same time or one after the other; or

    • (c) that any of the proceedings be stayed until the determination of any other of them.

    Compare: 1992/109 r 384

136 Application of rule 135
  • (1) Rule 135 applies even though—

    • (a) the relief claimed in the proceedings is not the same; or

    • (b) some or all of the proceedings are brought under an Act that confers special jurisdiction on the Court.

    (2) Rule 135 does not limit the following provisions, or any other enactments that empower the Court to hear and determine an application or proceedings before it in conjunction with another application or other proceedings:

    • (a) section 158 of the Children, Young Persons, and Their Families Act 1989:

    Compare: SR 1992/109 r 385

Getting more information and admissions

137 Interrogatories: District Courts Rules 1992 apply
  • (1) The provisions of the District Courts Rules 1992 specified in subclause (2), which relate to interrogatories (that is, questions in writing that one party to proceedings asks another about matters in issue between them in the proceedings), apply, so far as applicable and with all necessary modifications, to proceedings in a Court.

    (2) The provisions of the District Courts Rules 1992 referred to in subclause (1) are rules 300 to 306 and 308 to 312 and form 24.

138 Notice to admit facts
  • (1) A party who has made an application, or filed a notice of intention to appear or a notice of defence, may serve on another party to the proceedings a notice in form G 14 (notice to admit facts) requiring the party on whom the notice is served to admit the facts set out in the notice.

    (2) An admission made in compliance with a notice under this rule—

    • (a) may be amended or withdrawn at any time, if a Court allows and on any terms the Court thinks fit:

    • (b) must not be used against the party who made it in proceedings or an interlocutory application other than the proceedings or an interlocutory application for the purpose of which it was made.

    (3) The cost of proving the facts required by the notice must, unless a Court orders otherwise, be paid by the party on whom the notice was served if that party refuses or neglects to admit the facts set out in the notice—

    • (a) within 7 working days after the date of service; or

    • (b) within a longer time allowed for the purpose by the Court.

    Compare: SR 1992/109 r 313

139 Further particulars
  • (1) A party who requires further particulars before the hearing may give notice to another party requiring that other party, within 10 working days after service of the notice, to file and serve further particulars.

    (2) A notice given under subclause (1) may require only further particulars that are specified in the notice and that are sufficient to ensure that the Court and the party giving the notice are fully and fairly informed of the matters relied on by the party given the notice.

    (3) Whether or not a notice has been given under subclause (1), a Judge may, at any time, order a party to file and serve—

    • (a) a statement of any particulars that may be necessary to ensure that the Judge hearing the proceedings and the parties to the proceedings are fully and fairly informed of the matters relied on by the party who is the subject of the order:

    (4) If the applicant in the proceedings fails to comply with a notice given under subclause (1) or an order made under subclause (3), the Court may order that the proceedings—

    • (a) be dismissed; or

    • (b) be stayed until the order is complied with.

    (5) If the respondent in the proceedings fails to comply with a notice given under subclause (1) or an order made under subclause (3), the Court may order—

    • (a) that the respondent be deemed to have admitted the particulars in the application or notice of defence to which the order for further particular applies; or

    • (b) that the respondent is allowed to defend the proceedings only on any terms the Court thinks fit.

    Compare: SR 1992/58 r 38

Discovery and inspection of documents

140 Order for discovery before proceedings commenced
  • (1) Subclause (2) applies if—

    • (a) a person (the intending applicant) is or may be entitled to claim in the Court relief against another person (the intended respondent); and

    • (b) it is impossible or impracticable for the intending applicant to formulate the intending applicant's application without reference to a document or class of documents; and

    • (c) there are grounds for a belief that the document or 1 or more documents of that class may be or may have been in the possession, custody, or power of a person (whether the intended respondent or not).

    (2) If, on the application of the intending applicant made before any proceedings are brought, the Court is satisfied of the matters stated in subclause (1)(a) to (c), it may order the person referred to in subclause (1)(c) to file and serve on the intending applicant an affidavit stating—

    • (a) whether that document or (as the case requires) a document of that class is or has been in his or her possession, custody, or power; and

    • (b) if it has been, but is no longer, in his or her possession, custody, or power, when he or she parted with it and what has become of it.

    (3) An application under subclause (2) must be made by way of an interlocutory application made on notice—

    • (a) to the person from whom discovery is sought; and

    • (b) to the intended respondent.

    Compare: 1992/109 r 321

141 Order for discovery after proceedings commenced
  • (1) If a notice of defence or a notice of intention to appear has been filed, a party may apply to the Court for an order for discovery of documents—

    • (a) that are, or have been, in the possession of another party to the proceedings; and

    • (b) that relate to a matter in question in the proceedings.

    (2) An application under subclause (1) must be accompanied by an affidavit specifying—

    • (a) the extent of the discovery required; and

    • (b) the reasons for the discovery.

    (3) An order for discovery—

    • (a) must be in form G 15 (order for discovery of documents); and

    • (b) must be served by the applicant on the party to whom it is issued.

    (4) A party against whom an order for discovery has been issued must, within 10 working days after the service of the order or any further time the Court may allow on an interlocutory application for the purpose,—

    • (a) file an affidavit of documents in form G 16 (affidavit of documents); and

    • (b) serve a copy of the affidavit of documents on every other party to the proceeding who has filed an address for service.

    (5) If the proceedings are under the Child Support Act 1991, nothing in this rule limits the application of the secrecy provisions of that Act or the Tax Administration Act 1994.

    Compare: SR 1992/58 r 39

142 Contents of affidavit of documents
  • (1) Unless the Court orders otherwise, an affidavit of documents must—

    • (a) be in form G 16 (affidavit of documents):

    • (b) list, in a convenient sequence, and as briefly as possible, all documents relating to the proceedings that are, or have been, in the possession, custody, or power of the party or person making the affidavit:

    • (c) describe each document, or group of documents of the same nature, to enable the document or group to be identified:

    • (d) distinguish those documents that are in the possession, custody, or power of the party or person making the affidavit from those that have been, but are no longer, in the party's or person's possession, custody, or

    power:

    • (e) state, in respect of each document that is no longer in the party's or person's possession, custody, or power, when the party or person parted with the document and what has become of it:

    • (f) list any other relevant documents the party or person knows exist, and state the name of the person (whether a party or not) in whose possession the party or person believes the documents to be.

    (2) If the party or person making the affidavit claims that a document in the party's or person's possession, custody, or power is privileged from production, the party or person must state clearly in the affidavit the grounds for claiming the privilege.

    Compare: SR 1992/109 r 320

143 Order for particular discovery against non-party after proceedings commenced
  • (1) Subclause (2) applies if it appears to the Court, at any stage of the proceedings (whether from evidence or from the nature or circumstances of the case or from a document filed in the proceedings) that a document or class of documents relating to a matter in question in the proceedings may be, or may have been, in the possession, custody, or power of a person who is not a party to the proceedings.

    (2) The Court may order the person who may have, or may have had, the document or class of documents in that person's possession, custody, or power, to file and serve on every party to the proceedings an affidavit stating—

    • (a) whether that document or class of documents is or has been in that person's possession, custody, or power; and

    • (b) if the person had the document but has now parted with it, when the person did so and what has become of it.

    (3) An application for an order under subclause (2) must be made by way of an interlocutory application, and notice of the application must be given—

    • (a) to the person from whom discovery is sought; and

    • (b) to every other party who has filed an address for service.

    (4) If an order is made under this rule, the Court may also order that the applicant pay to the person from whom discovery is sought that person's expenses (including solicitor and client costs)—

    • (a) arising from, and incidental to, the application; and

    • (b) in complying with any other order made on the application.

    Compare: SR 1992/109 rr 323, 324

144 Incorrect affidavit to be amended
  • (1) This rule applies to a party or person who considers defective or erroneous, because of a change in circumstances or because of an error or omission, an affidavit of documents filed by him or her and served under—

    • (a) an order for discovery before proceedings commenced, under rule 140; or

    • (b) an order for discovery after proceedings commenced, under rule 141; or

    • (c) an order for particular discovery against non-party after proceedings commenced, under rule 143.

    (2) The party or person must immediately file and serve a further affidavit of documents correcting the error or omission.

    Compare: SR 1992/109 r 326

145 Failure to include document
  • If a document should have been, but has not been, included in an affidavit of documents filed by a party, the document may not be produced in evidence at the hearing, except—

    • (a) with the leave of the Court; or

    • (b) with the consent of all parties to the proceedings.

    Compare: SR 1992/109 r 327

146 Notice to produce for inspection
  • (1) A party served with an affidavit of documents may, by notice to the party giving discovery, require that party to produce for inspection a document referred to in the affidavit of documents.

    (2) A party on whom a notice to produce a document is served must, within 4 days after the service of the notice, serve on the party requiring production of the document a notice—

    • (a) stating a time (within 7 days after the service of the notice) at which, and a place at which, the document may be inspected; or

    • (b) claiming the document is privileged from production and clearly stating the grounds for the privilege; or

    • (c) stating that the document is not in the party's possession, custody, or power, and where the document is to the best of the party's knowledge, information, and belief.

    Compare: SR 1992/109 r 328

147 Order for production for inspection
  • (1) This rule applies to a party or person—

    • (a) if it appears to the Court from an affidavit of documents filed by the party that a relevant document is in the possession, custody, or power of the party; or

    • (b) if it appears to the Court from evidence in the proceedings, the nature or circumstances of the case, or any document filed in the proceedings, that a relevant document is in the possession, custody, or power of the party or person.

    (2) The Court may, unless the document is privileged from production, order the person or party—

    • (a) to produce the document for inspection at a time and place specified in the order; or

    • (b) to serve on any person a copy of all or any part of the document with or without an affidavit verifying the copy by a person who has examined the original and the copy of the document.

    (3) Unless a Court orders otherwise, an affidavit required under subclause (2) must state whether there are any erasures from, or additions or alterations to, the document copied and, if so, what they are.

    Compare: SR 1992/109 r 329

148 Costs of production by non-party
  • (1) The Court may order that expenses (including solicitor and client costs) of a kind described in subclause (2) and that were incurred by a person who is not a party to proceedings already commenced be paid by the party to whom the document or copy of the document is produced.

    (2) The expenses are those of, or incidental to,—

    • (a) compliance with a notice (to produce for inspection) under rule 146; or

    • (c) an order (for production for inspection) under rule 147.

    Compare: SR 1992/109 r 330

149 Right to make copies
  • (1) A party to whom a document is produced for inspection under rule 146 or rule 147 may—

    • (a) make copies of the document; or

    • (b) make an interlocutory application to the Court to have the party who has possession, custody, or power of the document produce a legible copy for the applicant.

    (2) An order under subclause (1)(b) may be made on any terms the Court thinks fit and may require—

    • (a) that the applicant pay the reasonable expenses of the other party:

    • (b) that the document be marked to the effect that it is a copy and provided for the purposes of inspection only.

    (3) A party who obtains a copy of a document under this rule—

    • (a) may make use of the copy of the document only for the purpose of the proceedings; and

    • (b) may not make it available to any other person, except as is necessary for the purpose of the proceedings.

    Compare: SR 1992/109 r 331

150 Production of document to Court
  • (1) The Court may, at any stage of the proceedings, order a party or person to produce to the Court a document if it is in the possession, custody, or power of the party or person and relates to a matter in question in the proceedings.

    (2) The Court may deal with a document produced under subclause (1) in any manner the Court thinks fit.

    (3) If the proceedings are under the Child Support Act 1991, this rule is subject to the secrecy provisions of that Act and of the Tax Administration Act 1994.

    Compare: SR 1992/109 r 332

151 Inspection to decide validity of claim or objection
  • (1) If an application is made for an order under rule 147 or rule 150 and a claim that the document is privileged from production, or another objection to production of the document, is made by the person who would be subject to the order, the Court may inspect the document for the purpose of deciding the validity of the claim or objection.

    (2) A person cannot make a claim of privilege on the basis—

    • (a) that a document relates solely to the case of the party claiming privilege; or

    • (b) that the existence or otherwise of a document is a substantial issue in the proceedings.

    Compare: SR 1992/109 r 333

152 Admission of documents discovered
  • (1) If an affidavit of documents is served on a party and the party is permitted to inspect a document specified in the affidavit, the following admissions by the party inspecting the document in favour of the party serving the affidavit must have effect unless the Court orders otherwise:

    • (a) that the document, if described in the affidavit as an original document, is an original document and was printed, written, signed, or executed as it purports to have been:

    • (b) that the document, if described in the affidavit as a copy, is a true copy.

    (2) However, a party must not be treated as having made an admission in relation to a document under subclause (1) if the party—

    • (a) has denied in a document filed in the Court the authenticity of the document; or

    • (b) within 14 days of inspecting the document, serves on the party giving inspection a notice that the party disputes the authenticity of the document.

    (3) If a document listed in an affidavit of documents is shown to be in the possession or power of the party serving the affidavit and that party has not claimed privilege in respect of the document, the party on whom the affidavit was served may give secondary evidence about the document and its contents if the party who served the affidavit does not produce the document on the request of the party on whom the document was served.

    (4) Subclause (3) applies whether or not a notice to produce the document has been served on the party serving the affidavit.

    Compare: SR 1992/109 r 336(1)-(4)

153 Notice to produce documents
  • (1) A party may serve a notice on another party requiring the other party to produce a document or thing—

    • (a) for the purpose of evidence at any hearing in the proceedings; or

    • (b) before a Judge, officer, examiner, or other person authorised to take evidence in the proceedings.

    (2) If the document or thing is in the possession, custody, or power of a party to whom a notice to produce is served, the party must, unless the Court orders otherwise, produce the document or thing in accordance with the notice.

    (3) A notice to produce—

    • (a) must be treated as an order of the Court to produce the document or thing referred to in the notice; and

    • (b) does not need to be accompanied by a summons of production.

    Compare: SR 1992/109 r 337

154 Notice to admit documents
  • (1) A party to proceedings may, by notice served on another party, require the other party to admit, for the purpose of the proceedings, the authenticity of a document specified in the notice.

    (2) If the party on whom the notice is served does not, within 14 days after service, serve, on the party serving the notice to admit documents, a notice disputing the authenticity of a document specified in the notice, the document must, for the purpose of the proceedings, be taken to have been admitted by the party on whom the notice to admit documents is served.

    (3) A party may, with the leave of the Court, withdraw an admission under subclause (2).

    Compare: SR 1992/109 r 338

155 Restricted effect of admission
  • An admission made under rule 152 or rule 154 must not be used against the party making the admission in any other proceedings.

    Compare: SR 1992/109 r 339

Procedure when evidence given by affidavit

156 Use of affidavits
  • (1) An affidavit must be filed before it may be used by any party.

    (2) Once an affidavit is filed, it may be used by any party.

    (3) An affidavit must remain on the file unless the Court gives leave for the affidavit to be removed.

    Compare: SR 1992/109 r 505

157 Person refusing to make affidavit
  • (1) If a person has knowledge of facts relevant to proceedings but refuses on the request of a party to the proceedings to make an affidavit about those facts, the party who requested the affidavit may apply for an order requiring the person to appear and be examined on oath about those facts before the Court or a person appointed by the Court.

    (2) On an application under subclause (1), the Court may—

    • (a) make any orders the Court thinks just—

      • (i) for the attendance of the person for examination; and

      • (ii) for the production of any documents specified in the order; and

    • (b) impose any terms the Court thinks just as to the examination and the costs of, and incidental to, the application and examination.

    (3) A person who disobeys an order made under subclause (2) is liable to proceedings for contempt.

    Compare: SR 1992/109 r 507

158 Form and contents of affidavit
  • (1) Every affidavit—

    • (a) must be expressed in the first person; and

    • (b) must state the full name, occupation, and place of residence, of the person making it (the deponent); and

    • (c) must either—

      • (i) be signed by the deponent; or

      • (ii) if the deponent cannot write, have the deponent's mark set to

      it by the deponent; and

    • (d) must be limited to any matters that would be admissible if the deponent were giving the evidence orally at the hearing; and

    • (e) must, if it is an affidavit in reply, be limited strictly to matters in reply.

    (2) The Court hearing the proceedings—

    • (a) may refuse to read an affidavit that—

      • (i) unnecessarily sets forth any argumentative matter or copies of, or extracts from, documents; or

      • (ii) is an affidavit in reply, but introduces new matter; and

    • (b) may order that the costs incurred in respect of, or occasioned by, an affidavit of a kind described in paragraph (a) be paid by the party filing the affidavit.

    (3) The date on which, and place at which, an affidavit is sworn must be stated in the jurat (that is, in the brief statement at the end of an affidavit of when, where, and before whom, the affidavit was sworn), and the jurat must be signed by the person before whom the affidavit is sworn.

    (4) If an affidavit is 2 or more pages long,—

    • (a) the deponent must initial or make his or her mark on each page preceding the page on which the jurat appears; and

    • (b) the person before whom the affidavit is sworn must initial each page preceding the page on which the jurat appears.

    (5) Nothing in this rule limits rules 63 to 72 so far as they apply to affidavits.

    Compare: SR 1992/109 r 508

159 Exhibits to affidavits
  • (1) An exhibit that accompanies an affidavit—

    • (a) must be marked with an identifying letter or number; and

    • (b) must be annexed to the affidavit if—

      • (i) it is practicable to annex it to the affidavit; and

      • (ii) its pages do not exceed International size A4; and

    • (c) must be identified by a note made on it and signed by the person before whom the affidavit is sworn.

    (2) Exhibits that are not annexed to the affidavit must, subject to subclause (3), be filed with the affidavit but in a separate bundle that—

    • (a) is securely bound; and

    • (b) has a front page, in accordance with rule 72.

    (3) If it is not practicable to comply with subclause (1)(b) or subclause (2), the exhibit must have firmly attached to it a front page, in accordance with rule 72.

    Compare: 1992/109 r 509

160 Affidavit in language other than English
  • (1) An affidavit in a language other than English (non-English-language affidavit) may be filed in a proceeding.

    (2) The non-English-language affidavit must be accompanied by an affidavit by an interpreter, to which is exhibited—

    • (a) a copy of the non-English-language affidavit; and

    • (b) the interpreter's translation of the non-English-language affidavit.

    Rule 160: substituted, on 7 August 2008, by rule 20 of the Family Courts Amendment Rules 2008 (SR 2008/207).

161 Alterations or additions to, or erasure from, affidavit
  • (1) An affidavit that has an alteration or contains additional information written between the lines must not be read or used in proceedings unless—

    • (a) the Court gives leave for it to be read or used in the proceedings; or

    • (b) the alteration or addition is authenticated by the initials of the person before whom the affidavit was sworn.

    (2) An affidavit that contains any information erased by way of crossing or striking out, whiting out, or another means of erasure, must not be read or used in proceedings unless—

    • (a) the Court gives leave for it to be read or used in the proceedings; or

    • (b) the erased information is written in the margin of the affidavit, identified as an erasure forming part of the affidavit, and signed or initialled by the person before whom the affidavit was sworn.

    Compare: SR 1992/109 r 511

162 Irregularity in form of affidavit
  • (1) The Court may receive an affidavit sworn for the purpose of being used in any proceedings despite an irregularity in its form, for example, in its description of the parties in the title.

    (2) On or after receiving an affidavit under subclause (1), the Court may direct that a memorandum be made on the affidavit to the effect that it has been received despite the irregularity.

    (3) Nothing in this rule affects rule 160 or rule 161.

    Compare: SR 1992/109 r 512

163 Service copies of affidavits
  • Every copy of an affidavit for service must—

    • (a) be legible; and

    • (b) if practicable, include a legible copy of all exhibits.

    Compare: SR 1992/109 r 513

164 Affidavit may be sworn on any day
  • An affidavit may be sworn on any day, for example, a Sunday.

    Compare: SR 1992/109 r 514

165 Affidavits made on behalf of corporations
  • A person may make an affidavit on behalf of a corporation or body of persons empowered by law to sue or be sued (whether in the name of the body or in the name of the holder of an office) if the person—

    • (a) knows the relevant facts; and

    • (b) is authorised to make the affidavit.

    Compare: SR 1992/109 r 515

166 Affidavits by 2 or more deponents
  • (1) Every affidavit made by 2 or more deponents must state in the jurat the names of all the deponents.

    (2) However, if the affidavit is sworn by the 2 or more deponents before the same person at the same time, it is sufficient that the affidavit state that it is sworn by both (or all) of the above-named deponents.

    Compare: SR 1992/109 r 516

167 Affidavit by blind, disabled, or illiterate deponent
  • (1) Subclause (2) applies to a person before whom an affidavit is being sworn if it appears to that person that the deponent—

    • (a) is wholly or partly blind; or

    • (b) is unable to read, or has severe difficulty (for example, because of a disability) in reading.

    (2) The person must certify in the jurat—

    • (a) that the affidavit was read and explained by him or her to the deponent; and

    • (b) that the deponent appeared to fully understand the affidavit; and

    • (c) that the deponent wrote his or her signature or made his or her mark on the affidavit in the person's presence.

    Compare: SR 1992/109 r 517

168 Authority to take affidavits
  • Unless an affidavit is sworn before a person who is authorised under section 56 of the District Courts Act 1947 to take it, it must not be read or used in proceedings in a Court.

    Compare: SR 1992/109 r 518

169 Cross-examination of deponent
  • (1) A party who wishes to cross-examine a deponent who has sworn an affidavit for an opposite party may serve a written notice on the opposite party requiring the deponent to attend the hearing for cross-examination.

    (2) The written notice may be by way of a letter to the opposite party's lawyer.

    (3) The party giving the written notice must, no later than the fourth working day before the hearing,—

    • (a) serve it on the opposite party:

    • (b) serve a copy of it on any other party to the proceedings:

    • (c) file a copy of it in the Court.

    (4) If the deponent does not attend the hearing, the deponent's affidavit may not be used as evidence by any party, except by the leave of the Court.

    (5) The party served with the notice may compel the deponent's attendance for cross-examination by a witness summons under rule 50.

    Compare: SR 1992/109 r 506

Other evidentiary matters

170 Pre-hearing rulings on evidence
  • (1) The Court may, at any stage of the proceedings,—

    • (a) make an order determining a question of admissibility of evidence proposed to be tendered at the hearing by a party:

    • (b) if it is proposed that the evidence of a person be admitted at the hearing in the form of a videotape, make an order authorising the tendering of the evidence by that means, and give any directions that it thinks fit relating to the procedure by which the videotaping of that evidence is to be carried out.

    (2) Any order or directions under subclause (1) may be varied or revoked by the Court on its own initiative or on an interlocutory application for the purpose.

    Compare: 1989/295 r 57

171 Evidence by deposition: District Courts Rules 1992 apply
  • (1) Rules 378 to 383 and forms 33 to 37 of the District Courts Rules 1992, which relate to depositions of witnesses (that is, evidence given on oath before a Judge or Registrar, but not at a hearing of proceedings, and recorded in writing) apply, so far as applicable and with all necessary modifications, to proceedings in a Court.

    (2) In applying rule 378 of the District Courts Rules 1992, in accordance with subclause (1), the reference in rule 378(3) to a witness summons under rule 496 of the District Courts Rules 1992 must be read as a reference to a witness summons under rule 50 of these rules.

    (3) The fact that an examination is pending under rule 378 of the District Courts Rules 1992, as applied to proceedings in a Court, does not suspend or prevent the exercise by a Judge or Registrar of a power or jurisdiction that he or she would otherwise possess in respect of the application.

    Compare: SR 1996/148 r 75

172 Taking evidence outside New Zealand: District Courts Rules 1992 apply
  • (1) If, in proceedings under a family law Act, the evidence of a person is to be taken outside New Zealand, that evidence may be taken in accordance with rules 519 to 521 of the District Courts Rules 1992, and those rules apply, so far as applicable and with all necessary modifications, accordingly.

    (2) However, in proceedings under section 145 of the Family Proceedings Act 1980 (which relates to applications for maintenance by applicants residing in Convention countries), subclause (1) is subject to section 150 of that Act.

    Compare: SR 1996/148 r 76

173 Evidence and submissions from Australia by video link or telephone conference: District Courts Rules 1992 apply
  • Rule 500E of the District Courts Rules 1992 applies, so far as applicable and with all necessary modifications, to proceedings in a Court.

Conferences

174 Judge may direct that judicial conference be held
  • (1) To ensure that an application or intended application is determined as fairly, inexpensively, simply, and speedily as is consistent with justice, a Judge may direct that a judicial conference be held, either—

    • (a) on his or her own initiative; or

    • (b) on an interlocutory application for the purpose by a party or intended party.

    (2) The Judge may give a direction under subclause (1) at any time before or during a hearing and on any terms the Judge thinks fit and may require any of the following to attend the conference:

    • (a) the parties or intended parties:

    • (b) the lawyers acting for the parties or intended parties.

    (3) If a direction is given under subclauses (1) and (2)(a), a lawyer acting for a party or intended party may attend the conference in the place of, or with, the party or intended party.

    (4) If a direction is given under subclauses (1) and (2)(b), a party may attend the conference himself or herself if the party has no lawyer acting for the party.

    (5) The Judge presiding over a judicial conference may adjourn a judicial conference at any time and to any place.

    Compare: SR 1996/148 r 71

175 Orders and directions
  • (1) At a judicial conference, the Judge may make any orders and give any directions that the Judge considers—

    • (a) are consistent with the purpose and spirit of the family law Act under which the proceedings arise; and

    • (b) are best adapted to ensure the proceedings are dealt with as fairly, inexpensively, simply, and speedily as is consistent with justice.

    (2) Without limiting the generality of subclause (1), the Judge may do any of the following:

    • (a) settle the issues to be determined at the hearing:

    • (b) direct that a person be joined as a party to the application, or that the name of a party be joined or struck out:

    • (c) direct which parties are to be served:

    • (d) direct a person to file an affidavit or other document within a specified time:

    • (e) require a party to make an admission in respect of a question of fact and, if the party refuses or fails to make an admission of that kind, require that the party (subject to the direction of the Judge hearing the application) bear the costs of proving that question at the hearing:

    • (f) reduce, extend, or fix a time for the filing of a document or the doing of some other thing:

    • (g) require the provision of further or better particulars of any facts or other circumstances connected with the application:

    • (h) require a party to make discovery, produce documents, or both:

    • (i) permit a party to administer interrogatories:

    • (j) with the consent of the parties, make an order for settlement relating to the application that has the same effect as if it were an order made under rule 179:

    • (k) make any order or issue any warrant or summons authorised by a family law Act or these rules:

    • (l) fix a time and place for the hearing of the proceedings:

    • (m) determine which witnesses may give oral evidence in support:

    • (n) if the proceedings relate to or include an application under the Property (Relationships) Act 1976,—

      • (i) appoint a person under section 38(1) of that Act to make an inquiry into the matters of fact in issue between the parties, and to report on them to the Court; or

      • (ii) make an order or issue a warrant or summons authorised by any of rules 397 to 402:

    • (o) give any consequential directions the Judge considers necessary.

    Compare: SR 1996/148 r 72

176 Non-compliance with orders or directions
  • (1) If the applicant fails to comply with an order made, or a direction given, by the Judge under rule 175, the Court may order—

    • (a) that the applicant may take no further step until the order or direction is complied with; or

    • (b) that the proceedings be dismissed.

    (2) If the respondent fails to comply with an order made, or a direction given, by the Judge under rule 175, the Court may order that the respondent be allowed to appear at the hearing and defend the application only on terms that the Court directs.

    (3) A failure by a party to comply with an order made, or a direction given, by a Judge under rule 175 may be taken into account by the Court in making an order as to costs.

    Compare: SR 1996/148 r 73

177 Order or direction at conference may be varied at hearing
  • If the Court hearing an application considers that the interests of justice require the variation or revocation of an order made, or a direction given, under rule 175, the Court may vary or revoke (in whole or in part) the order or direction.

    Compare: SR 1992/109 r 436

178 Settlement conference
  • (1) For the purpose of settling issues in dispute between the parties or intended parties, a Judge may direct that a settlement conference be held, either—

    • (a) on his or her own initiative; or

    • (b) on an interlocutory application for the purpose by a party or intended party.

    (2) The Judge may give a direction under subclause (1) at any time before or during a hearing and on any terms the Judge thinks fit and may require any of the following to attend the conference:

    • (a) the parties or intended parties to the application or intended application:

    • (b) the lawyers acting for the parties or intended parties to the application or intended application.

    (3) The Judge presiding over a settlement conference may adjourn a settlement conference at any time and to any place.

    (4) Except as provided in rule 179(3)(b), no evidence of any of the following is admissible in any court, or before any person acting judicially:

    • (a) any information, statement, or admission disclosed or made to any person in the course of a settlement conference; or

    • (b) any matter arising out of a settlement conference.

    Compare: SR 1992/109 r 438(1)

179 Consent order may be made at settlement conference
  • (1) The Judge presiding over a settlement conference may, with the consent of the parties, make an order settling some or all of the issues in dispute in the proceedings.

    (2) However, a Judge may not make a consent order if a party to the proposed settlement does not have a lawyer acting for the party unless—

    • (a) the settlement conference has been adjourned to give the party a chance to take legal advice; or

    • (b) the party makes an express statement to the effect that he or she does not wish the settlement conference to be adjourned to provide him or her with the chance to take legal advice.

    (3) A consent order made at a settlement conference—

    • (a) has the same effect as if it were made with the consent of the parties in proceedings in a Court; and

    • (b) is the only matter arising out of a settlement conference that is admissible as evidence in a court or before a person acting judicially.

    Compare: SR 1992/109 r 438(2)

180 Change of Judge after judicial conference
  • (1) A Judge who presides over a settlement conference relating to an application must not preside at the hearing of the proceedings unless—

    • (a) all parties taking part in the conference consent; or

    • (b) the only matter for resolution at the hearing is a question of law.

    (2) The Judge must note in his or her record of the conference whether or not he or she may, in accordance with subclause (1), preside at the hearing of the proceedings.

    Compare: SR 1992/109 r 438

    The heading to rule 180 was amended, as from 1 July 2004, by rule 4(1) Family Courts Amendment Rules 2004 (SR 2004/165) by omitting the words or settlement.

    Subclause (1) was amended, as from 1 July 2004, by rule 4(2) Family Courts Amendment Rules 2004 (SR 2004/165) by omitting the words or settlement.

    Subclause (1) was amended, as from 24 December 2004, by rule 3 Family Courts Amendment Rules (No 2) 2004 (SR 2004/468) by substituting the word settlement for the world judicial.

181 Further powers of Judge to ensure proceedings dealt with speedily
  • (1) To ensure proceedings are dealt with speedily, the Court may do any of the following:

    • (a) deal with an application or hold a conference by way of a telephone

    conference link-up, at the expense of 1 or more of the parties:

    • (b) if facilities are available, and subject to a direction as to costs, deal with an application or hold a conference by way of video conference link-up:

    • (c) deal with an application by way of email, fax, or courier post at the expense of 1 or more of the parties:

    • (d) subject to a direction as to costs, make use in the proceedings of video tape, film projection, computers, and other equipment to the extent the Judge considers appropriate:

    • (e) subject to a direction as to costs, make arrangements for the speedy and effective recording of evidence:

    • (f) appoint a person authorised by law to administer an oath to a witness giving evidence in any way envisaged by this rule.

    (2) This rule does not limit rule 173.

    Compare: SR 1989/295 r 28

Interlocutory injunctions

182 Application for interlocutory injunction
  • (1) A party to proceedings may seek an interlocutory injunction by making an interlocutory application before or after the start of the hearing of the proceedings.

    (2) A person who is to be a party to intended proceedings may seek an interlocutory injunction by making an interlocutory application before the intended proceedings are commenced, but only in cases of urgency.

    (3) On an application under subclause (2), the Court may grant the injunction on terms providing for the commencement of the intended proceedings, and any other terms, the Court thinks fit.

    Compare: SR 1992/109 r 258(1), (2)

183 Undertaking as to damages
  • (1) An applicant for an interlocutory injunction must file a signed undertaking that the applicant will abide by any order that the Court may make in respect of damages—

    • (a) that are sustained by the other party through the granting of the interim injunction; and

    • (b) that the Court decides that the applicant ought to pay.

    (2) The undertaking must be referred to in, and forms part of, any order of the Court granting the interlocutory injunction.

    (3) An applicant for an interlocutory injunction is deemed to be bound by an undertaking in those terms, whether or not one has been signed or filed by the applicant and whether or not it has been referred to in the order granting the interim injunction.

    Compare: SR 1992/109 r 258(3)-(5)

184 Interim injunction in relation to party's assets
  • (1) The Court may grant an interlocutory injunction restraining a party to proceedings (whether or not the party is domiciled, resident, or present in New Zealand) from removing from New Zealand, or otherwise dealing with, assets in New Zealand.

    (2) An applicant for an injunction of that kind must, in applying for the injunction, identify each person who is not a party to the proceedings but who would be detrimentally affected if the injunction were granted.

    Compare: SR 1992/109 r 259

Injunctions and receivers

185 Application for order
  • (1) This rule applies to a party who, before the hearing, desires an immediate order—

    • (a) in the nature of an injunction; or

    • (b) to appoint a receiver.

    (2) The party may make an interlocutory application to the Court, which may, on proof of the facts rendering the order immediately necessary, make any order the Court thinks fit.

    Compare: SR 1992/109 r 355

Transfer of proceedings and transfer for hearing

186 Transfer of proceedings
  • A Court or Registrar may order that proceedings in the Court be transferred to another Court if the Court or, as the case requires, the Registrar is satisfied that the proceedings can be more conveniently or fairly dealt with in that other Court.

    Compare: 1996/148 r 78

187 Transfer for hearing
  • A Court or Registrar may order that the hearing of an application filed in the Court be transferred to another Court if the Court or, as the case requires, the Registrar is satisfied that the application can be more conveniently or fairly heard in that other Court.

    Compare: SR 1996/148 r 79

188 Transfers under rule 186 or rule 187
  • (1) A Court or Registrar may order a transfer under rule 186 or rule 187

    • (a) on his or her or its own initiative; or

    • (b) on an interlocutory application for the purpose on not less than 3 working days' notice.

    (2) If a Registrar declines an application to transfer proceedings or a hearing, the applicant may ask the Court to review that decision; and in that case the Court may make any decision on the application the Court thinks fit.

    (3) If an order is made for the transfer of proceedings or a hearing,—

    • (a) the order must be endorsed on the application; and

    • (b) the Registrar must cause notice of the transfer to be given to all parties.

    Compare: SR 1996/148 r 80

189 Procedure on transfer of proceedings
  • (1) If an order is made under rule 186 for the transfer of proceedings,—

    • (a) the Registrar of the Court in which the order is made must—

      • (i) send to the Registrar of the other Court all the documents in his or her custody relating to the proceedings; and

      • (ii) note the records of the Court accordingly; and

    • (b) the Registrar of the Court to which the proceedings are transferred must enter the proceedings in the records of that Court.

    (2) On transfer, the proceedings continue as if they were originally filed in the Court to which they have been transferred.

    Compare: SR 1996/148 r 81

190 Procedure on transfer for hearing
  • (1) If an order is made under rule 187 for the transfer of a hearing,—

    • (a) the Registrar of the Court in which the application is pending must—

      • (i) send to the Registrar of the other Court all the documents in his or her custody relating to the proceedings; and

      • (ii) note the records of the Court accordingly; and

    • (b) the Registrar of the Court in which the proceedings are to be heard must make an appropriate entry in the records of the Court.

    (2) For the purposes of the hearing, the application must be dealt with as if it had been filed in the Court of hearing.

    (3) When the hearing is concluded,—

    • (a) the Registrar of the Court of hearing must return all the documents relating to the proceedings, including every order that has been made in those proceedings, to the Registrar of the Court from which the documents were sent; and

    • (b) the Registrar to whom the documents are returned must—

      • (i) record every order made in the proceedings in the records of the Court; and

      • (ii) take the steps required by rule 206 to serve a copy of every order on the parties.

    Compare: SR 1996/148 r 82

191 Transfer of proceedings to High Court
  • Rule 189 applies with all necessary modifications to the transfer of proceedings to the High Court under a family law Act or section 14 of the Family Courts Act 1980.

    Compare: SR 1996/148 r 81(3)

Adjournment of hearing

192 Adjournment of hearing
  • The Court or the Registrar may, before or at the hearing, if it appears expedient in the interests of justice to do so, postpone or adjourn the hearing for a time, to a place, and on any other terms (for example, as to the application concerned being entered on the Registrar's list (as defined in rule 8)), the Court or Registrar thinks fit.

    Compare: SR 1992/109 r 484

Striking out pleading

193 Striking out pleading
  • (1) The Court may order that all or part of an application or defence or other pleading be struck out if the pleading or part of it—

    • (a) discloses no reasonable basis for the application or defence or other pleading; or

    • (b) is likely to cause prejudice, embarrassment, or delay in the proceedings; or

    • (c) is otherwise an abuse of the Court's process.

    (2) An order under subclause (1) may be made by the Court—

    • (a) on its own initiative or on an interlocutory application for the purpose:

    • (b) at any stage of the proceedings:

    • (c) on any terms it thinks fit.

    Compare: SR 1992/109 r 209

Stay or dismissal

194 Stay or dismissal
  • The Court may order that proceedings be stayed or dismissed, either generally or in relation to a particular application by which an order or declaration is sought, if the Court considers, in relation to the proceedings or to the application, that—

    • (a) there is no reasonable basis for the proceedings or application; or

    • (b) the proceedings are frivolous or vexatious; or

    • (c) the proceedings are an abuse of the Court's process.

    Compare: SR 1992/109 r 481

195 Dismissal if proceedings or defence not prosecuted
  • (1) An opposite party may apply to have dismissed—

    • (a) all or part of an applicant's proceedings, if the applicant has failed to prosecute the proceedings or part of them:

    • (b) all or part of a respondent's defence, if the respondent has failed to prosecute the defence or part of it.

    (2) On an application under subclause (1), the Court may make any order it considers just.

    Compare: SR 1992/109 r 482

Judgments and orders

196 Judgment and reasons for judgment defined
  • In these rules, unless the context otherwise requires,—

    judgment includes—

    • (a) a declaration or order of the Court; and

    • (b) an order of the Court or Registrar on an interlocutory application

    reasons for judgment means—

    • (a) the written reasons given by the Judge for his or her decision; or

    • (b) if the Judge gives reasons orally, a proper report, approved by the Judge, of the oral statement made by him or her of the reasons for his or her decision.

    Compare: SR 1992/109 r 529

197 Time and mode of giving judgment
  • (1) A Judge may give a judgment orally or in writing.

    (2) Except in the case of a judgment on an application without notice, a Judge may give a judgment orally only if the affected parties or their lawyers have been given a reasonable opportunity to—

    • (a) be present when the judgment is given; or

    • (b) hear the Judge give the judgment, for example, by telephone, telephone conference call, or video link.

    (3) A judgment is given orally when the Judge pronounces it, with or without reasons.

    (4) A written judgment is given when the judgment—

    • (a) is signed by the Judge (or by the Registrar, in accordance with rule 12(4)); and

    • (b) bears a date and time that purport to be the date on which and the time at which the Judge (or Registrar) signed the judgment.

    (5) The date and time referred to in subclause (4)(b) are deemed to be the date on which and the time at which the judgment is given.

    (6) A judgment, whether given orally or in writing, may be recalled by the Judge at any time before a formal record of it has been drawn up and sealed.

    Compare: SR 1992/109 r 530

198 Judgments to be sealed and dated
  • (1) Every judgment must be drawn up in a form approved by the Registrar, who must seal it with the seal of the Court.

    (2) A judgment may be sealed—

    • (a) in accordance with a direction given by the Judge relating to the sealing of the judgment; or

    • (b) if no direction is given, at any time after the judgment has been given.

    (3) A sealed judgment must state—

    • (a) the date on which, under rule 197(3) or (4), the judgment is given; and

    • (b) the date on which it is sealed.

    Compare: SR 1992/109 rr 36, 290(3), (4), 531

199 When drawing up of order unnecessary
  • Unless the Court directs otherwise, it is not necessary under rule 198 to draw up or seal the following orders:

    • (a) an order dismissing an interlocutory application, whether or not costs on it are allowed to any party:

    • (b) an order made (other than one made on an application without notice) that extends the time for commencing proceedings, or that extends or reduces the time for taking a step or filing a document in proceedings:

    • (c) an order fixing a time for the substantive hearing of an application or the hearing of proceedings, or adjourning any hearing:

    • (d) an order giving leave to commence proceedings:

    • (e) an order giving directions for the service of any documents relating to an application, unless service is directed to be effected on the representative of a person (for example, by a direction under rule 124):

    • (f) an order amending or granting leave to amend a document filed in a proceeding, or granting leave to file any document:

    • (g) an order authorising the omitting or waiving of an act by the Registrar or another officer of the Court except a lawyer; but in each case of that kind a minute of the order must be made on the notice of application (if any) or other appropriate document and signed by the Judge making the order or by the Registrar.

    Compare: SR 1992/109 r 291

200 Duplicate judgments
  • Duplicates of a judgment, with the word duplicate marked on the front of their first page, may be issued to a party.

    Compare: SR 1992/109 r 532

201 When judgment takes effect
  • (1) Subject to section 79(5) of the District Courts Act 1947, a judgment takes effect when it is given.

    (2) However, no step may be taken on a judgment before it has been sealed.

    Compare: SR 1992/109 r 533(1), (2)

202 Time for doing act to be stated
  • Every judgment requiring a person to do an act, other than the payment of money or costs, must state the time within which the act is to be done.

    Compare: SR 1992/109 r 534

203 If deed directed to be prepared
  • (1) A judgment that directs a deed to be prepared and executed may state—

    • (a) which party is to prepare the deed:

    • (b) at whose expense the deed is to be prepared:

    • (c) to whom the deed is to be submitted for approval.

    (2) If the parties cannot agree on the form of the deed, then, on an interlocutory application on notice for the purpose, the Court may settle the deed itself.

    Compare: SR 1992/109 r 535

204 Clerical mistakes and slips
  • (1) This rule applies to a judgment—

    • (a) that contains a clerical mistake or an error arising from an accidental slip or omission, whether or not the mistake, error, slip, or omission was made by an officer of the Court; or

    • (b) that is drawn up in a way that does not express what was actually decided and intended.

    (2) The judgment may be corrected by the Court or, if the judgment was made by a Registrar, by the Registrar.

    (3) The correction may be made by the Court or the Registrar, as the case requires, on his or her or its own initiative or on an interlocutory application for the purpose.

    Compare: SR 1992/109 r 12

205 Death, etc, of Judge before judgment
  • (1) If a Judge who has signed a judgment or reasons for judgment dies or retires or becomes otherwise incapable before the judgment is given or the reasons are delivered, another Judge or the Registrar may give that judgment or deliver those reasons.

    (2) If subclause (1) does not apply and a Judge dies or retires or otherwise becomes incapable of giving judgment, the proceedings or issue must be reheard.

    Compare: SR 1992/109 r 539

206 Service of judgments
  • (1) The Registrar must, as soon as practicable after a judgment (for example, an interim or temporary or interlocutory order, or an order issued by the Registrar under rule 318) is given, take all reasonable steps to serve a copy of the judgment on the parties.

    (2) In proceedings under the Child Support Act 1991, Care of Children Act 2004, or Family Proceedings Act 1980,—

    • (a) if a lawyer is acting for a party, service of a copy of the judgment on that party's lawyer must be treated as service on that party; or

    • (b) if a party has no lawyer acting for that party, service may be effected by sending a copy of the judgment—

      • (i) by registered letter addressed to that party at the address for service (if given); or

      • (ii) if no address for service has been given and the party resides in New Zealand, by registered letter addressed to that party at that party's last known or usual place of residence or business in New Zealand; or

      • (iii) if no address for service has been given and the party resides overseas, by letter sent by airmail and addressed to that party at that party's last known or usual place of residence or business overseas.

    (3) If service of a judgment is under subclause (2) to be effected by registered letter, the judgment must be served by an officer of the Court unless a Judge or the Registrar, because he or she thinks fit, requires the judgment to be served by a bailiff or member of the police.

    (4) In proceedings under any other family law Act, the judgment must be served by personal service of the judgment on the parties in the manner specified in rule 107(1), however, if for any reason service of the judgment on a party cannot be effected in that manner, service must instead be effected—

    • (a) if a lawyer is acting for that party, by service of a copy of the judgment on the lawyer; or

    • (b) if no lawyer is acting for that party, by sending a copy of the judgment by ordinary post addressed to that party at his or her or its address for service (if given), or otherwise to that person's last known or usual place of abode or business in New Zealand, and rule 119(1) applies accordingly with all necessary modifications; or

    • (c) by substituted service (under an order under rule 126).

    (5) In proceedings under the Domestic Violence Act 1995, this rule is subject to—

    • (a) rule 326 (certain documents to be served with temporary protection orders and temporary property orders); and

    • (b) rule 327 (extension of period for service).

    (6) In proceedings under the Family Proceedings Act 1980, this rule is subject to rule 360 (sealing and service of order dissolving marriage or civil union: order made by Judge in defended proceedings).

    Compare: SR 1981/261 r 45; SR 1988/213 r 36; SR 1989/295 r 45; SR 1992/58 r 35(1)-(3); SR 1996/148 r 53(1), (4), (5)

    Subclause (2) was amended, as from 1 July 2005, by rule 17 Family Courts Amendment Rules 2005 (SR 2005/101) by substituting the expression Care of Children Act 2004 for the expression Guardianship Act 1968.

    Subclause (6) was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

Costs

207 District Courts Rules 1992 apply
  • The following rules of the District Courts Rules 1992 apply, so far as applicable and with all necessary modifications, to proceedings in a Court:

    • (a) rule 45, except subclause (2)(c) (Court's overriding discretion, etc):

    • (b) rule 54 (enforcement of order for costs):

    • (c) rules 55 to 60 (taxation of costs inter partes, that is, the ascertainment or fixing by the Registrar of the amount of any costs or disbursements or the head under which costs should be allowed):

Investment of funds in Court, property, and payment into Court

208  District Courts Rules 1992 apply

Rehearings

209 Application for rehearing
  • (1) A party may apply for a rehearing of all or any part of an application on the grounds that there has been a miscarriage of justice in the proceedings.

    (2) However, nothing in this rule or in rules 210 to 213 affects, or applies to the extent that it is inconsistent with, the following:

    • (a) section 204 of the Children, Young Persons, and Their Families Act 1989:

    (3) An application under subclause (1) must be filed in the proper Court (see rule 28(1)) within 28 days after the date on which judgment was delivered on the application or (as the case requires) part of the application.

    (4) The application must state the circumstances that the applicant alleges resulted in a miscarriage of justice in the proceedings.

    (5) On the filing of the application, the Court may order that the application operate as a stay of proceedings until the application is finally determined and, if the application is granted, until the rehearing is finally determined.

    (6) If an order under subclause (5) is not made, then the application does not operate as a stay of proceedings.

    Compare: SR 1992/109 r 494(1), (3)

210 Court may order rehearing
  • (1) On an application for a rehearing of an application, the Court may order a rehearing of all or any part of the application if (and only if) it considers that there has been a miscarriage of justice in the proceedings.

    (2) Examples of a miscarriage of justice include—

    • (a) unfair or improper practices by a successful party to the prejudice of another party:

    • (b) the discovery since the hearing of material evidence that could not reasonably have been known or foreseen before or during the hearing:

    • (c) misconduct by a witness that affects the outcome of the hearing.

    Compare: SR 1992/109 r 493(1), (3)

211 Evidence by affidavit on application for rehearing
  • (1) On an application for a rehearing, the Court must not receive—

    • (a) an affidavit from a witness that explains or adds to oral evidence that he or she gave at the hearing; or

    • (b) an affidavit of any facts that might have been given in evidence at the hearing.

    (2) Subclause (1) does not prevent the Court receiving an affidavit from a material witness to the effect that the witness made a serious mistake in giving his or her oral evidence at the hearing.

    (3) On an application for a rehearing, the Court must not consider circumstances that do not relate to a miscarriage of justice in the proceedings.

    Compare: SR 1992/109 r 494(2), (4), (5)

212 Order for rehearing
  • (1) The Court may order a rehearing on any terms it thinks fit.

    (2) The Court may order a rehearing on any 1 or more questions in the proceedings, whatever the grounds on which the rehearing was applied for, without interfering with the judgment on any other questions.

    (3) The Court may order a rehearing against any 1 or more parties to the proceedings.

    (4) If the Court considers that the miscarriage of justice affects only part of a matter in dispute in the proceedings, it may—

    • (a) make an order (other than an order for a rehearing) as to the part not so affected; and

    • (b) order a rehearing as to the affected part only.

    (5) Subclauses (2) to (4) do not limit subclause (1).

    Compare: SR 1992/109 r 493(2), (4)-(6)

213 Procedure for rehearing
  • (1) If the Court orders a rehearing of all or any part of an application,—

    • (a) a Court must rehear the proceedings; and

    • (b) the Court or the Registrar must fix a time and place for the rehearing.

    (2) The Registrar must give every party notice of the time and place fixed for the rehearing.

    (3) Rules 53 to 58 apply to a rehearing of all or any part of an application as if the rehearing were the hearing of an application.

Contempt

214 District Courts Rules 1992 apply
  • Rule 674 and forms 114 and 115 of the District Courts Rules 1992 (which relate to contempt) apply, so far as applicable and with all necessary modifications, to proceedings in a Court.

Part 4
Interlocutory matters

Overview of Part

215 Overview of this Part
  • (1) This Part sets out procedures for dealing with interlocutory matters (that is, matters that arise in the course of proceedings).

    (2) It should be read with references, in other Parts of these rules, to things being sought by, or done on, an interlocutory application.

    (3) The application of this Part to proceedings is modified by any rules in Part 5 that apply to the proceedings (Part 5 contains rules that modify this Part).

    (4) Among other things, this Part deals with the following matters relating to interlocutory applications:

    • (a) using consent memoranda instead of them:

    • (b) which of them may be made without notice:

    • (c) who is to hear and determine them:

    • (d) what form they must be in:

    • (e) evidence on them:

    • (f) where they must be filed:

    • (g) how they are determined:

    • (h) enforcement of orders made on them.

    (5) This rule is only a guide to the general scheme and effect of this Part.

Interpretation

216 Interpretation
  • In this Part, unless the context otherwise requires,—

    application means an interlocutory application (as defined in rule 8)

    making an order on an application includes giving a direction on the application

    order, in relation to an application, includes a direction sought by, or given on, the application

    proceedings includes intended proceedings.

Consent memoranda instead of interlocutory applications

217 Consent memoranda instead of applications
  • (1) A party who, under these rules, may or must make an application for an order on a matter of procedure may, instead of filing the application, file a consent memorandum.

    (2) A consent memorandum must be signed by all parties and persons to be affected by the order sought (or by their respective lawyers or representatives), and must signify their consent to the making of that order and any terms and conditions on which that consent is given.

    (3) On the filing of a consent memorandum, the Registrar must—

    • (a) make and seal an order in terms of the memorandum; or

    • (b) refer the memorandum to a Judge.

    (4) If the Registrar refers the memorandum to a Judge, the memorandum must be treated as if it were a filed and served application on notice for the order.

    Compare: SR 1992/109 r 10

Interlocutory applications on notice or without notice

218 Applications generally to be made on notice
  • An application must be made on notice unless rule 220(1) or (2) applies.

219 Who must be served with copy of application on notice
  • (1) A copy of an application under a family law Act or under any of these rules must, unless a Registrar or Judge directs otherwise on another application for the purpose, be served on each person who is or will be a party to, or interested in, or likely to be affected by, the proceedings.

    (2) However, Part 5 contains special rules as to who must be served with a copy of certain applications under certain family law Acts, including certain applications under the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949 (see rule 382 - order for directions as to service or for representation).

220 Applications that may be made without notice
  • (1) An application need not be made on notice if the family law Act or District Courts Rule under which it is made provides, or any other of these rules provide, that the application, or an application of that kind, may be made without notice.

    (2) An application need not be made on notice if subclause (1) does not apply and the application, or an application of that kind, is not expressly required to be made on notice by the family law Act or District Courts Rule under which it is made or by any other of these rules, and the Court is satisfied that—

    • (a) the delay that would be caused by making the application on notice would or might entail,—

      • (i) in proceedings under the Children, Young Persons, and Their Families Act 1989, serious injury or undue hardship, or risk to the personal safety of the child or young person who is the subject of the proceedings, or any person with whom that child or young person is residing, or both; and

      • (iii) in proceedings under the Domestic Violence Act 1995, a risk of harm or undue hardship to the applicant, or any child of the applicant's family, or both; and

      • (v) in any other proceedings, undue delay or serious detriment to the applicant; or

    • (b) the application affects the applicant only or is in respect of a routine matter or is about a matter that does not affect the interests of any other person; or

    • (c) every person in respect of whom the order is sought has either died or cannot be found.

    Subclause (2)(a)(ii) was amended, as from 1 July 2005, by rule 18 Family Courts Amendment Rules 2005 (SR 2005/101) by substituting the expression Care of Children Act 2004 for the expression Guardianship Act 1968.

Who interlocutory applications to be heard and determined by

221 Applications to be heard and determined by Registrars
  • (1) Except as provided otherwise in an Act or in any other provision of these rules, the jurisdiction of a Judge to hear and determine any application may be exercised by a Registrar.

    (2) If the Registrar has power to hear and determine an application, the application must be made to the Registrar in the first instance.

    (3) Subclause (2) does not apply if a Judge, on another application for the purpose, orders that the application be made to a Judge.

222 Applications to be heard and determined by Judges
  • An application must be made to a Judge if—

    • (a) an Act or any of these rules requires that it be heard and determined only by a Judge; or

    • (b) a Registrar is not authorised by an Act or by any of these rules to hear and determine it.

Form of interlocutory applications

223 Form of applications
  • (1) An application made on notice must be in form G 20.

    (2) An application made without notice must be in form G 21 unless, on a request by, or on behalf of, the applicant, the Judge or Registrar permits the application to be made in another form (for example, orally at a hearing).

    Compare: SR 1992/109 r 257

Evidence on interlocutory applications

224 Evidence on applications
  • No affidavit need be filed with an application in the first instance, but the Judge or Registrar may direct evidence to be given in any manner the Judge or Registrar thinks fit.

    Compare: SR 1996/148 r 64(1)(d)

Where to file interlocutory applications

225 Where to file applications
  • (1) An application to be made in writing in any proceedings must be filed in the Court in which the proceedings were commenced (together with the number of copies of it (if any) that are required for service).

    (2) However, if the proceedings have been transferred to another Court (under rule 186) or transferred for hearing to another Court (under rule 187), then the application (and the number of copies of it (if any) that are required for service) must be filed in that other Court.

    Compare: SR 1996/148 r 27(3)

226 How to file documents in Court
  • An application must be filed in accordance with rules 75 and 76.

227 Registrar may transfer for hearing to another Court application accepted for filing
  • (1) If an application is presented and accepted for filing in a Court and the Registrar is satisfied that, because of the absence or unavailability of Judges at the Court, the application can be more speedily heard and determined at another Court, the Registrar may, on his or her own initiative or a request by any party to the application, order that the application be transferred for hearing to that other Court.

    (2) Rule 190 (procedure on transfer for hearing) applies to an application transferred under subclause (1).

Procedure for interlocutory applications without notice

228 Procedure if applications without notice accepted for filing
  • (1) If an application made without notice is presented and accepted for filing in a Court, the Judge or, as the case requires, the Registrar must,—

    • (a) if he or she considers that no appearance by the applicant is required, make any order on the application he or she thinks fit or dismiss the application; or

    • (b) if he or she considers that an appearance by the applicant is required, fix a date and time for the hearing of the application and inform the applicant of the date and time fixed for the hearing, under rule 234, of the application.

    (2) Promptly after an application is disposed of under subclause (1)(a), the Registrar must give notice of the result to all parties to the proceedings (or to their lawyers).

Procedure for interlocutory applications on notice

229 Procedure if applications on notice accepted for filing
  • (1) If an application made on notice is presented and accepted for filing in a Court, the Registrar must either—

    • (a) immediately fix a date and time for the hearing of the application; or

    • (b) enter the application on the Registrar's list (as defined in rule 8), so that the proceedings are regularly monitored, and managed and progressed either—

      • (i) to resolution without a hearing; or

      • (ii) to a point where the Registrar thinks fit to fix a date and time for the hearing of the application, and does so under this subparagraph.

    (2) Promptly after a date and time is fixed for the hearing of an application, under subclause (1)(a) or (b)(ii), the Registrar must—

    • (a) note the date and time fixed on the copies of the application filed for service; and

    • (b) issue for service (that is, make ready and complete for delivery to each person who may oppose, or be interested in, or likely to be affected by, the application) the copies of the application filed for service.

    (3) Unless the Court or the Registrar orders otherwise, the application must be served on each person who may oppose, or be interested in, or likely to be affected by, it, no later than the fourth working day before the date fixed for the hearing of the application.

230 Notice of opposition to application on notice
  • A party served with notice of an application and who intends to oppose it must, no later than 1 pm on the last working day before the date fixed for the hearing of the application, file in the Court and serve on the applicant and every other person served with the application, a notice of opposition that—

    • (a) states the party's intention to oppose the application and the grounds of opposition on which the party relies; and

    • (b) refers to any statutory provision, regulation, rule, or principle of law, on which the party relies.

231 Where appearance at hearing of application on notice not required
  • (1) Unless a Court directs otherwise, an appearance by a party to an application is not required at any hearing of the application if—

    • (a) the party, on being served with the application,—

      • (i) consents in writing to the application; and

      • (ii) files that consent in writing in the Court; or

    • (b) all parties file in the Court—

      • (i) written submissions on the application; and

      • (ii) a request in writing to be excused from an appearance.

    (2) The consent or request in writing may be informal, but must be signed by the party giving or filing it (or that party's lawyer).

    Compare: SR 1992/109 r 280(1), (2)

232 Procedure if no appearance required at hearing of application on notice
  • (1) An application on notice in respect of which no appearance is required may be disposed of at any time, even though the date and time fixed for the hearing of the application may not have arrived.

    (2) Promptly after the application has been disposed of, the Registrar must give notice of the result to the applicant (or his or her lawyer) and to the following parties (or their lawyers):

    • (a) each party who filed in the Court a consent in writing to the application (see rule 231(1)(a)):

    • (b) each party who filed in the Court submissions on the application and a request in writing to be excused from an appearance (see rule 231(1)(b)).

    Compare: SR 1992/109 r 280(3)

Hearing of interlocutory applications

233 Hearing in Court or in Chambers
  • An application may be heard either in Court or in Chambers.

    Compare: SR 1996/148 r 64(1)(a)

234 Hearing of applications
  • (1) In addition to all other powers given to the Registrar by these rules, the Registrar has the jurisdiction and powers of the Court in Chambers to adjourn a hearing of an application, reserving to the Court the costs of or arising out of the adjournment.

    (2) If, at the hearing of an application, an appearance by the applicant is required but he or she fails to appear, the Court or Registrar may strike out the application, adjourn it, or deal with it in any other way the Court or Registrar thinks fit.

    (3) An application struck out under subclause (2) may be reinstated by the Court on any terms the Court thinks fit.

    (4) If, at the hearing of an application, an appearance by a respondent is required but the respondent fails to appear, the Court or Registrar may dispose of the application in the absence of the respondent, adjourn it, or deal with it in any other way the Court or Registrar thinks fit.

    (5) Without limiting the generality of subclause (2) or subclause (4), the hearing of an application may be adjourned from time to time on any terms (for example, as to the application being entered on the Registrar's list (as defined in rule 8)) the Court or Registrar thinks fit.

    (6) On hearing an application, the Court or Registrar may make any order the Court or Registrar thinks fit.

    (7) Rules 196 to 206 apply in respect of judgments and orders.

    Compare: SR 1992/109 rr 283, 284, 293(b)

235 Registrar may refer application to Judge
  • A Registrar to whom an application is made and who is in doubt as to the proper order to be made on the application may refer it to a Judge immediately or at the next convenient opportunity, and the Judge may hear and determine the application and make any orders the Judge thinks fit.

    Compare: SR 1996/148 r 64(1)(g)

Registrar's order on interlocutory application may be varied or rescinded

236 Judge may vary or rescind order made by Registrar
  • (1) This rule applies to a party if a Registrar has made an order on an application, and the party is dissatisfied with the order.

    (2) The party may, by another application that must be made on notice, ask a Judge (who need not be a Judge before whom other applications in the proceedings are pending) to vary or rescind the order.

    (3) On hearing the other application, the Judge may vary or rescind the order.

Enforcement of orders made on interlocutory applications

237 Enforcement of orders
  • (1) If a party to proceedings defaults in complying with an interlocutory order (that is, an order made on an application),—

    • (a) if the party in default is the applicant in the proceedings, a Court may order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the applicant in the proceedings:

    • (b) if the party in default is a respondent in the proceedings, a Court may order that the party's defence be struck out:

    • (c) subject to section 79 of the District Courts Act 1947, a Court may order that the party in default be committed.

    (2) The Court may make an order under subclause (1) on its own initiative or on another application for the purpose.

    (3) This rule is subject to any express provision to the contrary in any of these rules.

    Compare: SR 1992/109 r 299(1)

Costs of interlocutory applications

238 Costs
  • The costs of an application—

    • (a) are in the discretion of the Court; and

    • (b) if allowed, are costs in the proceedings unless the Court or Registrar orders otherwise.

    Compare: SR 1996/148 r 64(1)(h)

Part 5
Special rules for proceedings under certain family law Acts

239 Overview of this Part

Adoption Act 1955

240 Interpretation
  • In rules 241 to 253, unless the context otherwise requires,—

    Act means the Adoption Act 1955

    applicants, in relation to an application for an adoption order, includes a sole applicant for the order.

241 Forms
  • (1) The forms set out in Schedule 2 must be used in proceedings under the Act.

    (2) Subclause (1) is subject to rule 246(2).

242 Applicants to identify child to be adopted but not named in application for adoption order
  • If an application for an adoption order in respect of a child does not include the child's name (for example, because the child has not yet been named), the applicants must, at or before the hearing of the application, provide evidence of the child's identity (for example, evidence that the child is the one of a particular sex born to a certain woman on a certain date).

    Compare: SR 1959/109 r 6

243 Social Worker to ask police about character of applicants before furnishing report
  • A Social Worker required under section 10(1) of the Act to furnish a report on an application for an adoption order—

    • (a) must, before furnishing the report, ask the New Zealand Police whether anything is known to them about the character of the applicants; and

    • (b) must make known to the Court the results of that inquiry.

    Compare: SR 1959/109 r 7

244 Affidavit to be filed with, or before hearing of, application for adoption order
  • Applicants for an adoption order must file with the documents to be filed to make their application (see rule 20(1)(c)), or file in the Court before the hearing, an affidavit that—

    • (a) states their ages:

    • (b) gives information about their state of health:

    • (c) gives particulars of their financial circumstances:

    • (d) states the sex, age, and state of health of any child of the applicants or of either applicant:

    • (e) gives their reasons for wanting to adopt the child:

    • (f) states the period (if any) during which the child has been living in the home of the applicants or of either applicant:

    • (g) states that no payment or reward in consideration of the adoption or of the making of arrangements for the adoption has been or will be made to or by the applicants or to or by either of them, or (to their knowledge) to or by any other person, other than—

      • (i) a payment or reward for which the Court's consent has been given; or

      • (ii) a payment or reward for which the Court's consent is being asked; or

    • (h) contains a statement or undertaking (as the case requires) in relation to any religious condition imposed by any parent or guardian under section 7(4) or (6) of the Act:

    • (i) if either applicant is a parent of the child, states that fact:

    • (j) states whether the applicants or either of them has ever before applied for, but been refused, an adoption order.

    Compare: SR 1959/109 r 8(1)

245 Other documents to be filed with, or before hearing of, application for adoption order
  • (1) Applicants for an adoption order must file with the documents required to be filed to make their application (see rule 20(1)(d)), or file in the Court before the hearing,—

    • (a) a certified copy of the birth certificate of the child proposed to be adopted, which must be—

      • (i) annexed to the consent to the adoption given by either parent of the child (if any); or

      • (ii) verified by the affidavit of some person who has knowledge of the facts to which the certificate relates; and

    • (b) if there are 2 applicants, a certified copy of their marriage or civil union certificate.

    (2) However, the Court may, if it thinks fit (either on its own initiative or on an interlocutory application for the purpose) excuse the applicants from complying with some or all of the requirements of subclause (1)(a) or (b).

    Compare: SR 1959/109 rr 8(2), 13(2)

    Subclause (1)(b) was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

246 Form of consent to adoption
  • (1) Every consent to the adoption of a child given by a parent or guardian of the child must be in form A 4 (consent to adoption order) or form A 5 (consent to adoption order [ if identity of applicants is not known ]).

    (2) However, a consent to the adoption of a child given by the chief executive, under section 7(4) or (5) of the Act, need not be in form A 4 or form A 5.

    Compare: SR 1959/109 r 9(1)

247 If applicants' identity not disclosed, Social Worker to give evidence that consent to adoption relates to applicants
  • If a person's consent to an adoption order in respect of a child is in form A 5 (consent to adoption order [ if identity of applicants is not known ]) and does not give the file number of the application for the order, evidence identifying the applicants for the order as the people to whose adoption of the child the person consented must be furnished at or before the hearing of the application.

    Compare: SR 1959/109 r 9(1)

248 Lawyers for applicants for adoption order not to witness consents to adoption order required by Act
  • No lawyer acting for applicants for an adoption order may witness any consent to the adoption order required by the Act.

    Compare: SR 1959/109 r 9(2)

249 Attendance of parties at hearing
  • The applicants and the child proposed to be adopted must attend personally at any hearing of an application for an adoption order or for the issue of an adoption order unless the Court directs otherwise on its own initiative or on an interlocutory application for the purpose.

    Compare: SR 1959/109 r 10

250 Registrar to give notice of making of interim order
  • If, on an application for an adoption order, the Court makes an interim order in favour of the applicants, then, promptly after the making of the order, the Registrar must—

    • (a) send the applicants a notice of the making of the order in form A 6 (notice of interim order); and

    • (b) give the Social Worker a written notice setting out the particulars of the order.

    Compare: SR 1959/109 r 11

251 Form of application for issue of adoption order
  • An application for the issue of an adoption order must be in form A 7 (application for issue of adoption order after interim order has been made).

    Compare: SR 1959/109 r 12

252 Adoption order
  • (1) If an adoption order is issued or made, then, promptly after the issue or making of the order, the Registrar must send notice in form A 8 of the issue or making of the order to—

    • (a) the applicants or the lawyer acting for them:

    • (b) the Social Worker.

    (2) An adoption order in form A 9 (adoption order [ if issued by Registrar ]) or form A 10 (adoption order [ if dealt with finally by the Court ]) must be drawn up and filed in the Court, but no copy of an adoption order may issue out of the Court except—

    • (a) by order of the Court made on special grounds; or

    • (b) by order of the High Court made on special grounds.

    Compare: SR 1959/109 r 13

253 Directions as to service of application for variation or discharge of adoption order
  • An application for the variation or discharge of an adoption order must be served on the people (if any) the Court directs on its own initiative or on an interlocutory application for the purpose.

    Compare: SR 1959/109 r 14

Child Support Act 1991

254 Interpretation
  • In rules 255 to 273, unless the context otherwise requires,—

    applicant includes an appellant

    application includes a notice of appeal

    Commissioner means the Commissioner of Inland Revenue.

255 Forms
  • The forms in Schedule 3 must be used in proceedings under the Act.

256 Applications without notice
  • (1) The following applications may be made without notice:

    • (a) an application for a suspension order under section 117(5) of the Act:

    • (b) an application for an order under section 120(2) of the Act dispensing with security for an appeal to the High Court against an order or declaration of a Court under the Act:

    • (c) an application for a charging order under section 184 of the Act:

    • (d) an application for a receiving order under section 187 of the Act:

    • (e) an application for a warrant of arrest of a liable person under section 199 of the Act:

    • (f) an application for an order restraining the disposition of any property under section 200 of the Act.

    (2) An application may also be made without notice if that is authorised under section 224 of the Act (which relates to proceedings where the respondent is absent from New Zealand or cannot be found).

    (3) Nothing in subclause (1) or subclause (2) prevents other applications being made without notice, if that is authorised by the Act or another of these rules.

    (4) If an order is made against a person on an application without notice, under rule 24(2) or subclause (1) or subclause (2), the person may apply under rule 34(c) to vary or rescind the order.

    Compare: SR 1992/58 r 16(1)

257 Affidavits in support to be filed to make certain applications without notice
  • Applicants under the Act who make an application without notice under rule 24(2)(b) or rule 256(1) (except paragraph (e)) must file with the other documents to be filed to make the application (see rule 20(1)(c)) an affidavit made by the applicant or some other person deposing to the matters on which the application is based.

    Compare: SR 1992/58 r 16(5)

258 Affidavits in support to be filed to make certain applications on notice
  • Applicants under the Act who make an application on notice (except an application for an urgent maintenance order under section 116 of the Act) must file with the other documents to be filed to make the application (see rule 20(1)(c)) an affidavit made by the applicant or some other person deposing to the matters on which the application is based.

    Compare: SR 1992/58 r 13(1)

259 Affidavit required by rule 258 to have exhibits if application is notice of appeal under certain sections of Act
  • If the application is a notice of appeal under section 100 or section 101 or section 102 or section 103 of the Act, the affidavit required by rule 258 must exhibit—

    • (a) a copy of the appellant's notice of objection to the Commissioner; and

    • (b) a copy of the Commissioner's notice of disallowance.

    Compare: SR 1992/58 r 13(2)

260 Affidavit of financial means and their sources to be filed to make application under section 116 of Act
  • Applicants for an urgent maintenance order must file with the other documents to be filed to make the application (see rule 20(1)(c)) an affidavit in form CS 28 (affidavit of financial means and their sources).

    Compare: SR 1992/58 r 19

261 Filing of application if Commissioner is party to proceedings
  • If the Commissioner is the applicant or respondent in proceedings under the Act, the application must be filed in the Court nearest to where the other party resides.

    Compare: SR 1992/58 r 18(2)

262 Copy of documents filed to make application to be sent to Commissioner in certain cases
  • (1) As soon as practicable after accepting for filing documents of a kind specified in subclause (2), the Registrar must send a copy of those documents to the Commissioner.

    (2) The documents are those required to be filed to make an application under the following sections of the Act:

    • (a) section 99 (declarations in respect of step-parents):

    • (b) section 104 (application for departure from formula assessment in special circumstances):

    • (c) section 108 (application for order for provision of child support in form of lump sum):

    • (d) section 112 (discharge, suspension, revival, and variation of orders):

    Rule 262(2)(aa): inserted, on 7 August 2008, by rule 21 of the Family Courts Amendment Rules 2008 (SR 2008/207).

263 Notice by advertisement by order under section 224 of Act
  • (1) If the Court makes an order under section 224 of the Act to bring the proceedings to the knowledge of the person to be served by advertisement, the advertisement must be in form G 10 (which applies with all necessary modifications).

    (2) In a case of that kind, the names of the newspapers in which the advertisement is published and the respective dates of publication must be shown in an affidavit in form G 11 (which applies with all necessary modifications).

    (3) The affidavit must be filed in proof of the due publication of the advertisement, and extracts showing those advertisements and taken from those newspapers must be attached to the affidavit as exhibits.

    Compare: SR 1992/58 r 33(3)

264 Notice of defence
  • A person served with documents relating to an application under the Act may, within the time specified in or under rule 41, file in Court and serve on the applicant, under rule 40, a notice of defence to the application.

    Compare: SR 1992/58 r 22

265 Affidavit to accompany notice of defence
  • (1) A notice of defence must be accompanied by an affidavit made by the person filing and serving the notice of defence or by some other person.

    (2) An affidavit of the kind referred to in subclause (1) must—

    • (a) dispose of the matters raised in the affidavit filed to make the application; and

    • (b) refer to matters on which the defence is based; and

    • (c) be served with the notice of defence.

    Compare: SR 1992/58 r 23

266 Further information to be filed and served before hearing
  • (1) All parties to proceedings under the Act (other than the Commissioner) must, at least 10 working days before the hearing of the application,—

    • (a) file in the Court an affidavit in form CS 28 (affidavit of financial means and their sources); and

    • (b) serve a copy of the affidavit on all other parties.

    (2) A liable person who is a party to the proceedings must, at least 10 working days before the hearing of the application, file in the Court, and serve on all other parties to the proceedings, the latest notice of assessment given by the Commissioner to the liable person.

267 Fixing date and time for hearing
  • (1) Unless a Judge in a particular case orders otherwise, no date and time may be fixed for the hearing of an application under the Act before the time for filing a notice of defence, specified in or under rule 41, has expired.

    (2) The Registrar must fix a date and time for the hearing of an application under the Act if subclause (1) does not prevent that and there is filed in the Court an application for a fixture for the hearing in form G 17 signed by, or on behalf of, all parties to the proceedings.

    (3) However, the Registrar may fix a date and time for the hearing,—

    • (a) even though the application for a fixture is signed by 1 party alone, if the Registrar is satisfied that—

      • (i) the persons who have not signed the application have refused to do so; and

      • (ii) none of those persons has, in the circumstances, a reasonable reason for refusing to sign the application; or

    • (b) even though no application for a fixture for the hearing has been filed, if the Registrar is satisfied that the time for filing the notice of defence has expired.

    (4) A Registrar who fixes a date and time under subclause (3)(a) must note on the application that the Registrar has done so.

    (5) The Registrar must give notice of the date and time of the hearing to—

    • (a) the applicant; and

    • (b) the respondent, if the respondent has filed an address for service or has been served with the proceedings; and

    • (c) any person who has intervened in the proceedings under section 125 of the Act.

    (6) All parties must give the Registrar, without delay, all available information affecting any estimated length of the hearing.

    Compare: SR 1992/58 r 25

268 Respondent added as party
  • (1) If a party is added as a respondent to proceedings under the Act, under rule 133(1)(b), the Court may adjourn the hearing for a period and on any terms that the Court considers appropriate to enable the party added to be served with—

    • (a) a notice in form CS 25 (notice of application to respondent); and

    • (b) a copy of the documents issued for service in relation to the application concerned.

    (2) However, service of the documents referred to in subclause (1) may be dispensed with if—

    • (a) the adding of the party takes place at a hearing and the party being added as a respondent is present at the hearing; and

    • (b) the Court is satisfied that the party added will not be prejudiced.

    Compare: SR 1992/58 r 45

269 Procedure on intervention
  • A person who wishes, under section 125 of the Act, to intervene in, and contest and argue any question arising in, proceedings under the Act to which he or she is not otherwise a party must—

    • (a) file a notice of intervention in form CS 27 (notice of intervention); and

    • (b) serve a copy of the notice on every party to the proceedings.

    Compare: SR 1992/58 r 44

270 Order of priority of distress warrants
  • (1) A Registrar must note on a request for the issue of a distress warrant the precise time of the request.

    (2) If a distress warrant is issued, the Registrar must endorse the warrant with the precise time of the request.

    (3) If more than 1 distress warrant is issued against the same person, the warrants must be executed in order of the times of the making of the requests noted under subclause (1).

    (4) A warrant issued under section 183 of the Act must rank in order of priority with a distress warrant issued under the District Courts Rules 1992.

    Compare: SR 1981/261 r 83; SR 1992/58 r 55

271 Bond by receiver
  • A person appointed under section 187 of the Act as a receiver of property to which a respondent is entitled must, before acting as receiver, give security for the due administration of the receivership to the Registrar's satisfaction unless the person is—

    • (a) Public Trust (as defined in section 4 of the Public Trust Act 2001); or

    • (b) the Maori Trustee; or

    • (c) a trustee company as defined in section 2 of the Trustee Companies Act 1967.

    Compare: SR 1981/261 r 85; SR 1992/58 r 58

272 Procedure on arrest of respondent other than in respect of offence
  • (1) This rule—

    • (a) applies if a respondent is arrested and brought before the Court on a warrant issued other than in respect of an offence; and

    (2) The Court before which the respondent is brought may adjourn the hearing to another time and place and—

    • (a) allow the respondent to go at large; or

    • (b) subject to any conditions the Court thinks proper in the circumstances, grant the respondent bail—

      • (i) on the respondent's own recognisance; or

      • (ii) with a number of sureties that the Court thinks fit, and for an amount that the Court thinks proper in the circumstances; or

    • (c) if the Court considers that the attendance of the respondent at the hearing is necessary in the interests of justice but also considers that the respondent is unlikely to appear at the hearing, or may attempt to leave New Zealand with intent to defeat the course of justice, remand the respondent in custody for—

      • (i) a period of not longer than 8 days; or

      • (ii) a period longer than 8 days, but only if the respondent consents to that period.

    (3) The Court may extend the period of an adjournment, bail, or remand under subclause (2) until the proceedings in respect of which the warrant was issued are finished.

    (4) A Judge may issue a warrant to arrest a respondent and bring the respondent before the Court if—

    • (a) the respondent was allowed to go at large but failed to attend at the time and place to which the hearing had been adjourned; or

    • (b) the respondent was released on bail but—

      • (i) failed to attend personally at the time and place specified in the bond; or

      • (ii) failed to comply with any condition fixed in the bond.

    (5) Section 38 of the Bail Act 2000 applies as far as applicable and with all necessary modifications to a respondent released on bail who fails to comply with the bond issued.

    Compare: SR 1981/261 r 74; SR 1992/58 r 57

273 Commissioner to receive copy of order made under Act
  • Where the Court makes an order under the Act, the Registrar or other responsible officer of the Court must, within 14 days after the day on which the order is made, send a certified or sealed copy of the order to the Commissioner in accordance with section 126 of the Act.

    Compare: SR 1992/58 r 35(4)

Children, Young Persons, and Their Families Act 1989

274 Interpretation
  • In this rule and rules 275 to 303, unless the context otherwise requires,—

    chief executive means the chief executive of the Department

    Department means the Department that is, with the authority of the Prime Minister, for the time being responsible for the administration of the Act.

275 Forms
  • The forms set out in Schedule 4 must be used in proceedings under the Act.

276 Applications without notice
  • (1) The following applications may be made without notice:

    • (a) an application for the issue of a summons under section 85 of the Act:

    • (b) an application for a restraining order under section 87 of the Act (including an application made under section 88 of the Act for an interim order under section 87 of the Act, made pending the determination of an application for a declaration under section 67 of the Act), but only if the Court is satisfied that the delay that would be caused by proceeding on notice would or might entail—

      • (i) serious injury or undue hardship; or

      • (ii) risk to the personal safety of the child or young person who is the subject of the proceedings or any person with whom that child or young person is residing:

    • (c) an application for an order, or the issue of a warrant, or both, under section 205 of the Act.

    (2) Nothing in subclause (1) prevents other applications being made without notice, if that is authorised by the Act or another of these rules.

    (3) If an order is made against a person on an application without notice, under rule 24(2) or subclause (1), the person may apply under rule 34(c) to vary or rescind the order.

    Compare: SR 1989/295 rr 54(2)-(6), 55A(1), (2)

277 Filing of applications
  • Every application under the Act must be filed in the Court nearest by the most practicable route to the place where the child or young person in respect of whom the application is made resides.

    Compare: SR 1989/295 r 17(1)

278 Procedure if restraining order made without notice
  • (1) If a restraining order is made on an application without notice, the Court must fix a date (which must be as soon as reasonably practicable after the making of the order) for a hearing on whether or not the order should be confirmed.

    (2) The copy of the order served on the person whose conduct is restrained by it must notify that person that, unless he or she attends on the date fixed to show cause why the order should not be confirmed, the Court may confirm the order.

    (3) The order ceases to have effect on the close of the date fixed unless—

    • (a) it is sooner discharged; or

    • (b) the Court, on that date, confirms the order (whether with or without variation).

    (4) At the hearing on whether or not the restraining order should be confirmed, the Court may—

    • (a) discharge the order; or

    • (b) confirm the order; or

    • (c) confirm the order but vary the conduct restrained by it; or

    • (d) adjourn the hearing to another time and place; or

    • (e) enlarge the date and time for the hearing if, despite reasonable efforts to do so, the order has not been served on the person whose conduct is restrained by it.

    (5) If the Court adjourns a hearing to another day under subclause (4)(d), the Court must, at the adjourned hearing, exercise 1 only of the powers stated in subclause (4)(a) to (c).

    (6) In this rule, date fixed means whichever is the latest of the following dates:

    • (a) the date fixed by the Court under subclause (1):

    • (b) a date to which the hearing is adjourned under subclause (4)(d):

    • (c) a date to which the date for the hearing is enlarged under subclause (4)(e).

    Compare: SR 1989/295 rr 55A(3), 55B

279 Application under section 67 of Act to be accompanied by documents on family group conference
  • (1) For every application for a declaration under section 67 of the Act, the documents required to be filed to make the application (see rule 20(1)(d)) include—

    • (a) a duly completed certificate in form CYPF 3 (certificate as to holding of family group conference), certifying that a family group conference has been held; and

    • (b) if a family group conference has been held in relation to the matter that forms the ground on which the application is made, a copy of the written record made under section 29(3) of the Act in relation to that conference.

    (2) However, subclause (1) does not apply if, under section 70(2)(a) or (b) or (ba) of the Act, the application may be made without a family group conference having been held.

    Compare: SR 1989/295 r 15(1), (2)

280 Service of application under section 44 of Act
  • (1) An application made to the Court under section 44 of the Act in respect of a child or young person must be served on—

    • (a) the principal manager of the Department for—

      • (i) the area in which the child or young person resided immediately before being placed in the custody of the chief executive; or

      • (ii) the area in which the child or young person is residing at the time of the application; and

    • (b) if the child or young person has been placed in a residence established under section 364 of the Act, the manager of that residence.

    (2) Subclause (1)(b) does not apply if the applicant is not informed, in writing, before the application is made, that the child or young person has been placed in the residence.

    (3) Every application to which this rule applies must be served a reasonable time before the hearing of the application.

    (4) Service of an application to which this rule applies must be effected—

    • (a) by personal service; or

    • (b) by leaving it with a person who indicates that he or she is authorised to accept service of the application on behalf of the person to be served.

    Compare: SR 1989/295 r 35

281 Who must be served with or given copy of certain other applications under Act
  • (1) Sections 152 and 153 and 155 of the Act affect who must be served with or given a copy of an application for a declaration under section 67 of the Act.

    (2) Sections 154 and 155 of the Act affect who must be served with a copy of an application for variation or discharge of an order under section 125 of the Act.

    (3) Section 207L of the Act affects who must be served with an application by the chief executive for the transfer of a protection order under section 207K of the Act.

    (4) Section 207R of the Act affects who must be served with an application by the chief executive for the transfer of protection proceedings under section 207Q of the Act.

    (5) Section 207ZE of the Act affects who must be served with an application under section 207ZD of the Act (that is, an application to have revoked the registration of an order under section 207X of the Act).

282 Service on chief executive
  • If the chief executive is a party to proceedings under the Act, a document required to be served on the chief executive in the proceedings must be served—

    • (a) by delivering the document to the principal manager of the Department for the area in which the child or young person who is the subject of the proceedings resides; or

    • (b) by leaving the document with an employee of the Department who indicates that he or she is authorised to accept service on behalf of the chief executive.

    Compare: SR 1989/295 r 39

283 Service on Social Worker or member of police
  • (1) If a person to be served with a document in proceedings under the Act is a party to the proceedings in his or her capacity as a Social Worker, it is sufficient service to deliver the document to be served to any Social Worker.

    (2) If a person to be served with a document in proceedings under the Act is a party to the proceedings in his or her capacity as a member of the police, it is sufficient service to deliver the document to be served to any member of the police.

    Compare: SR 1989/295 r 40

284 Directions as to service
  • (1) The applicant may, and must on the direction of a Registrar, make an interlocutory application without notice to the Court for a direction that a person who is not a party be served, if an application is required by the Act or these rules to be served—

    • (a) on a person specified by the Court; or

    • (b) on a person the Court directs.

    (2) However, only in the circumstances stated in subclause (3) may a Registrar direct that an application be made under subclause (1) in respect of an application—

    • (a) for a declaration under section 67 of the Act; or

    (3) The circumstances are that it appears from the application for a declaration under section 67 or the application under section 125 of the Act, and any documents filed with it, or from any other documents held by the Court, that a person who is not a party to the proceedings has an interest in the proceedings and should be served.

    (4) An application under subclause (1) must state the reasons why the person specified in the application should be served.

    (5) If the Court is satisfied that the person specified in the application should be served, it must direct accordingly.

    (6) This rule, so far as applicable and with all necessary modifications, applies in respect of every application notice of which is required by the Act or these rules to be given—

    • (a) to any person specified by the Court; or

    • (b) to such person or persons as the Court directs.

    Compare: SR 1989/295 r 41

285 Notice of application under section 371 or section 377 of Act
  • (1) In this rule, application means an application under section 371 or section 377 of the Act.

    (2) Notice of the application must be accompanied by a copy of it, and the copy must have written on it the time and place of the hearing.

    (3) Written notice of the application required to be given to a person must be given—

    • (a) by personally delivering it to that person, or by bringing it to his or her attention if he or she refuses to accept it, at least 24 hours before the time of hearing; or

    • (b) by posting it in a letter addressed to that person at that person's last known or usual place of residence, at least 48 hours before the time of hearing.

    (4) If written notice of the application is given to a person in accordance with subclause (3)(b), the applicant must also, where practicable, cause that person to be notified, by telephone, of the time and place of the hearing.

    Compare: SR 1989/295 rr 69(3)(b), 70

286 Notice of application under section 380 of Act
  • (1) In this rule, application means an application under section 380 of the Act.

    (2) Notice of the application must be accompanied by a copy of the documents required to be filed to make the application, which must have written on them the time and place of the hearing.

    (3) Written notice of the application required to be given to a person must be given at least 24 hours before the time of hearing and,—

    • (a) if the person is the manager of the residence in which the child or young person to whom the application relates is detained in secure care, by personally delivering it to that manager or to another person who indicates that he or she is authorised to accept the notice on behalf of that manager:

    • (b) if the person is any other person, by personally delivering it to him or her, or by bringing it to his or her attention if he or she refuses to accept it.

    Compare: SR 1989/295 rr 69(3)(b), 71

287 Proof of giving of notice of application under section 371 or section 377 or section 380 of Act
  • (1) If notice is given of an application under section 371 or section 377 of the Act, that notice may be proved by showing the fact and the date and mode of the giving of the notice in a certificate attached to the application or a copy of it.

    (2) The certificate must be signed by the manager of the residence in which the child or young person to whom the application relates is detained in secure care or by a Social Worker acting on the manager's behalf.

    (3) It is not necessary to prove that notice of an application under section 380 of the Act has been given to the manager of the residence in which the child or young person to whom the application relates is detained in secure care if that manager or any Social Worker employed in that residence appears, either personally or by a lawyer, at the hearing of the application.

    (4) If it is necessary to prove the giving of notice of an application under section 380 of the Act, it must be proved by affidavit.

    Compare: SR 1989/295 r 72

288 Procedure if notice of certain applications under Act not given within time prescribed
  • If a person is given notice of an application under section 371 or section 377 or section 380 of the Act, but not within the time prescribed by rule 285 or rule 286, the Court may—

    • (a) hear the application, if the Court is satisfied that the person is not prejudiced by that failure; or

    • (b) adjourn the hearing until a time and on any terms the Court thinks fit.

    Compare: SR 1989/295 r 73

289 Documents filed on family group conference
  • If a family group conference was held in respect of a child or young person who is the subject of proceedings in a Court under the Act, the following documents must be filed in the Court (see rule 20(1)(d)):

    • (a) a duly completed certificate in form CYPF 3, certifying that the family group conference has been held; and

    • (b) a copy of the written record made under section 29(3) of the Act in relation to the conference.

    Compare: SR 1989/295 r 15(3)

290 Notice of appointment of lawyer or lay advocate
  • If, in proceedings under the Act, the Court makes an appointment under section 159 or section 160 or section 163 of the Act, the Registrar must give notice of the appointment to—

    • (a) the appointee; and

    • (b) every party to the proceedings; and

    • (c) if the appointment is under section 160 of the Act,—

      • (i) the lawyer representing the child or young person who is the subject of the proceedings; and

      • (ii) any lay advocate appointed to appear in support of that child or young person in the proceedings.

    Compare: SR 1989/295 r 22

291 Notice of intention to appear
  • (1) A party to proceedings under the Act may file in Court and serve, under rule 40, a notice of intention to appear and be heard in relation to the application, but, if the party does so, the party must also serve the notice on the lawyer representing the child or young person to whom the application relates.

    (2) For the purposes of rule 41(a), the period within which the party must serve a notice of intention to appear is 7 days after receiving service of the application.

    Compare: SR 1989/295 r 20(1)

292 Mediation conference
  • (1) A request to the Registrar, under section 170(1) of the Act, for a mediation conference may be made—

    • (a) by a Judge, at any stage of the proceedings; and

    • (b) by a person referred to in section 170(1)(a) to (d) of the Act, at any time before the hearing of the proceedings has commenced.

    (2) The request may be made orally or in writing but, if made orally, must be confirmed in writing as soon as possible.

    Compare: SR 1989/295 r 23

293 Change of Judge after mediation conference
  • A Judge who presides over a mediation conference relating to an application under the Act and decides that he or she should not hear any later proceedings relating to the application must make a note to that effect in his or her record of the mediation conference.

    Compare: SR 1989/295 r 24

294 Judicial conference: how convened
  • (1) The Registrar must arrange for a judicial conference to be convened if—

    • (a) an application is made to the Court—

      • (i) for a declaration under section 67 of the Act; or

    • (b) the Registrar is satisfied that—

      • (i) all persons on whom a copy of the application is required to be served have been so served; and

      • (ii) if service of the application on any person has been dispensed with, the terms and conditions (if any) imposed by the Court in respect of that dispensation have been observed or complied with; and

      • (iii) the time within which the parties may file a notice of intention to appear has expired, or all the parties have filed such a notice.

    (2) The Court may direct that a judicial conference be convened at any stage of proceedings under the Act, either on its own initiative or on a request by—

    • (a) a party to the proceedings; or

    • (b) the lawyer representing the child or young person who is the subject of the proceedings; or

    • (c) the lay advocate appointed to appear in support of that child or young person.

    (3) The Registrar must give notice of the time and place for the holding of the judicial conference to—

    • (a) the parties to the proceedings; and

    • (b) the lawyer representing the child or young person who is the subject of the proceedings; and

    • (c) any lay advocate appointed to appear in support of that child or young person in the proceedings.

    Compare: SR 1989/295 r 26(1), (2), (4)

295 Judicial conference: nature and purpose
  • (1) Every judicial conference is presided over by a Judge, and every person who is entitled to be present at the hearing of an application under the Act is entitled to be present at, and to participate in, the judicial conference.

    (2) The purpose of a judicial conference is as follows:

    • (a) if the conference is convened under rule 294(1) in respect of an application for a declaration under section 67 of the Act, to consider—

      • (i) whether a direction should be made under section 74 of the Act; and

      • (iii) whether an order of that kind, or any condition of an order of that kind, should be varied, suspended, cancelled, or discharged:

    • (b) to consider whether a mediation conference should be convened under section 170(1) of the Act:

    • (c) if the application has not been set down for hearing, to fix a date and time for the hearing of the application:

    • (d) to consider whether the Court should make another order that it is empowered, by the Act or these rules, to make pending the determination of the application.

    (3) At a judicial conference, the presiding Judge may—

    • (a) make a direction under section 74 of the Act:

    • (b) make an order the Court is empowered to make under section 78 or section 88 or section 92 of the Act pending the determination of the application:

    • (c) make an order the Court is empowered to make under section 127 of the Act in respect of an order, or any condition of an order, made under any of those sections:

    • (d) ask the Registrar to convene a mediation conference under section 170 of the Act:

    • (e) fix a date and time for the hearing of the application:

    • (f) make any other order or orders the Court is empowered, by the Act or these rules, to make pending the determination of the application.

    Compare: SR 1989/295 r 26(3), (5), (6)

296 Fixing date and time for hearing
  • (1) Unless a Judge in a particular case orders otherwise, no date and time may be fixed for the hearing of an application under the Act—

    • (a) before a request for the convening of a mediation conference in respect of the application has been disposed of; or

    • (b) before the time for filing a notice of intention to appear (as specified in or under rule 41(b) or rule 291(2)) has expired.

    (2) However, subclause (1)(a) is subject to section 200 of the Act (which requires a Court to ensure that an application for a declaration that a child or young person is in need of care or protection is dealt with promptly), and rule 295.

    (3) The Registrar must fix a date and time for the hearing of an application under the Act if subclause (1) does not prevent that and there is filed in the Court an application for a fixture for the hearing in form G 17 signed by, or on behalf of,—

    • (a) the applicant; and

    • (b) the lawyer representing the child or young person in respect of whom the application is made; and

    • (c) every person (if any) who has filed a notice of intention to appear.

    (4) However, the Registrar may fix a date and time for the hearing even though the application for a fixture is not signed by all of the persons specified in subclause (3) if the Registrar is satisfied—

    • (a) that the persons who have not signed the application have refused to do so; and

    • (b) that none of those persons has, in the circumstances, a reasonable reason for refusing to sign the application.

    (5) A Registrar who fixes a date and time under subclause (4) must note on the application that the Registrar has done so.

    (6) The Registrar must give notice of the date and time of the hearing to the parties and to the lawyer representing the child or young person in respect of whom the application is made.

    (7) All parties must give the Registrar, without delay, all available information affecting any estimated length of the hearing.

    Compare: SR 1989/295 r 27

297 Pre-hearing disclosure of evidence
  • (1) Before a hearing of an application under the Act, the Court may order a party to the proceedings to file in the Court a statement outlining, in reasonable detail, all or part of the evidence proposed to be tendered at the hearing by the party.

    (2) An order under subclause (1) may be made on any other conditions the Court thinks fit, but must always require the party against whom it is made to serve the statement on—

    • (a) the other parties; and

    • (b) the lawyer representing the child or young person who is the subject of the proceedings; and

    • (c) any lay advocate appointed to appear in support of that child or young person in the proceedings.

    (3) If the proceedings are for a declaration under section 67 of the Act, an order under subclause (1) may not be made against a party in those proceedings other than the applicant unless, in the circumstances of the case, the interests of justice require.

    (4) If a party fails to comply with an order under subclause (1),—

    • (a) if the party is the applicant, the Court may order that the proceedings be dismissed or stayed until the order is complied with:

    • (b) if the party is not the applicant, the Court may order that the party be allowed to appear at the hearing only on terms specified by the Court.

    (5) Nothing in this rule applies to proceedings for a declaration under section 67 of the Act on the ground specified in section 14(1)(e) of the Act.

    Compare: SR 1989/295 r 56

298 Proof of service of applications
  • (1) An application under the Act (not being an interlocutory application) may not be heard unless, in respect of each party on whom service is not altogether dispensed with, either—

    • (a) the Court is satisfied that the party has taken some steps in the proceedings; or

    • (b) an affidavit in form G 8 has been filed showing that the party has been personally served with the documents issued for service in relation to the application (see rule 127), or an affidavit has been filed showing that the party has been otherwise duly served in accordance with the directions of the Court or a Judge.

    (2) If an order in form G 9 is made under rule 126 for substituted service by advertisement (for example, in form G 10), the affidavit of advertising (see rule 128) must be in form G 11.

    Compare: SR 1989/295 r 43(1), (4)

299 Evidence at hearing of certain proceedings generally to be given orally
  • (1) At the hearing of proceedings (other than interlocutory proceedings) on an application for a declaration under section 67 of the Act, or an application under section 125 of the Act, evidence must be given orally.

    (2) However, the Court may, at any stage of the proceedings, order that certain evidence be given by affidavit or in another form that it directs.

    (3) Nothing in this rule affects—

    • (a) an order made under rule 170 (pre-hearing rulings on evidence):

    Compare: SR 1989/295 r 58

300 Consent to order of Court
  • (1) Subclause (2) applies when—

    • (a) the making of an order, or the imposing of a condition, under Part II or Part III of the Act requires the consent of any person or organisation; or

    • (b) in proceedings under Part II of the Act, the Court is empowered to make an order by the consent of all the parties to the proceedings.

    (2) When this subclause applies, a statement of consent, in form CYPF 6, duly completed and filed in the Court is sufficient evidence that the person by whom, or the organisation by which, that statement is signed or executed consents to the making of the order or, as the case requires, the imposing of the condition.

    (3) Subclause (4) applies when—

    • (a) the Court proposes to make an order under Part II or Part III of the Act; and

    • (b) either or both of the following apply:

      • (i) the making of that order requires the consent of any person or organisation:

      • (ii) that order may not be made unless a particular person or organisation has been informed of the proposal or intention to make the order and has been given an opportunity to make representations to the Court or to appear and be heard by the Court; and

    • (c) that person or organisation has not consented to the making of the order.

    (4) When this subclause applies, the Registrar must give notice in form CYPF 7 to the person or organisation specifying the order that the Court proposes to make and the time and place at which the person or organisation may make representations to the Court.

    Compare: SR 1989/295 r 29

301 Proceedings not to abate
  • (1) This rule applies to proceedings under the Act if a Social Worker or a member of the police, acting in that capacity, is a party (the party) to the proceedings and—

    • (a) dies; or

    • (b) ceases to hold office as a Social Worker or, as the case requires, a member of the police; or

    • (c) is for any other reason unavailable to participate in the proceedings as a party.

    (2) The proceedings do not abate just because of the circumstances referred to in subclause (1)(a), (b), or (c).

    (3) Another Social Worker or, as the case requires, another member of the police may, without further authority than this rule, participate in the proceedings in the place of the party, and the proceedings continue in all respects as if the other Social Worker or other member of the police were a party to the proceedings in the place of the party.

    Compare: SR 1989/295 r 68

302 Notice of Court's decision on application under section 371 or section 377 of Act
  • A notice that is required under section 378 of the Act to be given to a person must be given by posting the notice,—

    • (a) if it is to be given to the chief executive, in a letter addressed to the principal manager of the office of the Department in the area in which the Court is situated:

    • (b) if it is to be given to the manager of a residence, in a letter addressed to that manager at that residence:

    • (c) if it is to be given to another person, in a letter addressed to

    that person at that person's last known or usual place of residence.

    Compare: SR 1989/295 r 74

303 Copy of orders to be sent to principal manager of office of Department in relevant area
  • The Registrar must, as soon as practicable after the making of an order (including an interim or interlocutory order) under the Act, deliver or post a copy of the order to the principal manager of the office of the Department in the area in which the Court that made the order is situated.

    Compare: SR 1989/295 r 46

Domestic Violence Act 1995

304 Interpretation
  • In this rule and rules 305 to 332, unless the context otherwise requires,—

    objector means a respondent or associated respondent who objects, under section 36 of the Act, to a direction to attend a programme

    property order means 1 of the following orders, whether temporary or final

    • (a) an occupation order:

    • (b) a tenancy order:

    • (c) an ancillary furniture order:

    • (d) a furniture order.

305 Forms
  • The forms in Schedule 5 must be used in proceedings under the Act.

306 Applications without notice
  • (1) The following applications may be made without notice:

    • (a) an application under section 13 of the Act for a protection order:

    • (b) an application under section 60 of the Act for an occupation order or tenancy order:

    • (c) an application under section 70 of the Act for an ancillary furniture order or furniture order.

    (2) Nothing in subclause (1) prevents—

    • (a) a person who makes an application on notice from applying for a reduction of time in accordance with rule 132 (changing times by which things to be done); or

    • (b) other applications being made without notice, if that is authorised by the Act or another of these rules.

    (3) If an order is made against a person on an application without notice, under rule 24(2) or subclause (1), the person may apply under rule 34(c) to vary or rescind the order.

    Compare: SR 1996/148 r 14

307 Certain applications by respondent or associate respondent to be on notice
  • (1) The following applications relating to a protection order must be made on notice, if made by the respondent or an associated respondent:

    • (a) an application under section 22(2) or (3) of the Act (which relate to the imposition, discharge, and modification of the standard condition relating to weapons):

    • (b) an application under section 46(1) or (2) of the Act (which relate to the variation of a protection order), other than an application that seeks only the making of a direction under section 32 of the Act:

    • (c) an application under section 47(1) or (4) of the Act (which relate to the discharge of a protection order).

    (2) The following applications made in relation to a property order must be made on notice, if made by the respondent:

    • (a) in the case of an occupation order, an application under section 55 of the Act (which relates to variation and discharge):

    • (b) in the case of a tenancy order, an application under section 59 of the Act (which relates to discharge):

    • (c) in the case of an ancillary furniture order, an application under section 65 of the Act (which relates to variation and discharge):

    • (d) in the case of a furniture order, an application under section 69 of the Act (which relates to variation and discharge).

    (3) Nothing in subclause (1) or subclause (2)—

    • (a) prevents the respondent or an associated respondent from applying for a reduction in time under rule 132 (changing times by which things to be done); or

    • (b) limits rule 126 (order dispensing with or changing service required).

    Compare: SR 1996/148 r 14

308 Certificate of lawyer to be included in certain applications without notice
  • (1) This rule applies to an application made without notice for a protection order, property order, or both, if it is not intended that the application be made—

    • (a) by the party applying in person; or

    • (b) by a representative applying in person.

    (2) If this rule applies to an application, the documents required to be filed to make the application (see rule 20(1)(d)) include a certificate signed by the party's lawyer certifying—

    • (a) that the lawyer has advised the applicant that every affidavit filed with an application must fully and frankly disclose all relevant circumstances, whether or not they are advantageous to the applicant or another person for whose benefit the order is sought; and

    • (b) that the lawyer has made reasonable enquiries of the applicant in order to establish whether the relevant circumstances have been disclosed; and

    • (c) that, to the best of the lawyer's knowledge, every affidavit filed with the application discloses all relevant circumstances; and

    • (d) that the lawyer is satisfied—

      • (i) that the application and every affidavit filed with it complies with the requirements of the Act and these rules; and

      • (ii) that the order sought is one that ought to be made.

    (3) A certificate given by a lawyer under subclause (2)—

    • (a) must be signed by the lawyer personally in his or her own name; and

    • (b) may be given by the lawyer who has taken the affidavit in support or any other affidavit relevant to the application.

    (4) Before giving a certificate under subclause (2), a lawyer must be satisfied—

    • (a) that the application and every affidavit filed with it complies with the requirements of the Act and these rules; and

    • (b) that the order sought is one that ought to be made.

    (5) The lawyer is responsible to the Court in respect of the matters referred to in subclause (4).

    Compare: SR 1996/148 r 26

309 Documents to be filed to make certain applications
  • (1) The documents required to be filed to make an application for a protection order or a property order under the Act (see rule 20(1)(c) and (d)) include—

    • (a) an affidavit in form DV 4 (affidavit in support of application for protection order/property orders) deposing to the matters on which the application is based; and

    • (b) if the application is one for a protection order a notice in form DV 6 (information for police if application made for protection order) setting out information about firearms licences and weapons.

    (2) If a protection order or property order is to be used in support of an application, then, unless the Registrar directs otherwise, the documents to be filed to make the application (see rule 20(1)(f)) include either a copy of the order, or a copy of a copy of the order.

    Compare: SR 1996/148 rr 21, 23, 24

310 Residential address not required
  • (1) This rule applies to a person if the person is—

    • (a) a party to proceedings relating wholly or partly to an application made, by or on behalf of the party, for a protection order, or for an order under Part III of the Act, or for both; or

    • (b) a party to an appeal from the determination of a Court in proceedings to which paragraph (a) applies; or

    • (c) a party to proceedings relating to, or arising out of, an order of the kind referred to in paragraph (a) if the decision was made in that party's favour.

    (2) The person need not give a residential address on a document presented for filing in a Court in proceedings under the Act.

    (3) The person must provide an address for service, in accordance with rule 82.

    (4) This rule is subject to rule 311.

    Compare: SR 1996/148 r 45

311 Applicant for protection order may request that residential address be kept confidential
  • (1) An applicant for a protection order who wants his or her residential address not to be disclosed to a respondent or associated respondent must include, in the documents required to be filed to make the application, a notice in form DV 5 (notice of residential address and request for confidentiality)—

    • (a) stating the applicant's residential address; and

    • (b) requesting that the address be kept confidential.

    (2) If an applicant files a notice of that kind but later changes his or her address, the applicant may notify the Court of the change by filing a further notice of that kind.

    Compare: SR 1996/148 r 22

312 Filing of applications
  • (1) An application under the Act must be filed—

    • (a) in the Court nearest to the place where the applicant or 1 of the applicants resides; or

    • (b) in the Court nearest to the place specified by the applicant or 1 of the applicants as his or her address for service; or

    • (c) in the Court nearest to the place where the respondent or any associated respondent resides; or

    • (d) with the written consent of every respondent and every associated respondent, in any other Court.

    (2) Subclause (1) is subject to rule 225 (which relates to where interlocutory applications under the Act must be filed).

    (3) Written consent given under subclause (1)(d) must be filed with the application.

    Compare: SR 1996/148 r 27

313 Registrar to fix earliest practicable date for hearing of applications on notice
  • (1) If an application under the Act is made on notice, the date and time that the Registrar must assign or fix, under rule 32(1), for the hearing of the application is the date and time that is as soon as practicable after the application is made.

    (2) Nothing in this rule limits any provision of the Act that requires that, unless there are special circumstances, the hearing date assigned or fixed must be no later than a specified period after the application is made.

    Compare: SR 1996/148 r 29(1)(b), (2)

314 Notice of defence when application on notice
  • (1) A person served with documents relating to an application under the Act and who intends to defend the application may file in the Court and serve on the applicant, under rule 40,—

    • (a) a notice of defence in form DV 10 (notice of defence); and

    • (b) if the application is for a protection order, property order, or both, an affidavit—

      • (i) setting out sufficient particulars to indicate the grounds on which the defence is based; and

      • (ii) containing sufficient information to inform the Court of the facts relied on in support of the defence.

    (2) For the purposes of rule 41(a), the person must file and serve the notice of defence and, if applicable, an affidavit no later than the sixth day before the date of the hearing.

    (3) Rule 42 applies if the person fails to file and serve a notice of defence and, if applicable, an affidavit, within the time fixed by subclause (2); however,—

    • (a) if the application is one referred to in subclause (1)(b), the references in rule 42(1)(a)(i) and (b) to a notice of defence must be read as including a reference to an affidavit described in subclause (1)(b) of this rule; and

    • (b) if the hearing is to be adjourned, under rule 42(2), it must be adjourned to a time and date as soon as practicable and no later than 42 days after the date of the granting of the adjournment unless there are special circumstances; and

    • (c) the Court may, at the hearing, make a decision on the application.

    Compare: SR 1996/148 r 31

315 Notice of intention to appear in relation to temporary protection order or temporary property order
  • (1) This rule applies to the following persons if a temporary protection order or temporary property order is made and relates to them:

    • (a) the respondent in proceedings under the Act:

    • (b) an associated respondent in proceedings under the Act:

    • (c) a person of the kind referred to in section 79(3) of the Act.

    (2) A person to whom this rule applies may file in Court and serve on the other party to the proceedings, under rule 40, a notice of intention to appear in form DV 11 (notice of intention to appear).

    (3) For the purposes of rule 41(a), the notice of intention to appear must be filed and served before the day on which the temporary protection order or temporary property order relating to that person becomes final under section 77 of the Act.

    (4) An affidavit must be filed with the notice of intention to appear, and must set out—

    • (a) sufficient particulars to indicate the reasons for giving notice; and

    • (b) sufficient information to inform the Court of the facts being relied on.

    (5) If a notice of intention to appear is filed, a Registrar must—

    • (b) notify the parties to the proceedings accordingly.

    (6) Nothing in this rule limits section 60(4)(c) of the Act.

    Compare: SR 1996/148 r 32

316 Time for service
  • Service of a document relating to proceedings under the Act must be effected—

    • (a) No later than the 11th day before the day of the hearing of the application, if service is within New Zealand; or

    • (b) No later than the 22nd day before the day of the hearing of the application, if service is out of New Zealand.

    Compare: SR 1996/148 r 52(2)

317 Temporary property orders made on application without notice
  • (1) Subclause (2) applies if—

    • (a) an occupation order, tenancy order, or furniture order is made on an application without notice; and

    • (b) the Court at the same time makes a temporary protection order; and

    • (c) a notice of intention to appear is filed under rule 315 in respect of both orders.

    (2) If this subclause applies in accordance with subclause (1), the hearing date that the Registrar assigns under section 76 of the Act in respect of the temporary property order referred to in subclause (1)(a) must be the same as the hearing date assigned under that section in respect of the temporary protection order referred to in subclause (1)(b).

    (3) Subclause (4) applies if—

    • (a) an occupation order or tenancy order is made on an application without notice while the applicant and respondent are living in the same house; and

    • (b) the Court does not make a temporary protection order at the same time; and

    • (c) a notice of intention to appear is filed under rule 315 in respect of the occupation order or tenancy order.

    (4) If this subclause applies in accordance with subclause (3), the hearing date that the Registrar assigns under section 76 of the Act in respect of a temporary property order referred to in paragraph (3)(a) must not be later than the seventh day after the date of the making of the order.

    Compare: SR 1996/148 r 33

318 Registrar to issue order when temporary order becomes final or is confirmed
  • (1) If a temporary order becomes final (in whole or in part) under section 77(1) of the Act, a Registrar must immediately issue a final order in the appropriate prescribed form confirming that the temporary order has become final (in whole or in part) and setting out the terms and conditions of the final order.

    (2) If the Court confirms a temporary order (with or without variation) under section 80(1)(c) of the Act, the Registrar must immediately issue a final order in the appropriate prescribed form, setting out the terms and conditions of the order as confirmed (including the terms and conditions of the order to the extent that it has already become final).

    (3) A Court must direct a Registrar to immediately issue a final order in the appropriate prescribed form confirming that a temporary property order has become final (in whole or in part) and setting out the terms and conditions of the final order, if—

    • (a) notice has been given to any person having an interest in the property affected; and

    • (b) that person so notified has taken no steps in the proceedings; and

    • (c) the order has become final (in whole or in part) under section 77(1) of the Act.

    (4) Subclause (1) is subject to subclause (3).

    (5) A Registrar—

    • (a) must comply with the Court's direction under subclause (3); and

    • (b) may exercise the Court's power under subclause (3).

    Compare: SR 1996/148 r 34

319 Notice of objection to direction to attend programme
  • (1) A notice of objection, under section 36(2)(b)(i) of the Act, must be in form DV 24.

    (2) If a notice of objection is filed, a Registrar must—

    • (a) arrange for a copy of the notice to be served on the person applying for the protection order; and

    • (b) advise the applicant that he or she may make written submissions in relation to the objection, and that any submissions of that kind must be received within 5 days after the day on which the notice is served on him or her; and

    • (c) if the objector wishes to be heard, advise the applicant that the applicant is entitled to appear and be heard in person, or to have his or her lawyer appear on his or her behalf.

    (3) A Registrar may, on a written request by the objector for the purpose, amend a notice of objection made under section 36(2)(b)(i) of the Act before it is served under subclause (2)(a).

    Compare: SR 1996/148 rr 67(2), 83

320 How notice of objection to be dealt with
  • (1) A Registrar may exercise the Court's power under section 37 of the Act, but must not discharge a direction.

    (2) If an objector seeks the discharge of a direction, or if a Registrar considers that the discharge of a direction may be appropriate, the Registrar must refer the objection to a Judge at the next convenient opportunity.

    (3) If the objector does not wish to be heard, then, subject to subclause (1), the objection may be dealt with on the papers.

    (4) A Registrar must assign a hearing date under section 36(3) of the Act if the person objecting wishes to be heard or the Court or a Registrar considers that a hearing is necessary.

    (5) The objector may—

    • (a) make written submissions in respect of the objection; or

    • (b) if a hearing is required, appear and be heard in person or by his or her lawyer.

    Compare: SR 1996/148 r 84

321 Notice of result of objection
  • As soon as practicable after a decision is made on an objection under section 37(1) of the Act, a Registrar must—

    • (a) cause the decision to be drawn up in form DV 25 (notice of result of objection to direction to attend programme); and

    • (b) arrange for a copy of the decision to be served on the parties.

    Compare: SR 1996/148 r 85

322 Request by provider for variation of programme
  • A request by a programme provider, under section 41 of the Act, for variation of a direction must be in form DV 26 (request by programme provider for variation of direction to attend programme).

    Compare: SR 1996/148 r 86

323 Witness summons calling respondent or associated respondent before Court
  • (1) If a Registrar under section 41A(1)(a) of the Act, or a Judge under section 42 of the Act, calls the respondent or an associated respondent to appear before the Court, the summons must be in form DV 13.

    (2) Rule 321 applies, as far as applicable and with all necessary modifications, to a decision of the Court made under section 42A of the Act.

    Compare: SR 1996/148 rr 87, 88

    Rule 323 heading: substituted, on 3 August 2009, by rule 7(1) of the Family Courts Amendment Rules 2009 (SR 2009/185).

    Rule 323(1): amended, on 3 August 2009, by rule 7(2) of the Family Courts Amendment Rules 2009 (SR 2009/185).

    Rule 323(2): amended, on 3 August 2009, by rule 7(3) of the Family Courts Amendment Rules 2009 (SR 2009/185).

324 Enforcement of occupation orders and tenancy orders: District Courts Rules 1992 apply
  • Rules 626 and 627 of the District Courts Rules 1992 apply, as far as applicable and with all necessary modifications, to the enforcement of occupation orders and tenancy orders made under the Act.

    Compare: SR 1996/148 r 89

325 Enforcement of ancillary furniture orders and furniture orders: District Courts Rules 1992 apply
  • Rule 622 of the District Courts Rules 1992 applies, as far as applicable and with all necessary modifications, to the enforcement of ancillary furniture orders and furniture orders made under the Act.

    Compare: SR 1996/148 r 90

326 Certain documents to be served with temporary protection orders and temporary property orders
  • (1) When a temporary protection order or a temporary property order is to be served, under rule 206(1), the order must be accompanied by—

    • (a) a copy of the relevant information sheet; and

    • (b) except as provided by subclause (2),—

      • (i) a copy of the application for the order; and

      • (ii) a copy of any accompanying affidavit.

    (2) However, a Judge may direct that 1 or more of the documents referred to in subclause 1(b) not be served with the temporary order, and may also direct either or both of the following:

    • (a) that service of the document or documents on that party be delayed for a period (not exceeding 5 days) after service of the temporary order the Judge directs:

    • (b) that the document or documents be served on that party in a manner the Judge directs (for example, by making the document or documents available for collection by that party from a specified place).

    Compare: SR 1996/148 r 53(2), (3)

327 Extension of period for service
  • (1) This rule applies to a temporary order made by a Court if the respondent or associated respondent has not been served with a copy of the order within the 3-month period specified in section 77(1) of the Act.

    (2) The Court may, in accordance with section 77(3) of the Act, extend the period within which the order may be served, either on its own initiative or on an interlocutory application by a party for the purpose.

    (3) A Registrar may exercise the Court's power, under section 77(3) of the Act, to extend the period of service.

    Compare: SR 1996/148 r 54

328 Copies of orders to be sent to police
  • (1) This rule applies to a temporary order or a final order made under the Act.

    (2) On the making of the order, a Registrar must immediately send to the District Commander at the appropriate police district headquarters—

    • (a) a copy of the order; and

    • (b) in the case of a protection order made available to the District Commander under section 88(1) of the Act, a copy of the notice in form DV 6 (information for police if application made for protection order) filed with the application.

    (3) A copy of the order may be made available by ordinary post or in 1 of the ways specified in section 88(3)(a), (b), or (d) of the Act.

    (4) In this rule, order includes—

    • (a) an order varying or discharging an order made under the Act; and

    • (b) an order made in substitution for another order; and

    • (c) a final order issued by a Registrar under rule 318.

    Compare: SR 1996/148 rr 61, 63

329 Service of certain orders to be communicated to police
  • (1) A person required by section 89 of the Act to give notice to an officer in charge of a police station of the service of a copy of a protection order or of a copy of any order varying a protection order may initially give the notice orally but must, as soon as practicable, confirm that oral notice in writing.

    (2) If a person required to give notice is an officer of the Court, the notice may be given in any of the ways set out in section 88(3) of the Act.

    Compare: SR 1996/148 r 62

330 Registration of foreign protection orders
  • If a certified copy of a foreign protection order is registered under section 97 of the Act, the Registrar must—

    • (a) enter the particulars of the order in the records in the same way as if the order had been made by the Family Court which is a division of the District Court in which the order is registered; and

    • (b) add to the entry and on all copies of the order the words Registered in the District Court at [place of registration] on [date of registration] under section 97 of the Domestic Violence Act 1995.

    Compare: SR 1996/148 r 91

331 Notice of registration of foreign protection orders
  • (1) If an order is registered in a Court under section 97 of the Act, the Registrar of the Court must cause to be served on the respondent notice of the registration in form DV 27 (notice of registration of foreign protection order).

    (2) Failure to serve a notice of that kind does not affect the validity of the registration or any proceedings relating to the order.

    Compare: SR 1996/148 r 92

332 Notice to be given to foreign court or authority
  • (1) If a foreign protection order is registered under section 97 of the Act, a Registrar must cause a copy of the notice of registration to be sent as soon as practicable to the court or appropriate authority in the country in which the order was made.

    (2) If a Court makes an order varying a foreign protection order under section 99(c) of the Act, a Registrar must cause a copy of the order varying the foreign protection order to be sent as soon as practicable to the court or appropriate authority in the country in which the foreign protection order was made.

    (3) If, under section 101 of the Act, the registration of a foreign protection order is cancelled, the Registrar must cause notice of the cancellation to be sent as soon as practicable to the court or appropriate authority in the country in which the order was made.

    (4) If this rule requires a notice or a copy of a notice or of an order to be sent,—

    • (a) the notice or copy may, in the first instance, be sent by means of electronic transmission (whether by way of fax, email, or other similar means of communication):

    • (b) whether or not the notice or copy is sent by electronic transmission, the notice or copy must also be sent, in documentary form, by airmail or in any other manner that is appropriate in the circumstances.

    Compare: SR 1996/148 r 93

Family Proceedings Act 1980 and Care of Children Act 2004

  • This heading was amended, as from 1 July 2005, by rule 20 Family Courts Amendment Rules 2005 (SR 2005/101) by substituting the expression Care of Children Act 2004 for the expression Guardianship Act 1968. It previously read Family Proceedings Act 1980 and Guardianship Act 1968

333 Interpretation
  • In this rule and rules 334 to 376, unless the context otherwise requires,—

    Acts means the Family Proceedings Act and the Care of Children Act

    Acts: this definition was substituted, as from 1 July 2005, by rule 21 Family Courts Amendment Rules 2005 (SR 2005/101).

    Care of Children Act means the Care of Children Act 2004

    Care of Children Act: this definition was inserted, as from 1 July 2005, by rule 21 Family Courts Amendment Rules 2005 (SR 2005/101).

    Family Proceedings Act means the Family Proceedings Act 1980

    Guardianship Act

    [Revoked]

    Guardianship Act: this definition was revoked, as from 1 July 2005, by rule 21 Family Courts Amendment Rules 2005 (SR 2005/101).

334 Forms
  • (1) The forms set out in Schedule 6 must be used in proceedings under the Acts.

    (2) Form FP 15A in Schedule 6 must be used for an application to the Court for a declaration of paternity under section 10(2) of the Status of Children Act 1969.

    Subclause (2) was inserted, as from 1 July 2005, by rule 22 Family Courts Amendment Rules 2005 (SR 2005/101).

335 Applications without notice
  • (1) Applications under the following sections may be made and granted without notice:

    • (a) section 76 of the Care of Children Act (authority to use faxed copy of warrant):

    • (b) section 77 of the Care of Children Act (preventing removal of child from New Zealand):

    • (d) section 143(5) of the Care of Children Act (order dispensing with security for appeal):

    • (e) section 10(2)(b) of the Family Proceedings Act (direction that application for separation not be referred to a counsellor or that a reference made by the Registrar be revoked):

    • (f) section 147 of the Family Proceedings Act (provisional maintenance order):

    • (g) section 174(2) of the Family Proceedings Act (order dispensing with security for appeal):

    • (h) section 183 of the Family Proceedings Act (order restraining disposition):

    (2) An application under the Family Proceedings Act may also be made without notice when section 157 of that Act applies.

    (3) Nothing in subclauses (1) and (2) prevents other applications being made without notice, if that is authorised by either of the Acts or these rules.

    (4) If an order is made against a person on an application without notice, under rule 24(2) or subclause (1) or subclause (2), the person may, at any time, apply under rule 34(c) to vary or rescind the order.

    Compare: SR: 1981/261 rr 16(1), (2)(b), (6), 82(1)

    Subclause (1)(a) to (d) was substituted, as from 1 July 2005, by rule 23 Family Courts Amendment Rules 2005 (SR 2005/101).

336 Affidavits in support to be filed to make certain applications without notice
  • Applicants under either of the Acts who make an application without notice under rule 24(2)(b) or rule 335(1) (except paragraph (i)) must file with the other documents required to be filed to make the application (see rule 20(1)(c)) an affidavit made by the applicant or some other person deposing to the matters on which the application is based.

    Compare: SR: 1981/261 r 16(5)

336A Applications for warrants and delivery of child
  • (1) This rule applies to every application under section 72(2) or section 73(2) of the Care of Children Act seeking a warrant directing that a child be delivered—

    • (a) to the applicant; or

    • (b) to some other person or authority named in the warrant on behalf of the applicant.

    (2) An application to which this rule applies must be accompanied by a written statement indicating what arrangements are being made for the child to be delivered to the applicant after execution of the warrant.

    Rules 336A to 336C were inserted, as from 1 July 2005, by rule 24 Family Courts Amendment Rules 2005 (SR 2005/101).

336B Notice of intention to appear in relation to interim parenting order
  • (1) This rule applies to a parent who is a party to an interim parenting order made under section 48(1) of the Care of Children Act, if—

    • (a) the interim order was made on an application without notice; and

    • (b) the parent has, under that order, neither the role of providing day-to-day care for, nor contact with, the child; and

    • (c) the parent wishes to be heard on whether a final order should be substituted for the interim order.

    (2) A parent to whom this rule applies must—

    • (a) use form FP 36B in Schedule 6 to give notice of his or her intention to appear in relation to the interim parenting order; and

    • (b) file with the form an affidavit that sets out—

      • (i) sufficient particulars to indicate the reasons for giving notice; and

      • (ii) sufficient information to inform the Court of the facts being relied on.

    Rules 336A to 336C were inserted, as from 1 July 2005, by rule 24 Family Courts Amendment Rules 2005 (SR 2005/101).

336C Notice of intention to appear in relation to other interim orders
  • (1) This rule applies to a person who is a party to an interim order made under section 53(2) or section 54(1) of the Care of Children Act (which relate to certain proceedings under the Family Proceedings Act or under the Domestic Violence Act 1995), if—

    • (a) the interim order was made on an application without notice; and

    • (b) the person has, under that order, neither the role of providing day-to-day care for, nor contact with, the child; and

    • (c) the person wishes to be heard on whether a final order should be substituted for the interim order.

    (2) A person to whom this rule applies must—

    • (a) use form FP 36B in Schedule 6 to give notice of his or her intention to appear in relation to the interim order; and

    • (b) file with the form an affidavit that sets out—

      • (i) sufficient particulars to indicate the reasons for giving notice; and

      • (ii) sufficient information to inform the Court of the facts being relied on.

    Rules 336A to 336C were inserted, as from 1 July 2005, by rule 24 Family Courts Amendment Rules 2005 (SR 2005/101).

337 Accompanying affidavits may be filed to make applications for order dissolving marriage or civil union
  • (1) Applicants for an order dissolving a marriage or civil union may file with the other documents to be filed to make the application (see rule 20(1)(c)) an affidavit that, under section 38(2)(d) of the Family Proceedings Act, accompanies the application.

    (2) That affidavit must be—

    • (a) in form FP 12, if the application is in form FP 11 (application by one party for order dissolving marriage or civil union):

    • (b) in form FP 14, if the application is in form FP 13 (joint application for order dissolving marriage or civil union).

    Compare: SR: 1981/261 r 15(3A)

    The heading to rule 337 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

    Rule 337 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage wherever it appears.

338 Separation order or separation agreement
  • If a copy of a separation order or separation agreement is to be used in support of an application under section 37 of the Family Proceedings Act for an order dissolving a marriage or civil union, a copy of that order or agreement must,—

    • (a) if the application is accompanied by an affidavit in form FP 12 or form FP 14, as the case may require, be annexed to that affidavit; or

    • (b) in any other case, be lodged in the office of the Court—

      • (i) at the time of the filing of the documents to be filed to make the application (see rule 20(1)(f)); or

      • (ii) at another time the Registrar may direct.

    Compare: SR: 1981/261 r 15(4)

    Rule 338 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

339 Marriage or civil union certificate
  • (1) The original or a certified copy of the certificate of a marriage or civil union to which an application under section 37 of the Family Proceedings Act relates must,—

    • (a) if the application is accompanied by an affidavit in form FP 12 (affidavit to accompany application by one party for order dissolving marriage or civil union) or form FP 14 (affidavit to accompany joint application for order dissolving marriage or civil union), as the case may require, be annexed to that affidavit; or

    • (b) in any other case, be lodged in the office of the Court—

      • (i) at the time of the filing of the documents required to be filed to make the application (see rule 20(1)(d)); or

      • (ii) at another time the Registrar may direct.

    (2) The original or a certified copy of the certificate of a marriage or civil union to which an application under section 27 or section 29 or section 32 of the Family Proceedings Act relates must be lodged in the office of the Court—

    • (a) at the time of the filing of the documents required to be filed to make the application (see rule 20(1)(d)); or

    • (b) at another time the Registrar may direct.

    (3) The Registrar may dispense with the lodging of a certificate under subclause (1)(b) or subclause (2), if he or she is satisfied that the certificate is not available.

    Compare: SR 1981/261 r 19

    The heading to rule 339 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

    Rule 339 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage wherever it appears.

340 Filing of certain applications
  • (1) The following applications may be filed in any Court:

    • (a) an application under Part IV of the Family Proceedings Act (which Part concerns proceedings relating to the status of marriage or civil union); and

    • (b) any other application under either of the Acts and that is filed with, or is filed in relation to, an application under Part IV of the Family Proceedings Act.

    (2) On a written request for the purpose made by the respondent within 21 days after the date of service on him or her of the application, the Registrar of the Court in which an application under Part IV of the Family Proceedings Act is filed must transfer the application to the Court in paragraph (a)(i) or (ii) and notify the applicant of that transfer if—

    • (a) the Court in which the application is filed is neither—

      • (i) the Court nearest to the place where the applicant resides; nor

      • (ii) the Court nearest to the place where the respondent resides; and

    • (b) the respondent has not consented in writing to the filing of the application in the Court in which it is filed.

    Compare: SR 1981/261 r 20(2)-(4)

    Subclause (1) was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

341 Application for separation order
  • (1) If, on the filing of an application for a separation order, neither subclause (2) nor subclause (3) applies, a Registrar must—

    • (a) arrange for the application to be referred to a counsellor; and

    • (b) send the respondent a notice in form FP 2.

    (2) If, on the applicant filing in a Court a request in form FP 3 to dispense with reference to counselling and claiming that, by virtue of section 10(2)(a) of the Family Proceedings Act, the matter should not be referred to a counsellor, the Registrar is satisfied as to the facts on which that claim is based, he or she must (under rule 32(2)(c)) issue for service on the respondent—

    • (a) the documents relating to the application; and

    • (b) a notice to respondent in form FP 16 or, if the respondent resides outside New Zealand, in form FP 17.

    (3) If the applicant applies for a direction under section 10(2)(b) of the Family Proceedings Act that the matter be not referred to a counsellor, the Registrar must submit that application to a Judge unless the Registrar, under section 10(2)(a) of the Family Proceedings Act, dispenses with the reference to a counsellor of the application for a separation order.

    (4) If an application for a separation order has been referred by a Registrar to a counsellor, under subclause (1), either the applicant or the respondent may apply to a Judge for a direction under section 10(2)(b) of the Family Proceedings Act that the reference made by the Registrar be revoked.

    (5) The Registrar must refer every application of that kind (for a direction that the reference of a Registrar be revoked) to a Judge and, if the Judge gives a direction of that kind, the Registrar must (under rule 32(2)(c)) issue for service on the respondent—

    • (a) the documents relating to the application for a separation order; and

    • (b) a notice to respondent in form FP 16 or, if the respondent resides outside New Zealand, in form FP 17.

    Compare: SR 1981/261 r 23

342 Restriction on service of application for separation order
  • (1) If an application for a separation order has been referred to a counsellor under section 10(1) of the Family Proceedings Act, the application must not be served on the respondent unless the reference is revoked.

    (2) However, if an application for a separation order has been referred to a counsellor under section 10(1) of the Family Proceedings Act and the counsellor reports to the Registrar that the spouses or partners do not wish to resume the marriage, civil union, or de facto relationship, the Registrar must—

    • (a) issue for service on the respondent (under rule 32(2)(c))—

      • (i) the documents relating to the application; and

      • (ii) a notice in form FP 5 (notice to respondent of resumption of proceedings); and

    • (b) issue for service on the respondent, or on the respondent's lawyer, as the case may require, a copy of the counsellor's report.

    Compare: SR 1981/261 r 24

    Subclause (2) was amended, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3) by substituting the words the spouses or partners do not wish to resume the marriage, civil union, or de facto relationship for the words the husband and wife do not wish to resume or continue the marriage.

343 Report by counsellor
  • (1) Subclause (2) applies to an application when—

    • (a) it has been referred to a counsellor under section 10(1) or (4) of the Family Proceedings Act; and

    • (b) the counsellor reports to the Registrar that the spouses, civil union partners, or de facto partners wish to resume or continue the marriage, civil union, or de facto relationship.

    (2) The application must be treated as having been struck out 3 months after the date of the report unless, before the end of that period, either party requests that the hearing be commenced or resumed.

    Compare: SR 1981/261 r 25

    Subclause (1)(b) was amended, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3) by substituting the words spouses, civil union partners, or de facto partners wish to resume or continue the marriage, civil union, or de facto relationship for the words husband and wife wish to resume or continue the marriage.

344 Affidavit of financial means and their sources
  • (1) If an application for a maintenance order is made under any provision (except Part VIII) of the Family Proceedings Act, both the applicant and the respondent must, before the hearing of the application,—

    • (a) file an affidavit in form FP 18 (affidavit of financial means and their sources), setting out his or her financial means and their sources; and

    • (b) serve a copy of the affidavit on the other party.

    (2) If a party fails to comply with subclause (1), the Court may treat the failure as a failure to comply with an order under rule 139(3) (further particulars).

    (3) The Court may, on an interlocutory application for the purpose by the applicant or the respondent, make an order dispensing with compliance with the requirements of subclause (1).

    Compare: SR 1981/261 r 26

345 Notice of defence
  • (1) A person served with an application under the Acts may, within the time specified in or under rule 41, file in the Court and serve on the applicant, under rule 40, a notice of defence to the application.

    (2) If a respondent intends to claim relief under section 168 of the Family Proceedings Act, the notice of defence must conclude with a request for that relief.

    (3) A notice of defence may, under rule 79 (amendment of application form, or notice of defence or intention to appear), be amended by the addition of a request for relief under section 168 of the Family Proceedings Act.

    Compare: SR 1981/261 r 27

346 Request by respondent for appearance on application for dissolution of marriage or civil union
  • If a respondent to an application for a dissolution of marriage or civil union requests an appearance, under section 38(2)(c) of the Family Proceedings Act, the request must be in form FP 19 (request for an appearance) and must be filed and served on the applicant, or on the applicant's lawyer,—

    • (a) within 21 days after the service on the respondent of the documents relating to the application (including the notice to respondent in form FP 16); or

    • (b) if the respondent resides outside New Zealand, or is the subject of an order for substituted service, within the time that the Court or Registrar must fix on an interlocutory application made by the applicant for the purpose.

    Compare: SR 1981/261 r 27C

    The heading to rule 346 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

    Rule 346 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

347 Request for hearing before order dissolving marriage or civil union made
  • A party who, after the filing of an application for an order dissolving the marriage or civil union but before the order is made, seeks a hearing, under section 38(3) of the Family Proceedings Act, must file in Court a request for a hearing in form FP 20.

    Compare: SR 1981/261 r 27D

    The heading to rule 347 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

    Rule 347 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

348 Filing of request for appearance, or request for hearing by respondent, if application for dissolution of marriage or civil union by one party only
  • (1) Subclause (2) applies to a respondent who is served with—

    • (a) an application for an order dissolving a marriage or civil union made by one party to the marriage or civil union in form FP 11, in which the applicant has indicated the applicant's consent to the order being made in his or her absence; and

    • (b) an affidavit to accompany the application, in form FP 12; and

    • (c) a notice to the respondent in form FP 16 or, if the respondent resides outside New Zealand, in form FP 17.

    (2) The respondent—

    • (a) may not appear and defend the application unless the respondent has filed and served a notice of defence, request for an appearance, or a request for a hearing:

    • (b) may file and serve a request for an appearance or a request for a hearing, whether or not the respondent also files and serves a notice of defence.

    Compare: SR 1981/261 r 27E

    The heading to rule 348 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

    Subclause (1)(a) was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage in both places it appears.

349 Mediation conference
  • (1) A request to the Registrar, under section 13(1) of the Family Proceedings Act, for a mediation conference may be made—

    • (a) by either party, at any time before the hearing of the proceedings has commenced; and

    • (b) by a Judge, at any stage of the proceedings.

    (2) If made by a party, the request may be made orally or in writing but, if made orally, must be confirmed in writing as soon as possible.

    Compare: SR 1981/261 r 29

350 Change of Judge after mediation conference
  • A Judge who decides, under section 16 of the Family Proceedings Act, that he or she should not hear any later proceedings between the parties must make a note to that effect in his or her record of the mediation conference.

    Compare: SR 1981/261 r 30

350A Request to speak on child's cultural background
  • A party to proceedings under the Care of Children Act who asks the Court (under section 136(1) of that Act) to hear a person speak on a child's cultural background, or any aspects of it that may be relevant to a matter in issue in the proceedings, must make that request in writing.

    Rule 350A was inserted, as from 1 July 2005, by rule 25 Family Courts Amendment Rules 2005 (SR 2005/101).

351 Restrictions on fixing date and time for hearing
  • If an application (other than one under section 32 or section 37 of the Family Proceedings Act) is made under either of the Acts, then,—

    • (a) unless a Judge in a particular case orders otherwise, no date and time may be fixed by the Registrar for the hearing of the application—

      • (i) before any request for a mediation conference made in respect of the application has been disposed of; or

      • (ii) before the time for filing a notice of defence, as specified in rule 41, has expired; or

      • (iii) where notice must be given under section 138 of the Care of Children Act, before the expiry of the period specified in the notice; and

    • (b) all parties must give the Registrar, without delay, all available information affecting any estimated length of the hearing.

    Compare: SR 1981/261 r 32

    Paragraph (a)(ii) was substituted, as from 1 July 2005, by rule 26 Family Courts Amendment Rules 2005 (SR 2005/101).

    Paragraph (a)(iii) was inserted, as from 1 July 2005, by rule 26 Family Courts Amendment Rules 2005 (SR 2005/101).

352 Fixing date and time for hearing: notice of defence filed
  • (1) If a respondent has filed a notice of defence to an application (other than one under section 32 or section 37 of the Family Proceedings Act) under either of the Acts, no date and time may be fixed for the hearing of the application except on the filing in the Court of an application for a fixture in form G 17.

    (2) However, the Registrar may fix a date and time for the hearing of the application even though the application for the fixture is signed by one party alone if the Registrar is satisfied that the other party or parties have refused to sign the application and that the refusal is, in the circumstances, unreasonable.

    (3) A Registrar who fixes a date and time under subclause (2) must note on the application that the Registrar has done so.

    (4) The Registrar must give the parties notice of the date and time fixed for the hearing of the application.

    (5) The Registrar must give a person to whom section 138(1) of the Care of Children Act applies reasonable prior notice in writing of the date and time of the hearing and the period within which the person must advise the Court whether he or she intends to attend the hearing.

    (6) The Registrar must, before the hearing referred to in subclause (5), give each party to the proceedings—

    • (a) details of all persons (if any) who have advised the Registrar, after receiving the notice referred to in subclause (5), that they intend to attend the hearing; and

    • (b) a reasonable opportunity to object to those persons attending.

    Compare: SR 1981/261 r 32A

    Subclauses (5) and (6) were inserted, as from 1 July 2005, by rule 27 Family Courts Amendment Rules 2005 (SR 2005/101).

353 Fixing date and time for hearing: no notice of defence filed
  • If no respondent has filed a notice of defence to an application (other than one under section 32 or section 37 of the Family Proceedings Act) under either of the Acts,—

    • (a) the date and time for the hearing of the application must be fixed by the Registrar on a written request by the applicant, and not otherwise; and

    • (b) the Registrar must give notice of the date and time fixed for the hearing of the application—

      • (i) to the applicant; and

      • (ii) to the respondent if he or she has filed an address for service, or has been served with the documents issued for service in relation to the application; and

    • (c) the Registrar must give a person to whom section 138(1) of the Care of Children Act applies reasonable prior notice in writing of the date and time of the hearing and the period within which the person must advise the Court whether he or she intends to attend the hearing; and

    • (d) the Registrar must, before the hearing referred to in paragraph (c), give each party to the proceedings—

      • (i) details of all persons (if any) who have advised the Registrar, after the notice referred to in paragraph (c), that they intend to attend the hearing; and

      • (ii) a reasonable opportunity to object to those persons attending.

    Compare: SR 1981/261 r 32B

    Paragraph (b)(ii) was substituted, as from 1 July 2005, by rule 28(1) Family Courts Amendment Rules 2005 (SR 2005/101).

    Paragraphs (c) and (d) were inserted, as from 1 July 2005, by rule 28(2) Family Courts Amendment Rules 2005 (SR 2005/101).

354 Fixing date and time for hearing of application for declaration or order dissolving marriage or civil union
  • (1) If an application under section 32 of the Family Proceedings Act (that is, an application for an order declaring that the other party to the marriage or civil union is presumed to be dead and that the marriage or civil union is dissolved) is made in a Court, the Registrar of the Court must, on the filing in the Court of the application, fix the date and time for the hearing of the application.

    (2) If an application under section 37 of the Family Proceedings Act (that is, an application for an order dissolving a marriage or civil union) is made in a Court, the Registrar of the Court must, on the filing in a Court of the application, fix the date and time for the hearing of the application if, at the time that the application is filed,—

    • (a) in the case of a joint application, both applicants do not consent to the order being made in their absence; or

    • (b) in the case of an application other than a joint application, the applicant does not consent to the order being made in his or her absence; or

    • (c) section 38(2)(d) of the Family Proceedings Act (which requires that the application be accompanied by an affidavit stating certain matters) is not complied with.

    (3) The Registrar may, by telephone or any other means the Registrar thinks fit,—

    • (a) change, to a later date, the date fixed under subclause (1) or subclause (2) for the hearing of the application; and

    • (b) authorise the applicant to make corresponding alterations in the documents to be served on the respondent.

    Compare: SR 1981/261 r 32C

    The heading to rule 354 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

    Rule 354 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage wherever it appears.

355 Registrar's list of section 37 applications (for order dissolving marriage or civil union)
  • (1) If an application under section 37 of the Family Proceedings Act is made in a Court, the Registrar of the Court must, instead of fixing a date and time for the hearing of the application, enter the application on the Registrar's list of section 37 applications if, at the time that the application is filed,—

    • (a) in the case of a joint application,—

      • (i) both applicants consent to the order being made in their absence; and

      • (ii) the application is accompanied by the affidavit required by section 38(2)(d) of the Family Proceedings Act, namely an affidavit in form FP 14 (affidavit to accompany joint application for order dissolving marriage or civil union); or

    • (b) in the case of an application other than a joint application,—

      • (i) the applicant consents to the order being made in his or her absence; and

      • (ii) the application is accompanied by the affidavit required by section 38(2)(d) of the Family Proceedings Act, namely an affidavit in form FP 12 (affidavit to accompany application by one party for order dissolving marriage or civil union).

    (2) The Registrar may make an order dissolving a marriage or civil union to which an application on the Registrar's list of section 37 applications relates if—

    • (a) the respondent does not file a notice of defence to the application within the time specified in or under rule 41; and

    • (b) the respondent does not file a request for an appearance in relation to the application within the time specified by or under rule 346; and

    • (c) by the time at which the Registrar processes the list of section 37 applications on which the application appears, the Registrar has not received a request for a hearing in form FP 20.

    (3) The Registrar must not make an order dissolving a marriage or civil union to which an application on the Registrar's list of section 37 applications relates if—

    • (a) the respondent files a notice of defence to the application on the Registrar's list of section 37 applications within the time specified in or under rule 41; or

    • (b) the respondent files a request for an appearance in relation to the application on the Registrar's list of section 37 applications within the time specified by or under rule 346; or

    • (c) by the time at which the Registrar processes the list on which the application appears, the Registrar has received a request for a hearing in form FP 20.

    (4) If subclause (3) applies, the Registrar must—

    • (a) fix a date and time for the hearing of the application; and

    • (b) give the parties notice of the date and time fixed for the hearing of the application.

    (5) The Registrar may, by telephone or any other means the Registrar thinks fit, change, to a later date, the date fixed for the hearing under subclause (4).

    Compare: SR 1981/261 r 32D

    The heading to rule 355 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

    Rule 356 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage wherever it appears.

356 Request for hearing after order dissolving marriage or civil union made and before it takes effect as final order
  • (1) A party who, after an order dissolving a marriage or civil union is made and before the order takes effect as a final order, seeks a hearing under section 38(3) of the Family Proceedings Act must file in the Court a request for a hearing in form FP 20.

    (2) If subclause (1) applies, the Registrar must—

    • (a) fix a date and time for the hearing; and

    • (b) issue for service on the other party a copy of the request for a hearing.

    (3) The Registrar may, by telephone or any other means the Registrar thinks fit,—

    • (a) change, to a later date, the date fixed, under subclause (2), for the hearing of the application; and

    • (b) authorise the party who seeks a hearing to make corresponding alterations in the documents to be served on the other party.

    Compare: SR 1981/261 r 32E

    The heading to rule 356 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

    Subclause (1) was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

357 Proof of service of certain applications
  • (1) This rule applies to an application if it is—

    • (a) an application under section 27 of the Family Proceedings Act (for a declaration whether a marriage or civil union is valid or a marriage or civil union has been validly dissolved); or

    • (b) an application under section 29 of the Family Proceedings Act (for an order declaring a marriage or civil union to be void ab initio); or

    • (c) an application under section 37 of the Family Proceedings Act (for an order dissolving a marriage or civil union) and that is not on the Registrar's list of section 37 applications.

    (2) A Court may hear the application only if it is satisfied that—

    • (a) the application is a joint application for an order dissolving the marriage or civil union; or

    • (b) service on the respondent has been altogether dispensed with; or

    • (c) the respondent has taken some step in the proceedings; or

    • (d) an affidavit in form G 8 (see rule 127) has been filed showing that the respondent has been personally served with the documents issued for service in relation to the application; or

    • (e) an affidavit has been filed showing that the respondent has been otherwise duly served in accordance with the directions of the Court.

    (3) If an order in form G 9 is made under rule 126 for substituted service of the application by advertisement (for example, in form G 10), the affidavit of advertising (see rule 128) must be in form G 11.

    Compare: SR 1981/261 r 44

    Rule 357 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage wherever it appears.

    Subclause (2)(e) was amended, as from 1 July 2004, by rule 5 Family Courts Amendment Rules 2004 (SR 2004/165) by omitting the words or Judge.

358 Proof of service of applications on Registrar's list of section 37 applications
  • A Registrar must not make an order dissolving a marriage or civil union to which an application on the Registrar's list of section 37 applications relates unless the Registrar is satisfied that—

    • (a) the application is a joint application; or

    • (b) service on the respondent has been altogether dispensed with; or

    • (c) the respondent has taken some step in the proceedings; or

    • (d) an affidavit in form G 8 (see rule 127) has been filed showing that the respondent has been personally served with the documents issued for service in relation to the application; or

    • (e) an affidavit has been filed showing that the respondent has been otherwise duly served in accordance with the directions of the Court or Judge.

    Compare: SR 1981/261 r 44A

    Rule 358 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

359 Intervention in proceedings relating to status of marriage or civil union
  • (1) If the Attorney-General is requested, under section 161 of the Family Proceedings Act, to appear in proceedings under Part IV of that Act, these rules apply as if the Attorney-General were a party to the proceedings unless the Court or a Judge directs otherwise.

    (2) A copy of an affidavit filed by the Attorney-General under section 161 of the Family Proceedings Act must be served by the Registrar on every other party to the proceedings as soon as practicable after it is filed.

    Compare: SR 1981/261 r 57

    The heading to rule 359 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

360 Sealing and service of order dissolving marriage or civil union: order made by Judge in defended proceedings
  • (1) The Registrar must—

    • (a) seal an order dissolving a marriage or civil union made in defended proceedings at the expiration of 1 month after the date on which the order was made; and

    • (b) take all reasonable steps to serve a copy of the order on the parties.

    (2) However, subclause (1) does not apply if section 42(2) or (3) of the Family Proceedings Act requires that the order not take effect as a final order (for example, because an appeal against the order is pending).

    Compare: SR 1981/261 r 58(1)

    The heading to rule 360 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

    Subclause (1)(a) was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

361 Sealing and service of order dissolving marriage or civil union: order made by Judge in undefended proceedings
  • The Registrar must—

    • (a) seal an order dissolving a marriage or civil union made by a Judge in undefended proceedings as soon as the order is made; and

    • (b) serve a copy of the order on the parties, whether or not the respondent has filed an address for service.

    Compare: SR 1981/261 r 58(2)

    The heading to rule 361 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

    Subclause (1)(a) was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

362 Sealing and service of order dissolving marriage or civil union: order made by Registrar
  • (1) This rule applies to an order dissolving a marriage or civil union made by a Registrar.

    (2) The Registrar must notify each party of—

    • (a) the date on which the order was made; and

    • (b) the provisions of section 38(3) of the Family Proceedings Act (which relates to a party seeking a hearing before the order takes effect as a final order).

    (3) The notice required under subclause (2) must be given—

    • (a) by letter sent by ordinary post and addressed to the party at the party's address for service (if given); or

    • (b) if no address for service has been given and the party resides in New Zealand, by letter sent by ordinary post and addressed to the party at the party's last known or usual place of residence or business in New Zealand; or

    • (c) if no address for service has been given and the party resides overseas, by letter sent by airmail addressed to the party at the party's last known or usual place of residence or business overseas.

    (4) The Registrar must—

    • (a) seal the order at the expiration of 1 month from the date on which the order was made; and

    • (b) serve a copy of the order on the parties, whether or not the respondent has filed an address for service.

    (5) However, subclause (4) does not apply if section 42(4) of the Family Proceedings Act requires that the order not take effect as a final order.

    Compare: SR 1981/261 r 58(3)

    The heading to rule 362 was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

    Subclause (1) was amended, as from 26 April 2005, by section 8(1) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words or civil union after the word marriage.

362A Costs of contravention of parenting order
  • A party to a parenting order (party A) who applies under section 71 of the Care of Children Act for an order requiring another party to the parenting order (party B) to pay the costs incurred by party A because of party B's contravention of the parenting order must include with that application an affidavit setting out details of those costs.

    Rule 362A was inserted, as from 1 July 2005, by rule 29 Family Courts Amendment Rules 2005 (SR 2005/101).

363 Registration of orders made in Commonwealth or designated countries
  • (1) A certified copy of an order is registered under section 136 of the Family Proceedings Act by the Registrar entering the particulars in the records of the Court.

    (2) The Registrar must—

    • (a) enter the particulars in the same manner as if the order had been made by the Family Court which is a division of the District Court in which the order is registered; and

    • (b) write and sign, under that entry and on the copy of the order, the following minute Registered in the District Court at [ place ] in New Zealand on [ date of registration ] under section 136 of the Family Proceedings Act 1980.

    Compare: SR 1981/261 r 60

364 Notice of registration of orders made in Commonwealth or designated countries
  • (1) The Registrar of the Court in which an order is registered under section 136 of the Family Proceedings Act must cause notice of the registration in form FP 21 to be served on the respondent.

    (2) However, a failure to serve a notice of the registration does not affect—

    • (a) the validity of the registration; or

    • (b) any proceedings in relation to the order.

    Compare: SR 1981/261 r 61

365 Order on application for confirmation of provisional order
  • (1) If a Court has heard an application for confirmation of a provisional order, under section 138 or section 139 of the Family Proceedings Act, the Registrar must send to the Court that made the provisional order—

    • (a) a copy of the confirming order if the provisional order has been confirmed (with or without modification); or

    • (b) in any other case, a copy of the decision.

    (2) If the provisional order has been confirmed (with or without modification), the copy of the confirming order must be accompanied by a copy of any order under section 138(9) of the Family Proceedings Act for the payment of a sum for past maintenance.

    (3) A decision that the provisional order not be confirmed must give the reasons for the decision.

    (4) If the decision is that the case be remitted for the taking of further evidence, a notice setting out the matters on which further evidence is required must be sent to the Court that made the provisional order.

    Compare: SR 1981/261 r 66

366 Payments under registered or confirmed order
  • (1) Subclause (2) applies to all payments due under an order registered or confirmed under the Family Proceedings Act (except an order confirmed under section 139 of that Act).

    (2) The payments must, unless the person to whom any money is payable in accordance with the order elects otherwise under section 70 of the Child Support Act 1991, be paid to the Commissioner of Inland Revenue in accordance with that Act.

    Compare: SR 1981/261 r 67

367 Joinder of other parent in proceedings under Family Proceedings Act
  • (1) If, on the application of one parent or on the Court's own initiative, another parent is joined as a respondent under section 145H of the Family Proceedings Act (which relates to maintenance orders in respect of children in Convention countries), the Court may adjourn the hearing for a time, and on any terms, the Court considers appropriate to enable the party who has been joined to be served with—

    • (a) a notice to respondent in form FP 16, which applies with all necessary modifications; and

    • (b) a copy of the application under section 145E of the Family Proceedings Act (that is, for a maintenance order in respect of a child in a Convention country).

    (2) However, the Court may dispense with service of the notice and of a copy of the application if—

    • (a) the joinder is made at the hearing; and

    • (b) the party joined is present at the hearing; and

    • (c) the Court is satisfied that the party joined will not be prejudiced.

    Compare: SR 1981/261 r 54

368 Provisional orders for confirmation overseas
  • (1) A provisional maintenance order under section 147 of the Family Proceedings Act must be in form FP 22.

    (2) Subclause (3) applies to a statement under section 147(6)(c) of the Family Proceedings Act of the grounds on which the making of the provisional maintenance order might have been opposed if the respondent had been duly served with notice of the application for the order and had appeared at the hearing.

    (3) The statement may be in the form of a certificate signed by the Judge hearing the application for the order.

    Compare: SR 1981/261 r 62

369 Procedure on arrest of respondent other than in respect of an offence
  • (1) This rule applies if a respondent is arrested and brought before the Court on a warrant issued other than in respect of an offence.

    (2) The Court before which the respondent is brought may adjourn the hearing to another time and place and—

    • (a) allow the respondent to go at large; or

    • (b) subject to any conditions the Court thinks proper in the circumstances, grant the respondent bail—

      • (i) on the respondent's own recognisance; or

      • (ii) with a number of sureties that the Court thinks fit, and for an amount that the Court considers proper in the circumstances; or

    • (c) if the Court considers that the attendance of the respondent at the hearing is necessary in the interests of justice and that the respondent is unlikely to appear at the hearing, or may attempt to leave New Zealand with intent to defeat the course of justice, remand the respondent in custody for—

      • (i) a period of not longer than 8 days; or

      • (ii) a period longer than 8 days, but only if the respondent consents to that period.

    (3) Any such adjournment, bail, or remand may be extended or renewed from time to time by the Court until the proceedings in respect of which the warrant was issued are finally disposed of by the Court.

    (4) If a respondent is remanded in custody without bail being granted, or if the respondent is granted bail but the bond is not entered into immediately, the Registrar must issue a warrant in form FP 29. If bail has been granted, the Registrar must certify on a warrant of that kind the terms of the bail.

    (5) A bond to be taken under subclause (2) must be in form FP 30 and may be entered into before a Judge or Registrar. It is not necessary for all parties to be present at the same time or at the same place, and more than 1 form of bond may be signed. The Registrar of the Court must give the parties entering into a bond of that kind notice of its terms.

    (6) If all the parties to a bond have entered into it, then, if a warrant has been issued under subclause (4), a warrant of deliverance in form FP 31 may be issued by a Judge or Registrar who knows that all the parties to the bond have entered into it and the warrant may be sent to the manager of the prison in which the respondent is detained.

    (7) A Judge may issue a warrant to arrest the respondent and bring the respondent before a Court if—

    • (a) the respondent was allowed to go at large but failed to attend at the time and place to which the hearing had been adjourned; or

    • (b) the respondent was released on bail but—

      • (i) failed to attend personally at the time and place specified in the bond; or

      • (ii) failed to comply with any condition fixed in the bond.

    (8) Section 38 of the Bail Act 2000 applies so far as applicable and with all necessary modifications to a respondent released on bail who fails to comply with the bond issued.

    Compare: SR 1981/261 r 74; SR 1992/58 r 57

    Subsection (6) was amended, as from 1 July 2005, by rule 30 Family Courts Amendment Rules 2005 (SR 2005/101) by substituting the words manager of the prison for the words Superintendent of the penal institution.

370 Copies of orders varying maintenance orders
  • (1) If, in proceedings under the Property (Relationships) Act 1976, the Court varies, extends, suspends, or discharges a maintenance order made by another Court, the Registrar of the Court must send the Registrar of the other Court a copy of the order of variation, extension, suspension, or discharge.

    (2) The Registrar of the other Court must note the Court records accordingly.

    Compare: SR 1981/261 r 76

371 Copies of orders for Commissioner of Inland Revenue
  • A Registrar must, no later than the 28th day after the day on which they are made, send to the Commissioner of Inland Revenue a certified or sealed copy of the following orders:

    • (a) any maintenance order or interim maintenance order made under Part VI of the Family Proceedings Act that provides for payment to be made at an annual rate of $520 or more:

    • (b) any maintenance order made against any person by any Court in a Commonwealth or designated country that is registered in accordance with rule 363 or confirmed in New Zealand under the Family Proceedings Act (other than an order confirmed under section 139 of that Act):

    • (d) any order made under Part VI or Part VIII of the Family Proceedings Act in respect of an application under section 145 of that Act.

    Compare: SR 1981/261 r 76A

372 Enforcement of maintenance under section 259 of Child Support Act 1991
  • These rules, as supplemented or modified by rules 373 to 376, apply in respect of the enforcement, under section 259 of the Child Support Act 1991, of the liability of a person to pay maintenance under the Family Proceedings Act which is due but unpaid at the close of 30 June 1992.

    Compare: SR 1981/261 r 81

373 Applications without notice
  • (1) Applications under the following sections of the Family Proceedings Act may, under rule 335(1)(i), be made and granted without notice:

    • (a) section 109 (variation, suspension, or discharge of attachment order):

    • (b) section 114 (variation or discharge of deduction notice):

    • (d) section 121 (receiving order, where a copy of the charging order has been served on the respondent):

    (2) An application without notice under section 134 of the Family Proceedings Act must be in form FP 41.

    (3) Rule 335(4) (which relates to applications to vary or rescind an order made on an application without notice) applies to an order made on an application referred to in subclause (1).

    Compare: SR 1981/261 r 82

374 Order of priority of distress warrants
  • (1) The Registrar must note on a request for the issue of a distress warrant the precise time of the request.

    (2) If a distress warrant is issued, the Registrar must endorse the warrant with the precise time of the request.

    (3) If more than 1 distress warrant is issued against the same person, the warrants must be executed in the order of the times of the making of the requests noted under subclause (1).

    (4) A warrant issued under section 103 of the Family Proceedings Act must rank in order of priority with a distress warrant issued under the District Courts Rules 1992.

    Compare: SR 1981/261 r 83; SR 1992/58 r 55

375 Application of rule 369
  • In its application to the enforcement, under section 259 of the Child Support Act 1991, of the liability of a person to pay maintenance under the Family Proceedings Act which is due but unpaid at the close of 30 June 1992, rule 369 applies subject to sections 127(3) and 128(6) of the Family Proceedings Act.

    Compare: SR 1981/261 r 84

376 Bond by receiver
  • A person appointed under section 121 of the Family Proceedings Act as a receiver of property to which a respondent is entitled must, before acting as receiver, give security for the due administration of the receivership to the Registrar's satisfaction unless the person is—

    • (a) Public Trust (as defined in section 4 of the Public Trust Act 2001); or

    • (b) the Maori Trustee; or

    • (c) a trustee company as defined in section 2 of the Trustee Companies Act 1967.

    Compare: SR 1981/261 r 85; SR 1992/58 r 58

Family Protection Act 1955 and Law Reform (Testamentary Promises) Act 1949

377 Interpretation
378 Forms
  • The forms set out in Schedule 7 must be used in proceedings under the Acts.

379 Naming of respondent
  • (1) The only respondent to be named in an application made under either of the Acts is the personal representative of the deceased person against whose estate the claim is brought.

    (2) A person need not be named as a respondent in proceedings under either of the Acts if the person only became a respondent because the Court directed that the person be served.

    Compare: SR 1992/109 r 443

380 Who must be served with copy of application or interlocutory application under Acts
  • (1) Section 4(3) of the Family Protection Act affects who must be served with a copy of an application under that Act.

    (2) An applicant to proceedings under either or both of the Acts must file an interlocutory application without notice for directions as to service if—

    • (a) that is required by law; or

    • (b) the applicant is in doubt as to the person on whom the application must be served; or

    • (c) an order is sought that a person represent a person, or class of persons, who should be served; or

    • (d) the Court directs the applicant to do so; or

    • (e) the Registrar directs the applicant to do so.

    (2A) An interlocutory application filed under subclause (2) must also seek such orders for representation as may be required.

    (3) An application under subclause (2) must—

    • (a) be supported by the information specified in rule 381:

    • (b) specify the directions that the applicant considers appropriate:

    • (c) be accompanied by a memorandum signed by the applicant's lawyer setting out the reasons why the directions are considered appropriate.

    Compare: SR 1992/109 r 444(1), (4)

    Rule 380(2): amended, on 3 August 2009, by rule 8(1) of the Family Courts Amendment Rules 2009 (SR 2009/185).

    Rule 380(2)(d): amended, on 3 August 2009, by rule 8(2) of the Family Courts Amendment Rules 2009 (SR 2009/185).

    Rule 380(2)(e): added, on 3 August 2009, by rule 8(2) of the Family Courts Amendment Rules 2009 (SR 2009/185).

    Rule 380(2A): inserted, on 3 August 2009, by rule 8(3) of the Family Courts Amendment Rules 2009 (SR 2009/185).

381 Information to be provided in support of application under rule 380(2)
  • (1) If an application is made under rule 380(2), the applicant must provide information to the Court in support of the application, by affidavit or some other means, that will enable the Court to decide—

    • (a) which persons or classes of persons are interested in the applicant's claim:

    • (b) which persons or classes of persons may be adversely affected by the applicant's claim:

    • (c) by what means the interests of each person or class of persons referred to in paragraph (a) or paragraph (b) may be adequately represented.

    (2) The information to be provided under subclause (1) is—

    • (a) the date of the death of the deceased and the date of grant of probate or letters of administration:

    • (b) whether the deceased died testate or intestate and, if testate, a copy of his or her last will with any codicils:

    • (c) the value of the estate, so far as it is known to the applicant:

    • (d) the names, addresses, occupations, and ages of the beneficiaries under the will or persons entitled on the intestacy, as the case requires:

    • (e) if the proceedings are under the Family Protection Act, the names, addresses, occupations, and ages of the persons of each class entitled to claim under that Act:

    • (f) any other relevant information.

    Compare: SR 1992/109 r 444(2), (3)

382 Order for directions as to service or for representation
  • (1) On an application being made under rule 380(2) for directions as to service, the Court or Registrar may make any order for service that the Court or Registrar thinks fit.

    (1A) On an application being made under rule 380(2) for orders for representation, the Court may make any order for representation that it thinks fit and, in particular, may make orders regarding the representation of—

    • (a) a minor; or

    • (b) an incapacitated person; or

    (2) An appointment under subclause (1A) may be made without the appointment of a representative under rule 90 if the Court considers that an appointment of that kind is not necessary.

    (3) The effect of every order for directions as to service or for representation made under this rule must be noted on the list (see rule 20(1)(a)) of names and addresses of the persons on whom the application is required or intended to be served.

    Compare: SR 1992/109 r 444(5)

    Rule 382(1): substituted, on 3 August 2009, by rule 9(1) of the Family Courts Amendment Rules 2009 (SR 2009/185).

    Rule 382(1A): inserted, on 3 August 2009, by rule 9(1) of the Family Courts Amendment Rules 2009 (SR 2009/185).

    Rule 382(2): amended, on 3 August 2009, by rule 9(2) of the Family Courts Amendment Rules 2009 (SR 2009/185).

383 Applications without notice
  • (1) An affidavit verifying the facts alleged in the application must be sworn by, or on behalf of, the applicant and filed with the other documents (see rule 20(1)(c)) required to be filed to make an application under either of the Acts if—

    • (a) service of the application is not required by the Act concerned or any of these rules; or

    • (b) service has been dispensed with by the Court.

    (2) In the affidavit, the deponent must depose—

    • (a) that, so far as the facts alleged in the application relate to matters within his or her personal knowledge, they are true; and

    • (b) that, so far as the facts alleged in the application relate to matters outside his or her personal knowledge, he or she believes them to be true.

    (3) Despite subclause (2), the Court may require a fact outside the deponent's personal knowledge to be proved by an affidavit of a person having personal knowledge of that fact.

    Compare: SR 1992/109 r 445

384 Joining in proceedings under Acts
  • (1) A respondent in proceedings under either of the Acts who wishes to claim against the same estate must make an application for an order under the Act concerned.

    (2) If a respondent makes an application in accordance with subclause (1), these rules apply—

    • (a) as if the respondent were an applicant; and

    • (b) as if the applicant were a respondent.

    (3) It is not necessary for a person making an application in accordance with subclause (1) to apply for directions for service or to comply with rule 20(1)(a) by listing on the application form the names and addresses of the persons to be served, but the person must serve the documents issued for service in relation to the application and accompanying affidavits—

    • (a) on the personal representative; and

    • (b) on the applicant; and

    • (c) on all other persons on whom the applicant has been directed to effect service.

    (4) If, in proceedings under either of the Acts, a person who has not been directed to be served wishes to claim against the same estate, he or she must make an application for an order under the Act concerned and, after that, subclauses (2) and (3) apply as if that person were a respondent in the proceedings.

    Compare: SR 1992/109 r 446

385 Joinder of claims and consolidation
  • (1) Claims under the Family Protection Act and the Testamentary Promises Act may be joined in 1 application, whether or not the claims are made in the alternative, and rule 25(3) applies accordingly.

    (2) A surviving spouse or partner (the survivor) may, under rule 391(1), include a claim under the Property (Relationships) Act 1976 against the estate of the deceased spouse or partner in any proceedings against that estate under either or both of the Acts.

    (3) Rules 135 and 136 (consolidation of proceedings) may be applied if separate proceedings are pending against the estate of a deceased person under any of the Acts and the Property (Relationships) Act 1976.

    Compare: SR 1992/109 r 447

    Subclause (2) was amended, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3) by omitting the words de facto in both places where they appeared.

386 Notice of intention to appear or notice of defence
  • A respondent in proceedings under either or both of the Acts may, within the time specified in or under rule 41, file in the Court and serve on the other parties, under rule 40,—

    • (a) a notice of intention to appear; or

    • (b) a notice of defence.

387 Affidavits in support or in opposition
  • (1) A respondent who has filed a notice of intention to appear may serve affidavits in support of the matters referred to in the notice of intention to appear—

    • (a) at the time of the serving of the notice, without seeking the leave of the Court; or

    • (b) at any time after the serving of the notice, with the leave of the Court.

    (2) Subject to subclause (1), a respondent may not file an affidavit in opposition to the application of an applicant or a claimant under rule 384 unless the respondent has filed and served a notice of intention to appear or a notice of defence.

    (3) Any affidavit filed by the respondent after the filing of a notice of defence or notice of intention to appear must be confined to matters put in issue by pleadings or by the notice of intention to appear.

    Compare: SR 1992/109 rr 450, 451

Property (Relationships) Act 1976

388 Interpretation
  • In this rule and rules 389 to 404, unless the context otherwise requires,—

    affidavit of assets and liabilities means an affidavit required to be filed and served under rule 398(1) or (2)

    applicant

    • (a) means a person who makes an application for an order or declaration under the Act; and

    • (b) in proceedings under the Act of the kind referred to in section 10D(1) of the Act (that is, proceedings commenced while both spouses or partners were alive, if 1 or both of them die), includes the personal representative of a deceased spouse or partner who made the application

    option A means the option set out in section 61(2) of the Act (that is, to elect to make an application under the Act for a division of the relationship property)

    option B means the option set out in section 61(3) of the Act (that is,—

    • (a) to elect not to make an application under the Act for a division of the relationship property; and

    • (b) if the surviving spouse or partner is a beneficiary under the will of the deceased spouse or partner, to receive that property; and

    • (c) if the surviving spouse or partner is entitled to a beneficial interest on the intestacy or partial intestacy of the deceased spouse or partner, to receive that interest)

    respondent

    • (a) means, in relation to proceedings for an order or declaration under the Act, a person intended to be served with notice of the application for the order or declaration; and

    • (b) in proceedings under the Act commenced, after the death of 1 spouse or partner, by the surviving spouse or partner, includes the personal representative of the deceased spouse or partner; and

    • (c) in proceedings under the Act of the kind referred to in section 10D(1) of the Act (that is, proceedings commenced while both spouses or partners were alive, if 1 or both of them die), includes the personal representative of a deceased spouse or partner on whom notice of the application concerned was served.

    Rule 388 was amended, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3) by omitting the words de facto wherever they appeared.

389 Forms
  • The forms set out in Schedule 8 must be used in proceedings under the Act.

390 Filing of applications
  • Unless an enactment requires otherwise, an application under the Act may be filed—

    • (a) in the Court nearest to the place where the respondent or 1 of the respondents resides or carries on business; or

    • (b) in the Court nearest to the place where the subject matter of the proceedings arose wholly or in part; or

    • (c) if no respondent is named in the application, in the Court nearest to the place where the applicant or 1 of the applicants resides or carries on business.

    Compare: SR 2001/380 r 7

391 Joinder of claims and consolidation
  • (1) A surviving spouse or partner (the survivor) may include a claim under the Act against the estate of the deceased spouse or partner in any proceedings against that estate under—

    • (c) both of those Acts.

    (2) For the purposes of subclause (1),—

    • (a) the survivor need not also claim under either or both of the Acts referred to in subclause (1)(a) and (b); but

    • (b) if the survivor does claim under either or both of those Acts, his or her claim under the Act need not be made in the alternative.

    (3) Rules 135 and 136 (consolidation of proceedings) may be applied if separate proceedings are pending against the estate of a deceased person under any 1 or more of the Acts referred to in subclause (1).

    Compare: SR 1992/109 r 447

    Subclause (1) was amended, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3) by omitting the words de facto in both places where they appeared.

392 Affidavit in support
  • (1) An applicant for an order or declaration under the Act must file with the other documents required to be filed to make the application (see rule 20(1)(c)) an affidavit that includes information about any of the following matters that are relevant in the particular case:

    • (a) the date of the marriage or civil union, or the date by which the de facto relationship had begun, and the duration of the marriage, civil union, or de facto relationship:

    • (b) the parties and their property:

    • (c) children of the marriage, civil union, or de facto relationship:

    • (d) proposed arrangements for the division of property:

    • (e) if the application is one that relates to the estate of a deceased spouse or partner,—

      • (i) whether the deceased died testate or intestate; and

      • (ii) whether the survivor of the deceased spouse or partner has chosen option A or option B:

    • (f) matters in issue between the parties.

    (2) The affidavit may have annexed to it a copy of any document relied on by the applicant in support of the application (for example, if the survivor has chosen option A, a copy of the notice required to be lodged by section 65(2)(c) of the Act).

    (3) Unless a Judge or Registrar directs otherwise, a respondent must, within 20 working days of service on the respondent of the application under the Act, file and serve on the applicant an affidavit sufficient to inform the Court of the facts relied on by the respondent.

    (4) The affidavit to be filed and served by the respondent—

    • (a) must include information about any of the matters listed in subclause (1)(a) to (f) that are relevant in the particular case; and

    • (b) may have annexed to it a copy of any document relied on by the respondent.

    Compare: SR 2001/380 r 8

    Subclause (1)(a) was substituted, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3).

    Subclause (1)(c) was amended, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3) by inserting the words , civil union, after the word marriage.

    Subclause (1)(e) was amended, as from 26 April 2005, by section 8(2) Relationships (Statutory References) Act 2005 (2005 No 3) by omitting the words de facto in both places where they appeared.

393 Notice of defence
  • A person served with an application under the Act may, within the time specified in or under rule 41, file in the Court and serve on the applicant, under rule 40, a notice of defence.

394 Who must be given notice of applications under Act
  • Sections 37 and 92 of the Act affect who must be given notice of an application under the Act.

395 Variation or recision of order made on application without notice
  • If an order is made against a party or person on an application without notice, under rule 24(2), the party or person may, at any time, apply, under rule 34(c), to vary or rescind the order.

    Compare: SR 2001/380 r 12(2)

396 Copies of orders varying maintenance orders
  • Rule 370 applies if, in proceedings under the Act, the Court varies, extends, suspends, or discharges a maintenance order made by another Court.

397 Applications under Act to which rules 398 and 399 apply
  • (1) Rules 398 and 399 apply to the following applications:

    • (b) an application made for any other order or declaration under the Act, but only if a Judge orders that rules 398 and 399 apply to the application.

    (2) An order under subclause (1)(b) may be made on the Judge's own initiative or on an interlocutory application for the purpose.

    Compare: SR 2001/380 r 13

398 Affidavit disclosing assets and liabilities
  • (1) If this rule applies to an application, the applicant must, within 20 working days of filing the application or any longer time that a Judge may allow on an interlocutory application for the purpose,—

    • (a) file an affidavit of assets and liabilities in form P(R) 1 in the Court in which the application was filed; and

    • (b) effect personal service of a copy of the affidavit on the respondent to the application.

    (2) The respondent to an application to which this rule applies must, within 20 working days of service on the respondent of the copy of the affidavit referred to in subclause (1)(b) or any shorter or longer time that a Judge may specify on an interlocutory application for the purpose,—

    • (a) file an affidavit of assets and liabilities in form P(R) 1 in the Court in which the applicant's affidavit was filed under subclause (1)(a); and

    • (b) serve a copy of the affidavit on the applicant.

    (3) If the respondent to an application to which this rule applies has not, at the time the respondent files an affidavit of assets and liabilities, already filed an address for service, that affidavit must state an address for service, in accordance with rule 39(2).

    Compare: SR 2001/380 r 14

399 Insufficient affidavit of assets and liabilities
  • (1) Subclause (2) applies to a party to an application to which this rule applies (party A) if—

    • (a) the other party to the application (party B) files an affidavit of assets and liabilities, purporting to set out the property of party B that is or may be in issue in the proceedings; but

    • (b) party A believes on reasonable grounds that the affidavit does not accurately set out the nature and value of the property of party B that is or may be in issue in the proceedings.

    (2) Party A may apply to the Court, either without notice or on notice, for—

    • (a) an order requiring party B to file a sufficient affidavit of assets and liabilities; or

    • (b) an order, under section 38(1) of the Act, for an inquiry into the nature and value of the property of party B that is or may be in issue in the proceedings.

    Compare: SR 2001/380 r 15

400 Failure to file affidavit of assets and liabilities or sufficient affidavit of assets and liabilities
  • (1) Subclause (2) applies to an applicant if a respondent who is required under rule 398(2) to file an affidavit of assets and liabilities—

    • (a) fails to file an affidavit of assets and liabilities; or

    • (b) fails to file a sufficient affidavit of assets and liabilities.

    (2) The applicant may apply, either without notice or on notice, to the Court for—

    • (a) an order requiring the respondent to attend at a time and place stated in the or