Family Courts Rules 2002

  • This version includes a correction to rule 130(1) made under section 25(j)(iii) and 25(j)(iv) of the Legislation Act 2012.

Reprint as at 1 September 2015

Coat of Arms of New Zealand

Family Courts Rules 2002

(SR 2002/261)

Silvia Cartwright, Governor-General

Order in Council

At Wellington this 16th day of September 2002

Present:
Her Excellency the Governor-General in Council

Note

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

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

These rules are administered by the Ministry of Justice.

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

1Title
2Commencement
3Purpose of these rules
4Overview of these rules
5Application of these rules
5ALimited application of District Courts Rules 2014
6Special rules for proceedings under certain family law Acts
7No special rules for proceedings under certain family law Acts
8Interpretation
9Words and expressions defined in Acts
10References to prescribed forms
11Requirements imposed on Registrars by rules
12Powers of Registrars under rules
13Practices must be consistent
14Directions in case of doubt
15Matters not expressly provided for in rules
16Judges may give directions to regulate court’s business
17Failure to comply with rules
18Overview of this Part
19How proceedings are commenced
20Documents to be filed to make application
21Special rules relating to affidavits
22Special rules relating to other documents
23Applications generally to be made on notice
24Applications that may be made without notice
25Two or more applications may be made together
26Documents relating to earlier proceedings
27Documents or forms for filing to comply with requirements
28Applications to be filed in proper court
29How to file documents in court
30Procedure if applications presented or accepted for filing in wrong court
31Procedure if applications presented for filing but incomplete or otherwise not in order
32Procedure if application on notice accepted for filing
33Procedure if application without notice accepted for filing
34Orders made on applications without notice
35Documents to be served if applications on notice
36Who must be served with applications on notice
37Special rules relating to service
38Service of applications under certain Acts
39Persons served with applications to give address for service
40Notice of defence or notice of intention to appear
41Time within which notice of defence, or notice of intention to appear, to be filed and served
42Non-compliance with rule 41
43Appearance under protest to jurisdiction
44Appearance for ancillary purposes
45Appearance reserving rights
46Forms for entering appearance
47Getting more information or getting admissions
48Evidence at hearing generally to be by affidavit
49Procedure when evidence given by affidavit
50Witness summons
51Witness entitled to expenses
52Conferences
52AJudge may require Registrar to fix date and time for hearing of application
52BParties may require Registrar to fix date and time for hearing of application
52CParties to give Registrar information affecting duration of hearing
52DOnly certain steps may be taken after notice of hearing date given
53Court and Chambers
54Ascertaining wishes or views of child or young person
55Procedure if some or all parties do not appear
56Judgment following non-appearance may be set aside
57Procedure if all parties appear
58What court may do at end of hearing
59Rehearings
60Rights of appeal under family law Acts
61Overview of this Part
62Forms
62AApproved forms for use in proceedings to which Part 5A applies
62ABApproved forms for use in proceedings under Domestic Violence Act 1995
63Documents to which rules 64 to 69 apply
64Paper
65Contents must be only on 1 side of paper
66Margin
67Numbers
68Division into paragraphs
69Fastening and numbering of pages
70Contents must be legible
71Signature to be original
72Front page
73Heading
74Front page must comply with requirements of rule 82
75Filing documents
76Ways documents may be presented for filing
77Amendment of application form before it is served
78Amending documents in proceedings
79Amendment of application form, or notice of defence or intention to appear
80Party need not have lawyer
81Lawyers who are, or act for, adverse parties
82Memorandum to be on front page with first document filed
83Lawyer filing documents on behalf of party
83AAuthority of certain Australian solicitors in certain trans-Tasman proceedings: District Courts Rules 2014 apply
84Lawyer’s warranty as to authorisation to file documents
85Lawyer may sign certain documents on behalf of party
86Lawyer acting in person
87Change of representation
88Court may declare that lawyer no longer acting for party
89Interpretation
90Minor must be represented by next friend or litigation guardian
90AMinor may apply to take part in proceedings without next friend or litigation guardian
90BAppointment of next friend for minor
90CAppointment of litigation guardian for minor
90DAppointment of litigation guardian for person to whom section 11 of Domestic Violence Act 1995 applies
90EIncapacitated person must be represented by litigation guardian
90FAppointment of litigation guardian for incapacitated person
90GNotification of appointment
90HPerson subject to property order must be represented by manager
91Managers under Protection of Personal and Property Rights Act 1988
92Family Courts appointing guardians ad litem or managers for proceedings in District Courts
93Representatives and managers may sign documents and swear affidavits on behalf of party
94Representative capacity
95Responsibility of representative for costs
96Responsibility of manager for costs
97Retirement, removal, or death of representative
98When further steps to be taken by party and not by representative or manager
99Notices
100Notices to be given by Registrar
101Documents to be served
102How documents to be served
103Service of copies
104Certain documents must not be served on certain non-working days
105Certain documents to be served by personal service
106Who may carry out personal service
107Personal service
108Personal service on spouse or partner
109Personal service if person to be served on ship
110Personal service on serving member of armed forces
111Personal service on prisoner
112Personal service on minors
113Personal service: District Courts Rules 2014 apply
114Service on lawyer on behalf of person
115Service at address for service
116Address for service on party or other person
117Change of address for service
118Methods of service if address for service is lawyer’s office
119When and how documents under rule 118 to be treated as served
120Lawyer must acknowledge document faxed or emailed
121Address for service if lawyer no longer acting for party
121AWhen and how documents under rule 102(2)(ca) to be treated as served
122Service under agreement
123Service on representative or manager
124Directions about service on incapacitated persons
125Service on party not invalid just because person incapable of taking part in proceedings
126Order dispensing with or changing service required
127Proof of personal service
128Proof of substituted service effected by advertisement
129Attaching copy of document to affidavit of service or certificate of service
130Service on absentee: District Courts Rules 2014 apply
131Māori and other languages: District Courts Rules 2014 apply
132Changing times by which things to be done
133Striking out and adding parties
134Change of parties: District Courts Rules 2014 apply
135When order may be made
136Application of rule 135
137Interrogatories: District Courts Rules 2014 apply
138Notice to admit facts
139Further particulars
140Order for discovery before proceedings commenced
141Order for discovery after proceedings commenced
142Contents of affidavit of documents
143Order for particular discovery against non-party after proceedings commenced
144Incorrect affidavit to be amended
145Failure to include document
146Notice to produce for inspection
147Order for production for inspection
148Costs of production by non-party
149Right to make copies
150Production of document to court
151Inspection to decide validity of claim or objection
152Admission of documents discovered
153Notice to produce documents
154Notice to admit documents
155Restricted effect of admission
156Use of affidavits
157Person refusing to make affidavit
158Form and contents of affidavit
159Exhibits to affidavits
160Affidavit in language other than English
161Alterations or additions to, or erasure from, affidavit
162Irregularity in form of affidavit
163Service copies of affidavits
164Affidavit may be sworn on any day
165Affidavits made on behalf of corporations
166Affidavits by 2 or more deponents
167Affidavit by blind, disabled, or illiterate deponent
168Authority to take affidavits
169Cross-examination of deponent
170Pre-hearing rulings on evidence
171Evidence by deposition: District Courts Rules 2014 apply
172Taking evidence outside New Zealand: District Courts Rules 2014 apply
173Interpretation
173ALeave to serve New Zealand subpoena on witness in Australia: District Courts Rules 2014 apply
173BIssue of subpoenas for service in Australia
173CService of subpoena on witness in Australia
173CAApplication to set aside New Zealand subpoena
173DFailure to comply with subpoena
173EEvidence and submissions by remote appearance medium from Australia: District Courts Rules 2014 apply
174Judge may direct that judicial conference be held
175Judicial conference: nature and purpose
175AJudicial conference: how convened
175BJudicial conference: who may attend
175CJudicial conference: adjournment
175DJudicial conference: orders and directions pending determination of application
175EJudicial conference: order determining application
176Non-compliance with orders or directions
177Order or direction at conference may be varied at hearing
178Settlement conference
179Consent order may be made at settlement conference
179ASettlement conference becomes judicial conference if issues in dispute cannot be settled
180Change of Judge after settlement conference
181Further powers of Judge to ensure proceedings dealt with speedily
182Application for interlocutory injunction
183Undertaking as to damages
184Interim injunction in relation to party’s assets
185Application for order
186Transfer of proceedings
187Transfer for hearing
188Transfers under rule 186 or rule 187
189Procedure on transfer of proceedings
190Procedure on transfer for hearing
191Transfer of proceedings to High Court
192Adjournment of hearing
193Striking out pleading
194Stay or dismissal
195Dismissal if proceedings or defence not prosecuted
195ADiscontinuance
195BCourt may set discontinuance aside
196Judgment and reasons for judgment defined
197Time and mode of giving judgment
198Judgments to be sealed and dated
199When drawing up of order unnecessary
200Duplicate judgments
201When judgment takes effect
202Time for doing act to be stated
203If deed directed to be prepared
204Clerical mistakes and slips
205Death, etc, of Judge before judgment
206Service of judgments
207Costs at discretion of court
207AEnforcement of order for costs
207BSecurity for costs: District Courts Rules 2014 apply
208Investment of funds in court
208AInspection and testing of property
208BInterim preservation, etc, of property
209Application for rehearing
210Court may order rehearing
211Evidence by affidavit on application for rehearing
212Order for rehearing
213Procedure for rehearing
214Contempt of court: District Courts Rules 2014 apply
215Overview of this Part
216Interpretation
217Consent memoranda instead of applications
218Applications generally to be made on notice
219Who must be served with copy of application on notice
220Applications that may be made without notice
221Applications to be heard and determined by Registrars
222Applications to be heard and determined by Judges
223Form of applications
224Evidence on applications
225Where to file applications
226How to file documents in court
227Registrar may transfer for hearing to another court application accepted for filing
228Procedure if applications without notice accepted for filing
229Procedure if applications on notice accepted for filing
230Notice of opposition to application on notice
230AAffidavit to be filed with notice of opposition
230BAffidavit in reply
231Where appearance at hearing of application on notice not required
232Procedure if no appearance required at hearing of application on notice
233Hearing in court or in Chambers
234Hearing of applications
235Registrar may refer application to Judge
236Judge may vary or rescind order made by Registrar
237Enforcement of orders
238Costs
239Overview of this Part
240Interpretation
241Forms
242Applicants to identify child to be adopted but not named in application for adoption order
243Social worker to ask Police about character of applicants before furnishing report
244Affidavit to be filed with, or before hearing of, application for adoption order
245Other documents to be filed with, or before hearing of, application for adoption order
246Form of consent to adoption
247If applicants’ identity not disclosed, social worker to give evidence that consent to adoption relates to applicants
248Lawyers for applicants for adoption order not to witness consents to adoption order required by Act
249Attendance of parties at hearing
250Registrar to give notice of making of interim order
251Form of application for issue of adoption order
252Adoption order
253Directions as to service of application for variation or discharge of adoption order
254Interpretation
255Forms
256Applications without notice
257Affidavits in support to be filed to make certain applications without notice
258Affidavits in support to be filed to make certain applications on notice
259Affidavit required by rule 258 to have exhibits if application is notice of appeal under certain sections of Act
260Affidavit of financial means and their sources to be filed to make application under section 116 of Act
261Filing of application if Commissioner is party to proceedings
262Copy of documents filed to make application to be sent to Commissioner in certain cases
263Notice by advertisement by order under section 224 of Act
264Notice of defence
265Affidavit to accompany notice of defence
266Further information to be filed and served before hearing
267Fixing date and time for hearing
268Respondent added as party
269Procedure on intervention
270Order of priority of warrants to seize property
271Bond by receiver
272Procedure on arrest of respondent other than in respect of offence
273Commissioner to receive copy of order made under Act
274Interpretation
275Forms
276Applications without notice
277Filing of applications
278Procedure if restraining order made without notice
279Application under section 67 of Act to be accompanied by documents on family group conference
280Service of application under section 44 of Act
281Who must be served with or given copy of certain other applications under Act
282Service on chief executive
283Service on social worker or constable
284Directions as to service
285Notice of application under section 371 or section 377 of Act
286Notice of application under section 380 of Act
287Proof of giving of notice of application under section 371 or section 377 or section 380 of Act
288Procedure if notice of certain applications under Act not given within time prescribed
289Documents filed on family group conference
290Notice of appointment of lawyer or lay advocate
291Notice of intention to appear
292Mediation conference
292AMediation conference becomes judicial conference if agreement cannot be reached
293Change of Judge after mediation conference
294Judicial conference: how convened
295Judicial conference: nature and purpose
295AJudicial conference: orders and directions pending determination of application
295BJudicial conference: order determining application
296Fixing date and time for hearing
297Pre-hearing disclosure of evidence
298Proof of service of applications
299Evidence at hearing of certain proceedings generally to be given orally
300Consent to order of court
301Proceedings not to abate
302Notice of court’s decision on application under section 371 or section 377 of Act
303Copy of orders to be sent to principal manager of office of department in relevant area
304Interpretation
305Forms
306Applications without notice
307Certain applications by respondent or associate respondent to be on notice
308Certificate of lawyer to be included in certain applications without notice
309Documents to be filed to make certain applications
310Residential address not required
311Applicant for protection order may request that residential address be kept confidential
312Filing of applications
313Registrar to fix earliest practicable date for hearing of applications on notice
314Notice of defence when application on notice
315Notice of intention to appear in relation to temporary protection order or temporary property order
316Time for service
316AInformation about respondent available from criminal court
317Temporary property orders made on application without notice
318Registrar to issue order when temporary order becomes final or is confirmed
319Notice of objection to direction to undertake assessment and attend non-violence programme
320How notice of objection to be dealt with
321Notice of result of objection
322Request by provider for variation of programme [Revoked]
323Witness summons calling respondent or associated respondent before court
324Enforcement of occupation orders and tenancy orders: District Courts Rules 2014 apply
325Enforcement of ancillary furniture orders and furniture orders: District Courts Rules 2014 apply
326Certain documents to be served with temporary protection orders and temporary property orders
327Extension of period for service
328Copies of orders to be sent to Police
329Service of certain orders to be communicated to Police
330Registration of foreign protection orders
331Notice of registration of foreign protection orders
332Notice to be given to foreign court or authority
333Interpretation
334Forms
335Applications without notice
336Affidavits in support to be filed to make certain applications without notice
336AApplications for warrants and delivery of child [Revoked]
336BNotice of intention to appear in relation to interim parenting order [Revoked]
336CNotice of intention to appear in relation to other interim orders [Revoked]
337Accompanying affidavits may be filed to make applications for order dissolving marriage or civil union
338Separation order or separation agreement
339Marriage or civil union certificate
340Filing of certain applications
341Application for separation order [Revoked]
342Restriction on service of application for separation order [Revoked]
343Report by counsellor [Revoked]
344Affidavit of financial means and their sources
345Notice of defence
346Request by respondent for appearance on application for dissolution of marriage or civil union
347Request for hearing before order dissolving marriage or civil union made
348Filing of request for appearance, or request for hearing by respondent, if application for dissolution of marriage or civil union by one party only
349Mediation conference [Revoked]
349AMediation conference becomes judicial conference if agreement cannot be reached [Revoked]
350Change of Judge after mediation conference [Revoked]
350ARequest to speak on child’s cultural background [Revoked]
351Restrictions on fixing date and time for hearing
352Fixing date and time for hearing: notice of defence filed
353Fixing date and time for hearing: no notice of defence filed
354Fixing date and time for hearing of application for declaration or order dissolving marriage or civil union
355Registrar’s list of section 37 applications (for order dissolving marriage or civil union)
356Request for hearing after order dissolving marriage or civil union made and before it takes effect as final order
357Proof of service of certain applications
358Proof of service of applications on Registrar’s list of section 37 applications
359Intervention in proceedings relating to status of marriage or civil union
360Sealing and service of order dissolving marriage or civil union: order made by Judge in defended proceedings
361Sealing and service of order dissolving marriage or civil union: order made by Judge in undefended proceedings
362Sealing and service of order dissolving marriage or civil union: order made by Registrar
362ACosts of contravention of parenting order [Revoked]
363Registration of orders made in Commonwealth or designated countries
364Notice of registration of orders made in Commonwealth or designated countries
365Order on application for confirmation of provisional order
366Payments under registered or confirmed order
367Joinder of other parent in proceedings under Family Proceedings Act
368Provisional orders for confirmation overseas
369Procedure on arrest of respondent other than in respect of an offence
370Copies of orders varying maintenance orders
371Copies of orders for Commissioner of Inland Revenue
372Enforcement of maintenance under section 259 of Child Support Act 1991
373Applications without notice
374Order of priority of warrants to seize property
375Application of rule 369
376Bond by receiver
377Interpretation
378Forms
379Naming of respondent
380Who must be served with copy of application or interlocutory application under Acts
381Information to be provided in support of application under rule 380(2)
382Order for directions as to service or for representation
383Applications without notice
384Joining in proceedings under Acts
385Joinder of claims and consolidation
386Notice of intention to appear or notice of defence
387Affidavits in support or in opposition
388Interpretation
389Forms
390Filing of applications
391Joinder of claims and consolidation
392Affidavit in support
393Notice of defence
394Who must be given notice of applications under Act
395Variation or recision of order made on application without notice
396Copies of orders varying maintenance orders
397Meaning of party A and party B in rules 398 to 404
398Affidavit of assets and liabilities to be filed and served
399Failure by applicant to file affidavit of assets and liabilities
400Filing inadequate affidavit of assets and liabilities
401Failure to attend for examination or to comply with directions
402Power to summon witness
403Execution of warrants
404Conduct of examination
405Interpretation
406Forms
407Filing of applications
408Medical or other report in support of application to be filed
409Notice of intention to appear
410Consent to appointment as welfare guardian or as manager
411Who must be served with applications under Act
412Service on persons other than parties
413Pre-hearing conference
414Change of Judge after pre-hearing conference
415Fixing date and time for hearing
416Proof of service of applications
416AApplication of Part
416BInterpretation
416COverview of proceedings
416DFlowcharts of proceedings
416EForms
416FCommencing proceedings
416GApplications to be made on notice unless application can be made without notice
416HWhen application without notice can be made
416HACertificate of lawyer to be included in applications without notice
416IWhat happens with applications filed on notice
416JWhat happens with applications filed without notice
416KNotice of response by respondent who opposes application
416LNotice by respondent wishing to protest jurisdiction
416MNotice by respondent wishing to be heard or reserve rights
416NParty requiring more information
416OWitness summons and witness expenses
416PProceedings dealt with on tracks
416QRestriction on further evidence being filed
416RWhat happens when FDR is ordered
416SStandard track
416TComplex case on standard track
416UWithout notice track
416VSimple track
416WGeneral rules about conferences
416XIssues conference
416YSettlement conference
416ZDirections conference
416ZAMemoranda filed in advance of directions conference
416ZBPre-hearing conference
416ZCCase management conference
416ZDWhat happens when Judge directs that application proceed to hearing
416ZEHearings generally
416ZFDefended hearings
416ZGSubmissions-only hearings
416ZHFormal proof hearings
416ZIRequest to speak on child’s cultural background
416ZJCosts of contravention of parenting order
417Overview of this Part
418Court offices and hours
419Sittings when court office closed
420Fee for proceedings under Adoption Act 1955 [Revoked]
421Fee for proceedings under Family Proceedings Act 1980 [Revoked]
422Fees must be prepaid on filing [Revoked]
423Fees inclusive of GST [Revoked]
424Records
425Transfer of adoption records
426Interpretation
427Access to documents and court files during first access period
428Access to documents and court files during second access period
429Application for permission to access documents or court files
429AReview of Registrars’ decisions under rule 429
430Rules 426 to 429A are subject to other provisions
431Open searching, inspection, and copying of documents or records filed or lodged more than 60 years ago [Revoked]
431AInformation requested by District Court for purposes of section 124N of Domestic Violence Act 1995
431BInformation requested by sentencing court for purposes of section 123B of Sentencing Act 2002
431CInformation requested for purpose of enforcing cost contribution orders
432Information about domestic violence proceedings available to criminal court
433Transfer of documents relating to earlier application
434Transfer of proceedings to High Court
435Transitional provision
Gazette Information
Reprint notes

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 7 Parts and 10 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.

(6A)

Part 5A sets out rules applying to proceedings under the Care of Children Act 2004 (other than proceedings under subpart 2 of Part 2 of that Act (which relates to international child abduction)).

(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 10 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.

Rule 4(1): amended, on 31 March 2014, by rule 4(1) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 4(6A): inserted, on 31 March 2014, by rule 4(2) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 4(8): amended, on 31 March 2014, by rule 4(3) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

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 any proceedings is modified,—

(a)

in the case of proceedings under the Acts referred to in rule 6(1), by any rules in Part 5 that apply to those proceedings; and

(b)

in the case of proceedings to which Part 5A applies, by the rules in Part 5A.

(4)

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

(5)

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

(a)

section 15 of the Family Courts Act 1980; or

(b)

section 151 of the Children, Young Persons, and Their Families Act 1989.

Compare: SR 1992/109 r 2

Rule 5(3): replaced, on 31 March 2014, by rule 5(1) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 5(4): amended, on 31 March 2014, by rule 5(2) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

5A Limited application of District Courts Rules 2014

A rule in the District Courts Rules 2014 does not apply to proceedings in a Family Court unless that rule is specifically applied by these rules.

Rule 5A: inserted, on 27 May 2010, by rule 4 of the Family Courts Amendment Rules 2010 (SR 2010/97).

Rule 5A heading: amended, on 1 July 2014, by rule 4(1) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 5A: amended, on 1 July 2014, by rule 4(2) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

6 Special rules for proceedings under certain family law Acts

(2)

Part 5A sets out special rules prescribing the procedure in Family Courts that apply to applications made under the Care of Children Act 2004 (other than applications under subpart 4 of Part 2 of that Act (which relates to international child abduction)).

Rule 6(1)(e): amended, on 31 March 2014, by rule 6(1) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 6(2): inserted, on 31 March 2014, by rule 6(2) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

7 No special rules for proceedings under certain family law Acts

(1)

Part 5 contains no rules that apply to proceedings to be brought under the following family law Acts:

(2)

Proceedings under those Acts must, therefore, be brought and dealt with under Parts 1 to 4 and 6, 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.

Rule 7(1)(a): amended, on 24 January 2009, by section 49(2) of the Births, Deaths, Marriages, and Relationships Registration Amendment Act 2008 (2008 No 48).

Rule 7(1)(ab): inserted, on 26 April 2005, by section 46 of the Civil Union Act 2004 (2004 No 102).

Interpretation

8 Interpretation

(1)

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 or, if the party is a defendant as defined in section 4(1) of the Trans-Tasman Proceedings Act 2010 who is served in Australia under section 13 of that Act with an initiating document for a proceeding, the address of a place in New Zealand or Australia that, under section 18 of that Act, is or is to be treated as the defendant’s address for service for the proceeding

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

fee means a court fee prescribed by the Family Courts Fees Regulations 2009

HCRs or High Court Rules means the rules from time to time set out in Schedule 2 of the Judicature Act 1908 (as amended from time to time)

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 has the meaning given to it by section 6 of the Lawyers and Conveyancers Act 2006

litigation guardian

(a)

a person who is appointed under rule 90C, 90D, or 90F to conduct a proceeding; 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)(a) 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 date, in relation to a Registrar’s list, means the date on which applications entered on that list will next be reviewed by the Registrar

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)

representative means—

(a)

a person treated as appointed as a next friend for a minor under rule 90B; or

(b)

a person appointed as a litigation guardian for a minor under rule 90C; or

(c)

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

(d)

a person appointed under rule 90F as a litigation guardian for an incapacitated person; or

(e)

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

(f)

a person appointed under section 13 of the Harassment Act 1997 as a representative of a person who is unable or unwilling to make an application personally by reason of physical incapacity or fear of harm or other sufficient cause; or

(g)

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

(h)

a person appointed as an attorney for 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 2014, 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 DCR 2.1 or 2.3 (and DCR 1.22 applies accordingly).

(2)

Wherever the term court office is used in these rules, the term court registry or a similar term may be used instead, whether in forms or other documents used for the purposes of these rules or in proceedings to which these rules apply, or as the case requires, for any other legal purpose.

Compare: SR 1992/109 r 3

Rule 8(1) address for service: amended, on 11 October 2013, by rule 4 of the Family Courts (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/347).

Rule 8(1) DCRs: replaced, on 1 July 2014, by rule 5(1) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 8(1) fee: inserted, on 1 March 2014, by rule 4(1) of the Family Courts Amendment Rules 2014 (LI 2014/3).

Rule 8(1) HCRs or High Court Rules: inserted, on 1 November 2009, by rule 4(1) of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

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

Rule 8(1) lawyer: replaced, on 1 March 2014, by rule 4(2) of the Family Courts Amendment Rules 2014 (LI 2014/3).

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

Rule 8(1) litigation guardian paragraph (a): replaced, on 1 March 2014, by rule 4(3) of the Family Courts Amendment Rules 2014 (LI 2014/3).

Rule 8(1) Registrar’s list paragraph (a): amended, on 1 November 2009, by rule 4(2) of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

Rule 8(1) Registrar’s list date: inserted, on 1 November 2009, by rule 4(1) of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

Rule 8(1) Registrar’s list of section 37 applications: amended, on 26 April 2005, by section 8(1) of the Relationships (Statutory References) Act 2005 (2005 No 3).

Rule 8(1) representative: replaced, on 1 March 2014, by rule 4(4) of the Family Courts Amendment Rules 2014 (LI 2014/3).

Rule 8(1) without notice: amended, on 1 July 2014, by rule 5(2) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 8(1) working day: replaced, on 1 July 2014, by rule 5(3) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 8(2): inserted, on 1 July 2014, by rule 5(4) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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 10.

(2)

For requirements to use forms, see rules 62 and 62A, and the special rules in Parts 5 and 5A.

Rule 10(1): amended, on 31 March 2014, by rule 7(1) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 10(2): replaced, on 31 March 2014, by rule 7(2) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

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.

Rule 12(2)(a): amended, on 1 July 2005, by rule 4 of the Family Courts Amendment Rules 2005 (SR 2005/101).

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): replaced, 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 in all proceedings other than those to which Part 5A applies.

(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.

Rule 18(1): amended, on 31 March 2014, by rule 8 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

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 DV 4A (in Schedule 5) 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.

Rule 20(1)(b): amended, on 1 October 2014, by rule 4 of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

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):

(f)

applicants under the Family Proceedings Act 1980 who make certain applications without notice must file with the other documents to be filed to make their application an affidavit in support (see rule 336):

(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):

(h)

applicants under the Family Protection Act 1955 or the Law Reform (Testamentary Promises) Act 1949 must, if their application is made without notice, file with the other documents to be filed to make their application an affidavit of the kind referred to in rule 383:

(i)

applicants under the Property (Relationships) Act 1976 must file with the other documents to be filed to make their application an affidavit that includes the information specified in rule 392 and, if rules 398 and 399 apply to their application, must also file and serve (within the time specified in rule 398(1)) an affidavit of the kind referred to in rule 398(1)(a).

Rule 21(f): amended, on 31 March 2014, by rule 9 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 21(g): amended, on 26 April 2005, by section 8(1) of the Relationships (Statutory References) Act 2005 (2005 No 3).

22 Special rules relating to other documents

Part 5 also contains special rules about other documents to be filed to make applications under the following family law Acts or to be filed before the hearing of those applications or by a time the Registrar may direct:

(a)

Adoption Act 1955 (see rule 242 – evidence of child’s identity, and rule 245 – other documents):

(b)

Child Support Act 1991 (see rule 266(2) – further information to be filed and served before hearing):

(c)

Children, Young Persons, and Their Families Act 1989 (see rule 279 – application under section 67 of Act to be accompanied by documents on family group conference, and rule 289 – documents filed on family group conference):

(d)

Domestic Violence Act 1995 (see rule 308 – certificate of lawyer to be included in certain applications without notice, and rule 309 – documents to be filed to make certain applications):

(e)

Family Proceedings Act 1980 (see rule 338 – separation order or separation agreement, rule 339 – marriage or civil union certificate, and rule 344 – affidavit of financial means and their sources):

(f)

Protection of Personal and Property Rights Act 1988 (see rule 408(a) – medical or other report in support of application to be filed).

Rule 22(e): amended, on 26 April 2005, by section 8(1) of the Relationships (Statutory References) Act 2005 (2005 No 3).

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—

(a)

the delay that would be caused by making the application on notice would or might entail,—

(i)

in proceedings under the Child Support Act 1991 or the Family Proceedings Act 1980 or subpart 4 of Part 2 of the Care of Children Act 2004, serious injury or undue hardship, or risk to the personal safety of the applicant or any child of the applicant’s family, or both; and

(ii)

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

(iii)

in proceedings under the Property (Relationships) Act 1976, irreparable injury; 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.

Rule 24(2)(a)(i): amended, on 31 March 2014, by rule 10 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

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).

Rule 25(1)(b): replaced, on 31 March 2014, by rule 11 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

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

Rule 26(3): amended, on 1 July 2005, by rule 8 of the Family Courts Amendment Rules 2005 (SR 2005/101).

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 (of 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 one 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 one 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):

(a)

appeals to the court under section 15A(2), section 17(2), or section 18(5) of the Births, Deaths, Marriages, and Relationships Registration Act 1995:

(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:

(a)

applications under the Child Support Act 1991 if the Commissioner is a party (see rule 261); and

(c)

applications under the Domestic Violence Act 1995 (see rule 312); and

(d)

applications under, and certain applications filed with or in relation to applications under, Part 4 of the Family Proceedings Act 1980 (see rule 340); and

(e)

applications under the Property (Relationships) Act 1976 (see rule 390); 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 an application on notice must immediately either—

(a)

enter the application on a Registrar’s list and assign it a Registrar’s list date; or

(b)

fix a date and time for the hearing of the application.

(2)

A Registrar must then promptly—

(a)

inform the applicant and respondent of—

(i)

the Registrar’s list date assigned under subclause (1)(a); or

(ii)

the date and time fixed for the hearing of the application under subclause (1)(b); 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, in general terms, it may be responded to or defended; and

(c)

issue for service on (that is, in general terms, make ready and complete for delivering 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)

Subclauses (2) and (3) do not apply where the Registrar accepts for filing an application on notice for a separation order made under section 20 of the Family Proceedings Act 1980 (see instead rules 341 and 342).

(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.

Rule 32(1): replaced, on 1 November 2009, by rule 5(1) of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

Rule 32(2): replaced, on 1 November 2009, by rule 5(1) of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

Rule 32(4): replaced, on 1 November 2009, by rule 5(2) of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

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

However, rule 36 is modified by special rules in Part 5 as to who must or may be served with documents relating to, or who must be given notice of, certain applications under certain family law Acts, including the following Acts:

(a)

Adoption Act 1955 (see, for example, rule 253 – directions as to service of application for variation or discharge of adoption order):

(b)

Child Support Act 1991 (see, for example, rule 266):

(d)

Family Proceedings Act 1980 (see, for example, rule 342 – restriction on service of application for separation order):

(e)

Family Protection Act 1955, Law Reform (Testamentary Promises) Act 1949 (see, for example, rule 382 – order for directions as to service or for representation):

(f)

Property (Relationships) Act 1976 (see, for example, rule 394 – who must be given notice of applications under Act):

(g)

Protection of Personal and Property Rights Act 1988 (see, for example, rule 411 – who must be served with copy of applications under Act, and rule 412 – service on persons other than parties).

Rule 37(b): replaced, on 1 July 2005, by rule 9 of the Family Courts Amendment Rules 2005 (SR 2005/101).

Rule 37(c): replaced, on 1 July 2005, by rule 9 of the Family Courts Amendment Rules 2005 (SR 2005/101).

Rule 37(d): replaced, on 1 July 2005, by rule 9 of the Family Courts Amendment Rules 2005 (SR 2005/101).

Rule 37(d): amended, on 31 March 2014, by rule 12 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 37(e): replaced, on 1 July 2005, by rule 9 of the Family Courts Amendment Rules 2005 (SR 2005/101).

Rule 37(f): replaced, on 1 July 2005, by rule 9 of the Family Courts Amendment Rules 2005 (SR 2005/101).

Rule 37(g): inserted, on 1 July 2005, by rule 9 of the Family Courts Amendment Rules 2005 (SR 2005/101).

38 Service of applications under certain Acts

If an application is made under one of the following family law Acts, rule 36 is subject to provisions in that Act that affect who must be served with the application:

(ab)

Civil Union Act 2004 (see, for example, section 20(2) of that Act):

(b)

Domestic Actions Act 1975 (see, for example, section 10(1) of that Act):

(c)

Marriage Act 1955 (see, for example, section 19(2) of that Act).

Rule 38(a): amended, on 27 May 2010, by rule 12 of the Family Courts Amendment Rules 2010 (SR 2010/97).

Rule 38(a): amended, on 24 January 2009, by section 49(2) of the Births, Deaths, Marriages, and Relationships Registration Amendment Act 2008 (2008 No 48).

Rule 38(ab): inserted, on 26 April 2005, by section 46 of the Civil Union Act 2004 (2004 No 102).

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

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

42 Non-compliance with rule 41

(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: replaced, 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.

(8)

To the extent that an application under this rule relates to service of process effected outside New Zealand under DCR 6.23 or DCR 6.24 (as applied by rule 130(2)(a) or (b)), it must be determined under DCR 6.25 (as applied by rule 130(2)(c)).

(9)

But both this rule and DCR 6.25 (as applied by rule 130(2(c)) are subject to section 27(1) of the Trans-Tasman Proceedings Act 2010, which provides that a New Zealand court cannot stay a civil proceeding before it on forum grounds connected with Australia otherwise than in accordance with subpart 2 of Part 2 of that Act.

Compare: SR 1992/109 r 139

Rule 43(8): inserted, on 11 October 2013, by rule 5 of the Family Courts (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/347).

Rule 43(8): amended, on 1 July 2014, by rule 6(1) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 43(8): amended, on 1 July 2014, by rule 6(2) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 43(9): inserted, on 11 October 2013, by rule 5 of the Family Courts (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/347).

Rule 43(9): amended, on 1 July 2014, by rule 6(3) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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 appearance

(1)

Form G 22 (set out in Schedule 1) may be used for the purpose of entering an appearance under rule 43.

(2)

Form G 23 (set out in Schedule 1) may be used for the purpose of entering an appearance under rule 44.

(3)

Form G 24 (set out in Schedule 1) may be used for the purpose of entering an appearance under rule 45.

Rule 46: replaced, on 1 November 2009, by rule 6 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

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—

(a)

filing and serving on the other party interrogatories, under the provisions of the District Courts Rules 2014 specified in rule 137(2):

(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.

Rule 47(1)(a): amended, on 1 July 2014, by rule 7 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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 section 51O, 51P, or 78(5) of that Act).

(4)

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

Compare: SR 1996/148 r 99

Rule 51(3): amended, on 1 October 2014, by rule 5 of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

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:

(a)

(rules 292 to 295) a Children, Young Persons, and Their Families Act 1989 mediation conference or judicial conference:

(b)
[Revoked]

(2)

The Judge may at any time before or during the hearing of an application, either on his or her own initiative or on an interlocutory application for the purpose by a party, direct the Registrar to arrange for—

(a)

a judicial conference to be convened under rule 174; or

(b)

a settlement conference to be convened under rule 178.

(2A)

A direction may be made under subclause (2)—

(a)

on such terms as the Judge thinks fit; and

(b)

whether or not a conference referred to in subclause (1) has been convened.

(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.

Rule 52(1)(b): revoked, on 31 March 2014, by rule 13 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 52(2): replaced, on 1 November 2009, by rule 8 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

Rule 52(2A): inserted, on 1 November 2009, by rule 8 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

Fixing date and time for hearing of application

Heading: inserted, on 27 May 2010, by rule 5 of the Family Courts Amendment Rules 2010 (SR 2010/97).

52A Judge may require Registrar to fix date and time for hearing of application

(1)

A Judge may, at any time on his or her own initiative, direct the Registrar to fix a date and time for the hearing of an application.

(2)

After a Judge gives a direction under subclause (1), the Registrar must—

(a)

make inquiries with the parties to obtain an estimate of the duration of the hearing of the application, if an estimate is required; and

(b)

fix a date and time for the hearing of the application; and

(c)

give notice of the date and time of the hearing of the application to—

(i)

the parties; and

(ii)

any person (not being a party) who has filed a notice of intention to appear.

Rule 52A: inserted, on 27 May 2010, by rule 5 of the Family Courts Amendment Rules 2010 (SR 2010/97).

52B Parties may require Registrar to fix date and time for hearing of application

(1)

This rule applies if—

(a)

the time has expired for the filing of—

(i)

a notice of defence; or

(ii)

a notice of intention to appear; and

(b)

a request for the convening of any of the following conferences has been disposed of:

(i)

a mediation conference:

(ii)

a settlement conference:

(iii)

a judicial conference.

(2)

The Registrar must fix a date and time for the hearing of an application if there is filed an application for fixture in form G 17 that is signed by, or on behalf of, all parties.

(3)

The Registrar may fix a date and time for the hearing of an application even though the application for fixture is not signed by all of the parties if the Registrar is satisfied that the parties who have not signed the application—

(a)

have refused to do so; and

(b)

have no reasonable reason for that refusal.

(4)

A Registrar who fixes a date and time under subclause (2) or (3) must note on the application for fixture that he or she has done so.

(5)

The Registrar must give notice of the date and time of the hearing of the application to—

(a)

the parties; and

(b)

any person (not being a party) who has filed a notice of intention to appear.

Rule 52B: inserted, on 27 May 2010, by rule 5 of the Family Courts Amendment Rules 2010 (SR 2010/97).

52C Parties to give Registrar information affecting duration of hearing

After receiving a notice under rule 52A(2)(c)(i) or 52B(5)(a), the parties must, without delay, give the Registrar all available information affecting the earlier estimate of the duration of the hearing.

Rule 52C: inserted, on 27 May 2010, by rule 5 of the Family Courts Amendment Rules 2010 (SR 2010/97).

52D Only certain steps may be taken after notice of hearing date given

(1)

After the Registrar has given notice of the date and time fixed for the hearing of an application, a party may only do the following:

(a)

file—

(i)

an application for leave under subclause (2):

(ii)

an application under rule 14 for directions:

(iii)

an application under rule 78 to amend a document:

(b)

file and serve—

(i)

a notice under rule 169 requiring a deponent to attend the hearing for cross-examination:

(ii)

further particulars in compliance with a notice issued under rule 139:

(c)

comply with any direction or order of the court.

(2)

No other step in the proceeding may be taken by a party except with the leave of a Judge granted on the application of that party.

Rule 52D: inserted, on 27 May 2010, by rule 5 of the Family Courts Amendment Rules 2010 (SR 2010/97).

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.

Rule 54 heading: amended, on 1 July 2005, by rule 10(1) of the Family Courts Amendment Rules 2005 (SR 2005/101).

Rule 54(a): amended, on 1 July 2005, by rule 10(2) of the Family Courts Amendment Rules 2005 (SR 2005/101).

Rule 54(b): amended, on 1 July 2005, by rule 10(2) of the Family Courts Amendment Rules 2005 (SR 2005/101).

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): inserted, 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 any proceedings is modified by any rules in Part 5 or Part 5A that apply to the proceedings.

(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.

Rule 61(3): replaced, on 31 March 2014, by rule 14 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Forms

62 Forms

(1)

The forms to be used in proceedings in a court are those set out in Schedule 1, unless—

(a)

a rule in Part 5 requires or permits, in proceedings under a particular family law Act, the use of a particular form set out in Schedules 2 to 9; or

(b)

a rule in Part 5A requires or permits, in proceedings to which that Part applies, the use of a particular form set out in Schedule 10; or

(c)

the use of an approved form—

(i)

is required or permitted by a rule in Part 5A (see rules 62A and 416E); or

(ii)

is required by rule 305(a) (see rule 62AB).

(2)

[Revoked]

(3)

[Revoked]

(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

Rule 62(1): replaced, on 31 March 2014, by rule 15 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 62(1)(c): replaced, on 1 October 2014, by rule 6 of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

Rule 62(2): revoked, on 31 March 2014, by rule 15 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 62(3): revoked, on 31 March 2014, by rule 15 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

62A Approved forms for use in proceedings to which Part 5A applies

(1)

The Secretary for Justice may approve forms that are to be used by applicants and parties in proceedings to which Part 5A applies (which are proceedings under the Care of Children Act 2004, other than proceedings under subpart 4 of Part 2 of that Act).

(2)

The following rules apply to a document that is an approved form:

(a)

rule 64 (about size of paper):

(b)

rule 69 (about fastening and numbering of pages):

(c)

rule 70 (about legibility):

(d)

rule 71 (about signatures).

(3)

Every form approved by the Secretary for Justice under this rule—

(a)

must be published on the Ministry of Justice website; and

(b)

must be available to be downloaded, free of charge, from that Internet site; and

(c)

if the form corresponds to a form in Schedule 1, must identify the form to which it corresponds; and

(d)

must include a front page, or require the attachment of a front page on an approved form.

Rule 62A: inserted, on 31 March 2014, by rule 16 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 62A(1): amended, on 1 July 2014, by rule 8(1) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 62A(3): amended, on 1 July 2014, by rule 8(2) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

62AB Approved forms for use in proceedings under Domestic Violence Act 1995

(1)

The Secretary for Justice may approve forms that are required by rule 305(a) to be used by service providers in proceedings under the Domestic Violence Act 1995.

(2)

The following rules apply to a document that is an approved form:

(a)

rule 64 (about size of paper):

(b)

rule 69 (about fastening and numbering of pages):

(c)

rule 70 (about legibility):

(d)

rule 71 (about signatures).

(3)

Every form approved by the Secretary for Justice under this rule—

(a)

must be published on the Ministry of Justice website; and

(b)

must be available to be downloaded, free of charge, from that Internet site.

Rule 62AB: inserted, on 1 October 2014, by rule 7 of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

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), other than an affidavit made in proceedings to which Part 5A applies.

Rule 63(b): amended, on 31 March 2014, by rule 17 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

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 do not need a front page:

(a)

a document tendered in evidence, a certificate, or a report:

(b)

an information sheet (for example, form G 7, form CYPF 4, form DV 4A, and form PPPR 14):

(c)

form DV 6 (information for Police if application made for protection order):

(d)

an approved form filed in Care of Children Act 2004 proceedings under Part 5A.

(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

Rule 72(4): replaced, on 31 March 2014, by rule 18 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 72(4)(b): amended, on 1 October 2014, by rule 8 of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

73 Heading

(1)

A document 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 10; 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)

[Revoked]

(5)

This rule is subject to directions of the court to the contrary.

Compare: SR 1981/261 r 13

Rule 73(1): amended, on 31 March 2014, by rule 19(1) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 73(1)(a): amended, on 31 March 2014, by rule 19(2) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 73(4): revoked, on 31 March 2014, by rule 19(3) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

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 file a document, the person seeking to file it must—

(a)

present the document for filing at the office of the proper court; and

(b)

pay any applicable fee that has not been waived or postponed by the Registrar.

(2)

A document is filed when it is accepted for filing by the Registrar.

Rule 75: replaced, on 1 March 2014, by rule 5 of the Family Courts Amendment Rules 2014 (LI 2014/3).

76 Ways documents may be presented for filing

(1)

Any document may be presented for filing at a court office by—

(a)

delivering it to the Registrar by hand; or

(b)

sending it to the court office by prepaid post.

(2)

If the document is an application made without notice or a document required or permitted by a family law Act or these rules to be filed with that kind of application, the document may be presented for filing at a court office—

(a)

by either of the ways specified in subclause (1); or

(b)

by sending it to an electronic system used by the court.

(3)

Where a document has been presented for filing in accordance with subclause (2)(b), the Registrar may require that document to also be presented for filing in either of the ways specified in subclause (1).

Rule 76: replaced, on 1 March 2014, by rule 6 of the Family Courts Amendment Rules 2014 (LI 2014/3).

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: SR 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.

(1A)

A lawyer may act for any party to proceedings under any Act, but in proceedings to which Part 5A applies, a lawyer may act only as provided in section 7A of the Care of Children Act 2004.

(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:

(c)

section 162 of the Family Proceedings Act 1980:

(d)

section 7 of the Care of Children Act 2004:

Rule 80(1A): inserted, on 31 March 2014, by rule 20 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 80(2)(d): replaced, on 1 July 2005, by rule 11 of the 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 box number, fax number, or email address by which the lawyer will accept service of documents in the course of 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 83A or 87.

Compare: SR 1992/109 rr 41, 43

Rule 82(1)(e): replaced, on 17 November 2011, by rule 4 of the Family Courts Amendment Rules 2011 (SR 2011/349).

Rule 82(3): amended, on 11 October 2013, by rule 6 of the Family Courts (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/347).

83 Lawyer filing documents on behalf of party

(1)

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).

(2)

To avoid doubt, in proceedings to which Part 5A applies, a lawyer may file a document on behalf of a party only if permitted by section 7A of the Care of Children Act 2004 to act for the party.

Compare: SR 1992/109 r 38

Rule 83(2): inserted, on 31 March 2014, by rule 21 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

83A Authority of certain Australian solicitors in certain trans-Tasman proceedings: District Courts Rules 2014 apply

DCR 5.39 (relating to authority of certain Australian solicitors in certain Trans-Tasman proceedings) applies, so far as applicable and with all necessary modifications, to proceedings in a court.

Rule 83A: inserted, on 11 October 2013, by rule 7 of the Family Courts (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/347).

Rule 83A heading: amended, on 1 July 2014, by rule 9(1) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 83A: amended, on 1 July 2014, by rule 9(2) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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)

Except in proceedings to which Part 5A applies, 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.

(1A)

In proceedings to which Part 5A applies, if a lawyer starts to act for a party, or ceases to act for a party, solely as a result of the operation of section 7A of the Care of Children Act 2004, the lawyer must notify the Registrar of the change by notice in writing.

(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)

Rule 87(1): amended, on 31 March 2014, by rule 22(1) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Rule 87(1A): inserted, on 31 March 2014, by rule 22(2) of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

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

(ba)

in the case of proceedings to which Part 5A applies, the lawyer ceases, in accordance with section 7A of the Care of Children Act 2004, to act for the party; 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

Rule 88(1)(ba): inserted, on 31 March 2014, by rule 23 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

Representatives and managers

89 Interpretation

In rules 90 to 98, unless the context otherwise requires,—

litigation guardian has the meaning given to it by rule 8

representative has the meaning given to it by rule 8

taking part in proceedings includes commencing or defending proceedings.

Rule 89: replaced, on 1 March 2014, by rule 7 of the Family Courts Amendment Rules 2014 (LI 2014/3).

90 Minor must be represented by next friend or litigation guardian

(1)

A minor under the age of 18 years must not take part in proceedings without—

(a)

a next friend; or

(b)

a litigation guardian.

(2)

Subclause (1) does not apply to a minor who—

(a)

is required by an enactment to take part in proceedings without a next friend or litigation guardian (for example, sections 9(4) and 71 of the Domestic Violence Act 1995); or

(b)

is permitted by an enactment to take part in proceedings without a next friend or litigation guardian (for example, section 50(3) of the District Courts Act 1947, section 52 of the Property (Relationships) Act 1976, section 158 of the Family Proceedings Act 1980, section 225 of the Child Support Act 1991, and section 31(2)(e) of the Care of Children Act 2004); or

(c)

is authorised under rule 90A to take part in proceedings without a next friend or litigation guardian.

Compare: SR 2002/261 r 89(2), (4) (pre-1 March 2014); 1908 No 89 Schedule 2 r 4.31

Rule 90: replaced, on 1 March 2014, by rule 7 of the Family Courts Amendment Rules 2014 (LI 2014/3).

90A Minor may apply to take part in proceedings without next friend or litigation guardian

(1)

This rule applies to a minor under the age of 18 years who—

(a)

is not required or permitted by an enactment to take part in proceedings without a next friend or litigation guardian; and

(b)

is not prohibited by an enactment from taking part in proceedings without a next friend or litigation guardian.

(2)

A minor who wishes to take part in proceedings in his or her own name may apply to the court for authorisation to take part in the proceedings without a next friend or litigation guardian.

(3)

On an application under subclause (2), the court or Registrar may make an order allowing the minor to take part in the proceedings without a next friend or litigation guardian if the court or Registrar is satisfied that—

(a)

the minor is capable of making the decisions required or likely to be required in the proceedings; and

(b)

no reason exists that would make it in the interests of the minor to be represented by a next friend or litigation guardian.

Compare: 1908 No 89 Schedule 2 r 4.32

Rule 90A: inserted, on 1 March 2014, by rule 7 of the Family Courts Amendment Rules 2014 (LI 2014/3).

90B Appointment of next friend for minor

A person is treated as appointed as the next friend for a minor if the person has filed in the court—

(a)

an affidavit showing that he or she—

(i)

is able fairly and competently to conduct proceedings on behalf of the minor; and

(ii)

does not have interests adverse to those of the minor; and

(b)

an undertaking to be responsible for any costs awarded in the proceedings against the minor.

Compare: SR 2002/261 r 90(4) (pre-1 March 2014)

Rule 90B: inserted, on 1 March 2014, by rule 7 of the Family Courts Amendment Rules 2014 (LI 2014/3).

90C Appointment of litigation guardian for minor

(1)

This rule applies if a minor does not have a next friend or litigation guardian within the meaning of paragraph (a)(ii) of the definition of litigation guardian in rule 8.

(2)

The court or Registrar may appoint a litigation guardian if the court or Registrar is satisfied that—

(a)

the person for whom the litigation guardian is to be appointed is a minor; and

(b)

the litigation guardian—

(i)

is able fairly and competently to conduct proceedings on behalf of the minor; and

(ii)

does not have interests adverse to those of the minor; and

(iii)

consents to being a litigation guardian.

(3)

In deciding whether to appoint a litigation guardian, 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.

(4)

The court or Registrar may appoint a litigation guardian under this rule at any time—

(a)

on the court’s or Registrar’s own initiative; or

(b)

on an interlocutory application made with or without notice by any person, including a person seeking to be appointed as litigation guardian.

Compare: SR 2002/261 r 90(1), (3) (pre-1 March 2014); 1908 No 89 Schedule 2 r 4.35

Rule 90C: inserted, on 1 March 2014, by rule 7 of the Family Courts Amendment Rules 2014 (LI 2014/3).

90D Appointment of litigation guardian for person to whom section 11 of Domestic Violence Act 1995 applies

(1)

This rule applies in respect of 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), 48, 73, or 92 of that Act).

(2)

The court or Registrar may appoint a litigation guardian for a person to whom this rule applies if the court or Registrar is satisfied that the litigation guardian—

(a)

is able fairly and competently to conduct proceedings on behalf of the person; and

(b)

does not have interests adverse to those of the person; and

(c)

consents to being a litigation guardian.

(3)

The court or Registrar may appoint a litigation guardian under subclause (2) if an interlocutory application for the purpose has been made with or without notice, in form DV 7,—

(a)

by the proposed litigation guardian; or

(b)

by a party to the proceedings; or

(c)

by any other person, with the leave of the court.

Compare: SR 2002/261 r 90(2), (3) (pre-1 March 2014)

Rule 90D: inserted, on 1 March 2014, by rule 7 of the Family Courts Amendment Rules 2014 (LI 2014/3).

90E Incapacitated person must be represented by litigation guardian

(1)

An incapacitated person must not take part in proceedings without a litigation guardian, unless the court otherwise orders.

(2)

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.

Compare: SR 2002/261 r 89(2A), (2B) (pre-1 March 2014); 1908 No 89 Schedule 2 r 4.30

Rule 90E: inserted, on 1 March 2014, by rule 7 of the Family Courts Amendment Rules 2014 (LI 2014/3).

90F Appointment of litigation guardian for incapacitated person

(1)

This rule applies if an incapacitated person does not have a litigation guardian within the meaning of paragraph (a)(ii) of the definition of litigation guardian in rule 8.

(2)

The court or Registrar may appoint a litigation guardian if the court or Registrar is satisfied that—

(a)

the person for whom the litigation guardian is to be appointed is an incapacitated person; 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.

(3)

In deciding whether to appoint a litigation guardian, 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.

(4)

The court or Registrar may appoint a litigation guardian under this rule 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.

Compare: SR 2002/261 r 90(3A), (3B), (3C) (pre-1 March 2014); 1908 No 89 Schedule 2 r 4.35

Rule 90F: inserted, on 1 March 2014, by rule 7 of the Family Courts Amendment Rules 2014 (LI 2014/3).

90G Notification of appointment

(1)

A person appointed under rule 90C, 90D, or 90F as a litigation guardian for a party to a proceeding must give notice of the appointment to other parties in the proceeding as soon as practicable after the appointment.

(2)

A person appointed as a guardian ad litem for 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 2002/269 r 90(5) (pre-1 March 2014); 1908 No 89 Schedule 2 r 4.37

Rule 90G: inserted, on 1 March 2014, by rule 7 of the Family Courts Amendment Rules 2014 (LI 2014/3).

90H Person subject to property order must be represented by manager

A person must not take part in proceedings in his or her own name, but must instead 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 33 of the Protection of Personal and 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.

Compare: SR 2002/261 r 89(3) (pre-1 March 2014)

Rule 90H: inserted, on 1 March 2014, by rule 7 of the Family Courts Amendment Rules 2014 (LI 2014/3).

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 90D or 90F.

(3)

If a party to proceedings relating to property has a representative appointed under rule 90D or 90F 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)

Rule 91(2): amended, on 1 March 2014, by rule 8 of the Family Courts Amendment Rules 2014 (LI 2014/3).

Rule 91(3): amended, on 1 March 2014, by rule 8 of the Family Courts Amendment Rules 2014 (LI 2014/3).

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 90G 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).

Rule 92(b): amended, on 1 March 2014, by rule 9 of the Family Courts Amendment Rules 2014 (LI 2014/3).

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 90C or 90D 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(2): amended, on 1 March 2014, by rule 10 of the Family Courts Amendment Rules 2014 (LI 2014/3).

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; 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

Rule 97(5)(a): amended, on 1 March 2014, by rule 11 of the Family Courts Amendment Rules 2014 (LI 2014/3).

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 18 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:

(c)

a person for whom a representative is appointed under rule 90D or section 12 of the Domestic Violence Act 1995 if the person ceases to be a person to whom section 11 or section 12 of that Act applies:

(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

Rule 98(1)(a): amended, on 1 July 2014, by rule 10 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 98(1)(b): amended, on 26 April 2005, by section 8(2) of the Relationships (Statutory References) Act 2005 (2005 No 3).

Rule 98(1)(c): amended, on 1 March 2014, by rule 12 of the Family Courts Amendment Rules 2014 (LI 2014/3).

Rule 98(1)(d): replaced, 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:

(a)

the documents issued for service under rule 32(2)(c) or Part 5A:

(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 4 of the Family Proceedings Act 1980.

Compare: SR 1981/261 r 39

Rule 101(1)(a): amended, on 31 March 2014, by rule 24 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

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—

(a)

by personal service on the person (see rules 105 to 113); or

(b)

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

(c)

by service at the person’s address for service (see rules 115 to 121); or

(ca)

if a defendant has been served in Australia under section 13 of the Trans-Tasman Proceedings Act 2010 with an initiating document for the proceeding, by posting the document to an address for service of the person to be served; 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)(ca): inserted, on 11 October 2013, by rule 8 of the Family Courts (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/347).

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

(d)

it is a protection order under the Domestic Violence Act 1995; 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

(ii)

under section 77, or under sections 77 and 118, of the Care of Children Act 2004); or

(f)

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

Compare: SR 1992/109 r 234

Rule 104(e)(ii): replaced, on 1 July 2005, by rule 13 of the 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:

(a)

an application under any of the following family law Acts:

(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.

Rule 105(1)(a)(iii): replaced, on 1 July 2005, by rule 14 of the 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 constable, 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:

(f)

a social worker, if the proceedings are under the Children, Young Persons, and Their Families Act 1989 and the document relates to those proceedings.

(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

Rule 106(1)(b): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

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 90D; 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

Rule 107(3)(a): amended, on 1 March 2014, by rule 13 of the Family Courts Amendment Rules 2014 (LI 2014/3).

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

Rule 108 heading: amended, on 26 April 2005, by section 8(2) of the Relationships (Statutory References) Act 2005 (2005 No 3).

Rule 108(1): amended, on 26 April 2005, by section 8(2) of the Relationships (Statutory References) Act 2005 (2005 No 3).

Rule 108(2): revoked, on 26 April 2005, by section 8(2) of the 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: replaced, on 1 July 2005, by rule 15 of the 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).

Rule 112(2): amended, on 26 April 2005, by section 8(2) of the Relationships (Statutory References) Act 2005 (2005 No 3).

113 Personal service: District Courts Rules 2014 apply

The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a court:

(a)

6.12—personal service on New Zealand corporations:

(b)

6.13—personal service in New Zealand on foreign corporations:

(c)

6.14—personal service on Australian corporations, partnerships and attorneys:

(d)

6.15—personal service in Australia on foreign corporations:

(e)

6.16—personal service on unincorporated societies:

(f)

6.17—personal service on partnership or apparent partnership:

(g)

6.18—personal service on attorney or agent of absentee.

Rule 113: replaced, on 1 July 2014, by rule 11 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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 stated on the 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.

Rule 116(1)(a): replaced, on 31 March 2014, by rule 25 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

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 Methods of service 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, fax number, or email address, 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; or

(d)

transmitting the document to the email address.

Rule 118: replaced, on 17 November 2011, by rule 5 of the Family Courts Amendment Rules 2011 (SR 2011/349).

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) or (d)

(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.

(3A)

Despite subclause (3), when a document is, under rule 118(c) or (d), transmitted electronically to the fax number or email address of a solicitor in a State or Territory of Australia at a time later than 5 pm in that State or Territory, it is to be treated as having been served on the first subsequent working day.

(4)

A document transmitted under rule 118(c) or (d) 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(1)(b).

Compare: SR 1992/109 r 233(1)–(3)

Rule 119(3): amended, on 17 November 2011, by rule 6(1) of the Family Courts Amendment Rules 2011 (SR 2011/349).

Rule 119(3A): inserted, on 11 October 2013, by rule 10 of the Family Courts (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/347).

Rule 119(4): amended, on 17 November 2011, by rule 6(2) of the Family Courts Amendment Rules 2011 (SR 2011/349).

Rule 119(4)(b): amended, on 1 March 2014, by rule 14 of the Family Courts Amendment Rules 2014 (LI 2014/3).

120 Lawyer must acknowledge document faxed or emailed

(1)

A lawyer to whom a document is transmitted under rule 118(c) or (d) must, promptly after receiving the document, give the person who served the document—

(a)

a notice 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 stating that the document was incomplete or illegible or both when it was received.

(2)

A notice under subclause (1) may be—

(a)

given in writing; or

(b)

transmitted by fax or email.

Rule 120: replaced, on 17 November 2011, by rule 7 of the Family Courts Amendment Rules 2011 (SR 2011/349).

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: by post in trans-Tasman proceedings

Heading: inserted, on 11 October 2013, by rule 11 of the Family Courts (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/347).

121A When and how documents under rule 102(2)(ca) to be treated as served

(1)

Subclauses (2) to (5) apply to a document to be served in a proceeding if—

(a)

the proceeding is one an initiating document for which is to be or has been served on a defendant in Australia under section 13 of the Trans-Tasman Proceedings Act 2010; and

(b)

the document is one to be served—

(i)

by a party in New Zealand and on a party in Australia; or

(ii)

by a party in Australia and on a party in New Zealand.

(2)

When a document is served in accordance with rule 102(2)(ca) or 118(a) or (b), it is to be treated as served on the earlier of—

(a)

the sixth working day after the day on which it was posted or left at a document exchange; and

(b)

the day on which it was received.

(3)

Subclause (4) applies to a document that is—

(a)

a document in response to a requirement of or under these rules; and

(b)

served in accordance with rule 102(2)(ca) or 118(a) or (b).

(4)

The party serving the document is entitled to an extra 5 working days within which to comply with that requirement.

(5)

Despite subclause (3), subclause (4) does not apply when a rule requires a document to be served a prescribed number of days before a hearing or other specified event.

(6)

This rule does not limit or affect rule 119(3A) (which relates to when a document is transmitted electronically to the fax number or email address of a solicitor in a State or Territory of Australia under rule 118(c) or (d)).

Compare: 1908 No 89 Schedule 2 r 6.6(6)–(11); SR 2009/257 r 3.44.7

Rule 121A: inserted, on 11 October 2013, by rule 11 of the Family Courts (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/347).

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—

(a)

section 223(1) of the Child Support Act 1991:

(b)

section 156(1) of the Family Proceedings Act 1980.

Rule 124: replaced, 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 90, 90E, or 90H, 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

Rule 125(1): amended, on 1 March 2014, by rule 15 of the Family Courts Amendment Rules 2014 (LI 2014/3).

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, constable, 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)

Rule 127(4): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

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 Service on absentee: District Courts Rules 2014 apply

(1)

The DCRs set out in subclause (2) apply, so far as applicable and with all necessary modifications, to proceedings in a court under any of the Acts specified in subclause (4).

(2)

The DCRs referred to in subclause (1) are—

(a)

6.23—when (service out of New Zealand) allowed without leave:

(b)

6.24—when (service out of New Zealand) allowed with leave:

(c)

6.25—court’s discretion whether to assume jurisdiction:

(d)

6.27—notice to defendant served outside New Zealand:

(e)

6.32—subpart does not apply to service in Australia of documents for or in certain Trans-Tasman proceedings.

(3)

Without limiting subclause (1), the necessary modifications to DCR 6.25 include that the references in it to DCR 5.51 are to be read as references to rule 43 of these rules (see, in particular, rule 43(8) and (9)).

(5)

DCR 6.30 (relating to service in convention countries) applies, so far as applicable and with all necessary modifications, to proceedings in a court under any of the following Acts:

(c)

those Acts listed in subclause (4)(a), (b), and (d) to (j).

Rule 130: replaced, on 1 July 2014, by rule 12 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Use of Māori language, translations, and sign language

Heading: replaced, on 1 November 2009, by rule 11 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

131 Māori and other languages: District Courts Rules 2014 apply

The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a court:

(a)

1.15—speaking in Māori:

(b)

1.16—translation of documents into te reo Māori:

(c)

1.17—failure to give notice:

(d)

1.18—translation may be ordered by court:

(e)

1.20—sign language.

Rule 131: replaced, on 1 July 2014, by rule 13 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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)

An order reducing the time may be made by—

(a)

a Judge on such terms and conditions (if any) the Judge thinks fit if—

(i)

each person or party affected consents; or

(ii)

whether or not an interlocutory application for the purpose is filed, the Judge considers it appropriate in the circumstances to avoid undue hardship or a risk of harm to any person; or

(b)

a Registrar on such terms and conditions (if any) the Registrar thinks fit if—

(i)

each person or party affected consents; or

(ii)

an interlocutory application for the purpose is filed and the Registrar considers it appropriate in the circumstances to avoid undue hardship or a risk of harm to any person.

(3)

An order extending the time may be made before or after the time has expired by—

(a)

a Judge on such terms and conditions (if any) the Judge thinks fit if—

(i)

each person or party affected consents; or

(ii)

whether or not an interlocutory application for the purpose is filed, the Judge is satisfied that it is in the interests of justice to make the order; or

(b)

a Registrar on such terms and conditions (if any) the Registrar thinks fit if—

(i)

each person or party affected consents; or

(ii)

an interlocutory application for the purpose is filed and the Registrar is satisfied that it is in the interests of justice to make the order.

(4)

An order varying an order made under subclause (2) or (3) may be made by a Judge or Registrar on such terms and conditions (if any) the Judge or Registrar thinks fit if—

(a)

each person or party affected consents; or

(b)

an interlocutory application for the purpose is filed (whether before or after the time has expired) and the Judge or Registrar considers it appropriate in the circumstances.

(5)

An interlocutory application filed under this rule may be made without notice.

(6)

This rule is subject to every Act and any other of these rules.

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

Rule 132(2): replaced, on 22 November 2010, by rule 4 of the Family Courts Amendment Rules (No 3) 2010 (SR 2010/368).

Rule 132(3): replaced, on 22 November 2010, by rule 4 of the Family Courts Amendment Rules (No 3) 2010 (SR 2010/368).

Rule 132(4): replaced, on 22 November 2010, by rule 4 of the Family Courts Amendment Rules (No 3) 2010 (SR 2010/368).

Rule 132(5): replaced, on 22 November 2010, by rule 4 of the Family Courts Amendment Rules (No 3) 2010 (SR 2010/368).

Rule 132(6): replaced, on 22 November 2010, by rule 4 of the Family Courts Amendment Rules (No 3) 2010 (SR 2010/368).

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 Change of parties: District Courts Rules 2014 apply

(1)

The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a court:

(a)

4.49—proceeding not to come to end:

(b)

4.50—procedure on death, bankruptcy, and devolution:

(c)

4.51—devolution when proceeding pending:

(d)

4.52—new parties order:

(e)

4.53—discharge or variation of new parties order:

(f)

4.54—change of name.

(2)

DCR 4.49 applies subject to section 52 of the District Courts Act 1947.

Rule 134: replaced, on 1 July 2014, by rule 14 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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: SR 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:

(b)

section 160(2) and (3) of the Family Proceedings Act 1980.

Compare: SR 1992/109 r 385

Getting more information and admissions

137 Interrogatories: District Courts Rules 2014 apply

The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a court:

(a)

8.12—orders that may be made:

(b)

8.34—interrogatories by notice:

(c)

8.35—duties of party served:

(d)

8.36—limitation of interrogatories by notice:

(e)

8.37—multiple parties:

(f)

8.38—order to answer:

(g)

8.39—contents of statement:

(h)

8.40—objection to answer:

(i)

8.41—who may swear affidavit verifying statement in answer to interrogatories:

(j)

8.42—insufficient answer:

(k)

8.43—incorrect answer to be amended:

(l)

8.44—answers as evidence.

Rule 137: replaced, on 1 July 2014, by rule 15 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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:

(b)

if the proceedings include an application for maintenance under the Family Proceedings Act 1980, an affidavit in form FP 18 (affidavit of financial means and their sources):

(c)

if the proceedings are under the Child Support Act 1991, an affidavit in form CS 28 (affidavit of financial means and their sources).

(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 particulars 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

Rule 139(5)(a): amended, on 27 May 2010, by rule 12 of the Family Courts Amendment Rules 2010 (SR 2010/97).

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.

(2A)

On receipt of an application made in accordance with subclauses (1) and (2), the court may order the party referred to in subclause (1)(a) to file an affidavit stating—

(a)

whether certain documents or classes of documents are or have been in that party’s possession, custody, or power; and

(b)

if the party had the documents or classes of documents but has now parted with the documents or classes of documents, when the party did so and what became of the documents or classes of documents.

(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 against whom the order is made.

(4)

A party against whom an order for discovery is made 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

Rule 141(2A): inserted, on 27 May 2010, by rule 6(1) of the Family Courts Amendment Rules 2010 (SR 2010/97).

Rule 141(3)(b): replaced, on 27 May 2010, by rule 6(2) of the Family Courts Amendment Rules 2010 (SR 2010/97).

Rule 141(4): amended, on 27 May 2010, by rule 6(3) of the Family Courts Amendment Rules 2010 (SR 2010/97).

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: replaced, 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 5 working days after receiving notice of the date and time fixed for the hearing of the application,—

(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

Rule 169(3): amended, on 27 May 2010, by rule 7 of the Family Courts Amendment Rules 2010 (SR 2010/97).

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 2014 apply

(1)

The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a court:

(a)

9.17—order for examination of witness or for letters of request:

(b)

9.20—procedure for examination before examiner:

(c)

9.22—objection to question:

(d)

9.24—depositions as evidence.

(2)

[Revoked]

(3)

The fact that an examination is pending under DCRs 9.17 or 9.20, 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

Rule 171 heading: amended, on 1 July 2014, by rule 16(1) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 171(1): replaced, on 1 July 2014, by rule 16(2) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 171(2): revoked, on 1 July 2014, by rule 16(2) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 171(3): amended, on 1 July 2014, by rule 16(3) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

172 Taking evidence outside New Zealand: District Courts Rules 2014 apply

(1)

The following DCRs apply, so far as applicable and with all necessary modifications:

(a)

9.76—authority to take affidavits in places outside New Zealand:

(b)

9.77—meaning of authenticated deposition:

(c)

9.78—admissibility of authenticated deposition.

(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

Rule 172 heading: amended, on 1 July 2014, by rule 17(1) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 172(1): replaced, on 1 July 2014, by rule 17(2) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Evidence in trans-Tasman proceedings

Heading: inserted, on 1 November 2009, by rule 16 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

173 Interpretation

In rules 173A to 173E, unless the context otherwise requires, terms that are defined in the Evidence Act 2006 have the meanings given to them by that Act.

Rule 173: replaced, on 1 November 2009, by rule 17 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

173A Leave to serve New Zealand subpoena on witness in Australia: District Courts Rules 2014 apply

DCR 9.51 applies, so far as applicable and with all necessary modifications, to proceedings in a court.

Rule 173A: replaced, on 11 October 2013, by rule 13 of the Family Courts (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/347).

Rule 173A heading: amended, on 1 July 2014, by rule 18(1) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 173A: amended, on 1 July 2014, by rule 18(2) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

173B Issue of subpoenas for service in Australia

(1)

A subpoena issued by the court for service on a witness in Australia that requires the witness to testify, whether or not it also requires the witness to produce documents or things, must be in form G 25 (set out in Schedule 1).

(2)

A subpoena issued by the court for service on a witness in Australia that requires the witness to produce documents or things, but does not require the witness to testify, must be in form G 26 (set out in Schedule 1).

(3)

A subpoena referred to in subclause (1) or (2) may be obtained in the same manner and subject to the same conditions as a witness summons under rule 50.

Rule 173B: inserted, on 1 November 2009, by rule 17 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

173C Service of subpoena on witness in Australia

Every statement that, in accordance with section 156 of the Evidence Act 2006, is required to accompany a subpoena that is served on a witness in Australia must be in form G 27 (set out in Schedule 1).

Rule 173C: inserted, on 1 November 2009, by rule 17 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

173CA Application to set aside New Zealand subpoena

The following DCRs apply, so far as applicable, and with all necessary modifications:

(a)

9.53—application to set aside New Zealand subpoena:

(b)

9.54—service of documents on applicant:

(c)

9.55—hearing of application.

Rule 173CA: replaced, on 1 July 2014, by rule 19 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

173D Failure to comply with subpoena

A certificate under section 161 of the Evidence Act 2006 must be in form G 28 (set out in Schedule 1).

Rule 173D: inserted, on 1 November 2009, by rule 17 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

173E Evidence and submissions by remote appearance medium from Australia: District Courts Rules 2014 apply

DCR 9.57 applies, so far as applicable and with all necessary modifications, to proceedings in a court.

Rule 173E: replaced, on 11 October 2013, by rule 15 of the Family Courts (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 (SR 2013/347).

Rule 173E heading: amended, on 1 July 2014, by rule 20(1) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 173E: amended, on 1 July 2014, by rule 20(2) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Conferences

174 Judge may direct that judicial conference be held

To ensure that an application is determined as fairly, inexpensively, simply, and speedily as is consistent with justice, a Judge may direct that a judicial conference be held.

Rule 174: replaced, on 1 November 2009, by rule 18 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

175 Judicial conference: nature and purpose

(1)

Every judicial conference is presided over by a Judge.

(2)

The purpose of a judicial conference is to enable a Judge to 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 necessary to ensure that an application is determined as fairly, inexpensively, simply, and speedily as is consistent with justice.

Rule 175: replaced, on 1 November 2009, by rule 18 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

175A Judicial conference: how convened

(1)

A Registrar must convene a judicial conference if directed to do so by a Judge under rule 52(2)(a).

(2)

A Registrar may convene a judicial conference on his or her own initiative at any time before the hearing of an application if he or she considers it in the best interests of 1 or more of the parties to do so.

Rule 175A: inserted, on 1 November 2009, by rule 18 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

175B Judicial conference: who may attend

(1)

The Registrar must give notice of the date, time, and place of the judicial conference to the parties to the application.

(2)

If a lawyer is acting for a party,—

(a)

notice of the date, time, and place of the judicial conference may be given to the party’s lawyer; and

(b)

notice to a party’s lawyer is to be treated as notice to the party.

(3)

A party, or his or her lawyer, may be required to attend the judicial conference.

(4)

A party who is required to attend a judicial conference may arrange for his or her lawyer to attend with him or her.

Rule 175B: inserted, on 1 November 2009, by rule 18 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

175C Judicial conference: adjournment

The Judge presiding over a judicial conference may adjourn the judicial conference at any time and to any place.

Rule 175C: inserted, on 1 November 2009, by rule 18 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

175D Judicial conference: orders and directions pending determination of application

(1)

At a judicial conference, the presiding Judge may, pending determination of an application, make any orders and directions that the Judge is empowered to make by—

(a)

the family law Act under which the proceedings arise; and

(b)

these rules.

(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)

issue any warrant or summons:

(l)

direct the Registrar to fix a date, 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.

Rule 175D: inserted, on 1 November 2009, by rule 18 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

Rule 175D(2)(l): amended, on 27 May 2010, by rule 12 of the Family Courts Amendment Rules 2010 (SR 2010/97).

175E Judicial conference: order determining application

(1)

This rule applies when a party to the proceedings on whom service has not been dispensed with altogether—

(a)

has been served with the application; and

(b)

has been notified that he or she is required to attend a judicial conference; and

(c)

has failed to file and serve a notice of defence or notice of intention to appear—

(i)

within the time specified in or under rule 41; or

(ii)

at any time before the judicial conference; and

(d)

does not attend, or is not represented by his or her lawyer, at the judicial conference.

(2)

At the judicial conference, the presiding Judge may proceed in accordance with rule 55(2), to hear the application. The judicial conference is then to be treated as the hearing of the application.

Rule 175E: inserted, on 1 November 2009, by rule 18 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

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)

The purpose of a settlement conference is to settle the issues in dispute between the parties.

(2)

A Registrar must convene a settlement conference if directed to do so by a Judge under rule 52(2)(b) and, in accordance with the direction, require any of the following persons to attend:

(a)

the parties to the application:

(b)

the lawyers representing the parties to the 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)

Rule 178(1): replaced, on 1 November 2009, by rule 19 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

Rule 178(2): replaced, on 1 November 2009, by rule 19 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

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)

179A Settlement conference becomes judicial conference if issues in dispute cannot be settled

(1)

If the Judge presiding over a settlement conference is satisfied that the issues in dispute between the parties or intended parties cannot be settled, the Judge must, as soon as practicable, indicate to the persons attending the conference that he or she has formed that view.

(2)

When an indication has been given under subclause (1), the settlement conference becomes a judicial conference and the Judge may make any orders and directions that a Judge may make under rule 175D.

Rule 179A: inserted, on 27 May 2010, by rule 8 of the Family Courts Amendment Rules 2010 (SR 2010/97).

180 Change of Judge after settlement 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

Rule 180 heading: amended, on 24 December 2004, by rule 3 of the Family Courts Amendment Rules (No 2) 2004 (SR 2004/468).

Rule 180 heading: amended, on 1 July 2004, by rule 4(1) of the Family Courts Amendment Rules 2004 (SR 2004/165).

Rule 180(1): amended, on 24 December 2004, by rule 3 of the Family Courts Amendment Rules (No 2) 2004 (SR 2004/468).

Rule 180(1): amended, on 1 July 2004, by rule 4(2) of the Family Courts Amendment Rules 2004 (SR 2004/165).

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

Discontinuance

Heading: inserted, on 1 March 2014, by rule 17 of the Family Courts Amendment Rules 2014 (LI 2014/3).

195A Discontinuance

(1)

At any time before or during the hearing of his or her substantive application, an applicant may make an interlocutory application without notice to the court to discontinue his or her substantive application against,—

(a)

if there is only 1 respondent, that respondent; or

(b)

if there is more than 1 respondent,—

(i)

1 or more of the respondents; or

(ii)

all respondents.

(2)

An interlocutory application made under subclause (1) must be determined by—

(a)

a Registrar, if the Registrar has power to hear and determine the applicant’s substantive application; or

(b)

a Judge, in any other case.

(3)

Before determining an interlocutory application made under subclause (1), the Registrar or the Judge may, under rule 224, direct the applicant to file an affidavit in support.

(4)

When determining an interlocutory application made under subclause (1), the Registrar or Judge may—

(a)

make a discontinuance order on the interlocutory application discontinuing the applicant’s substantive application against 1 or more specified respondents; or

(b)

dismiss the interlocutory application.

(5)

If a discontinuance order is made under subclause (4)(a),—

(a)

the applicant’s substantive application ends against those respondents specified in the order; and

(b)

the Registrar must serve on every party to the applicant’s substantive application a discontinuance order in form G 29.

(6)

The discontinuance of an applicant’s substantive application does not affect the determination of costs in respect of that application.

Rule 195A: inserted, on 1 March 2014, by rule 17 of the Family Courts Amendment Rules 2014 (LI 2014/3).

195B Court may set discontinuance aside

(1)

A respondent against whom a substantive application is discontinued under rule 195A may make an interlocutory application to the court for an order setting the discontinuance aside.

(2)

An interlocutory application under subclause (1) must be made—

(a)

within 21 working days after the date on which the discontinuance order was made under rule 195A; or

(b)

within such further time as the court, on application, allows.

(3)

Before hearing and determining an interlocutory application made under subclause (1), the Judge may, under rule 224, direct the respondent making the interlocutory application to file an affidavit in support.

(4)

On the hearing of an interlocutory application made under subclause (1), the Judge may make an order setting the discontinuance aside if the Judge is satisfied that in all the circumstances it is appropriate to do so.

Rule 195B: inserted, on 1 March 2014, by rule 17 of the Family Courts Amendment Rules 2014 (LI 2014/3).

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—

(i)

signed by the Judge (or by the Registrar, in accordance with rule 12(4)); or

(ii)

authenticated by the Judge in accordance with subclause (4A); and

(b)

is endorsed with the date and time that purport to be the date on which and the time at which—

(i)

the Judge (or Registrar) signed the judgment in accordance with paragraph (a)(i); or

(ii)

the Judge authenticated the judgment in accordance with paragraph (a)(ii).

(4A)

If an order is made by a Judge on an application without notice and that order is to be transmitted electronically to the Registrar at the court in which the application was filed, the order may be authenticated by the Judge by any electronic means that adequately identifies the Judge.

(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

Rule 197(4): replaced, on 1 March 2014, by rule 18 of the Family Courts Amendment Rules 2014 (LI 2014/3).

Rule 197(4A): inserted, on 1 March 2014, by rule 18 of the Family Courts Amendment Rules 2014 (LI 2014/3).

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 constable.

(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)

Rule 206(2): amended, on 1 July 2005, by rule 17 of the Family Courts Amendment Rules 2005 (SR 2005/101).

Rule 206(3): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Rule 206(6): amended, on 26 April 2005, by section 8(1) of the Relationships (Statutory References) Act 2005 (2005 No 3).

Costs

207 Costs at discretion of court

(1)

The court has discretion to determine the costs of—

(a)

any proceeding:

(b)

any step in a proceeding:

(c)

any matter incidental to a proceeding.

(2)

In exercising that discretion, the court may apply any or all of the following DCRs, so far as applicable and with all necessary modifications:

(a)

14.2—principles applying to determination of costs:

(b)

14.3—categorisation of proceedings:

(c)

14.4—appropriate daily recovery rates:

(d)

14.5—determination of reasonable time:

(e)

14.6—increased costs and indemnity costs:

(f)

14.7—refusal of, or reduction in, costs:

(g)

14.8—costs in interlocutory applications:

(h)

14.9—costs may be determined by different Judge:

(i)

14.10—written offers without prejudice except as to costs:

(j)

14.11—effect on costs:

(k)

14.12—disbursements.

(3)

This rule is subject to the provisions of the family law Act under which the proceedings are brought.

Rule 207: replaced, on 1 July 2014, by rule 21 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

207A Enforcement of order for costs

An order for the payment of costs may be enforced in the same manner as an order of a District Court for the payment of money.

Rule 207A: inserted, on 1 November 2009, by rule 20 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

207B Security for costs: District Courts Rules 2014 apply

The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a court:

(a)

1.10—security:

(b)

5.48—power to make order for security for costs.

Rule 207B: replaced, on 1 July 2014, by rule 22 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Investment of funds in court

Heading: replaced, on 1 July 2014, by rule 23 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

208 Investment of funds in court

The following DCRs apply, so far as applicable and with all necessary modifications, to a proceeding in a court:

(a)

2.13—application for order:

(b)

2.14—powers of court in relation to application:

(c)

2.15—disposal of securities and income.

Rule 208: replaced, on 1 July 2014, by rule 23 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Inspection and testing of property

Heading: replaced, on 1 July 2014, by rule 23 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

208A Inspection and testing of property

The following DCRs apply, so far as applicable and with all necessary modifications, to a proceeding in a court:

(a)

9.25—order for inspection, etc:

(b)

9.26—notice of application.

Rule 208A: replaced, on 1 July 2014, by rule 23 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Interim preservation, etc, of property

Heading: replaced, on 1 July 2014, by rule 23 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

208B Interim preservation, etc, of property

The following DCRs apply, so far as applicable and with all necessary modifications, to a proceeding in a court:

(a)

7.47—preservation of property:

(b)

7.48—sale of perishable property before hearing:

(c)

7.49—order to transfer part of property to person with interest in property:

(d)

7.50—interim payment of income to person with interest in income.

Rule 208B: replaced, on 1 July 2014, by rule 23 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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:

(b)

section 173 of the Family Proceedings Act 1980:

(c)

section 118(3) of the Child Support Act 1991.

(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 Contempt of court: District Courts Rules 2014 apply

DCR 21.6 and forms 114 and 115 of the District Courts Rules 2014 (which relate to contempt) apply, so far as applicable and with all necessary modifications, to a proceeding in a court.

Rule 214: replaced, on 1 July 2014, by rule 24 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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

(ii)

in proceedings under the Child Support Act 1991 or the Family Proceedings Act 1980 or the Care of Children Act 2004, serious injury or undue hardship, or risk to the personal safety of the applicant, or any child of the applicant’s family, 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

(iv)

in proceedings under the Property (Relationships) Act 1976, irreparable injury; or

(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.

Rule 220(2)(a)(ii): amended, on 1 July 2005, by rule 18 of the Family Courts Amendment Rules 2005 (SR 2005/101).

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

(1)

A party served with an application who intends to oppose the application must file and serve a notice of opposition.

(2)

A notice of opposition must—

(a)

state the party’s intention to oppose the application and the grounds of opposition; and

(b)

refer to any particular enactments or principles of law or judicial decisions on which the party relies.

(3)

A notice of opposition must be filed and served on every other party—

(a)

within the period of 10 working days after service of the application; but

(b)

if the hearing date for the application is within that 10-working-day period, not less than 3 working days before the hearing date.

Rule 230: replaced, on 17 November 2011, by rule 8 of the Family Courts Amendment Rules 2011 (SR 2011/349).

230A Affidavit to be filed with notice of opposition

An affidavit setting out evidence in support of the notice of oppostion must be filed and served with the notice of opposition.

Rule 230A: inserted, on 17 November 2011, by rule 8 of the Family Courts Amendment Rules 2011 (SR 2011/349).

230B Affidavit in reply

(1)

Any person served with a notice of opposition and supporting affidavit may reply to any new matters raised in the notice of opposition or supporting affidavit.

(2)

A reply must be by an affidavit.

(3)

An affidavit in reply must be filed and served on every other party—

(a)

within the period of 5 working days after service of the notice of opposition; but

(b)

if the hearing date for the application is within that 5-working-day period, by 1 pm on the working day before that hearing date.

Rule 230B: inserted, on 17 November 2011, by rule 8 of the Family Courts Amendment Rules 2011 (SR 2011/349).

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

(1)

This Part contains special rules for proceedings under certain family law Acts.

(2)

It should be read with, and contains rules that modify, all other Parts of these rules.

(4)

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

Rule 239(3)(e): amended, on 31 March 2014, by rule 26 of the Family Courts Amendment Rules (No 2) 2014 (LI 2014/4).

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

(iii)

a payment referred to in the proviso to section 25(1), or in section 25(2), of the Act:

(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)

Rule 245(1)(b): amended, on 26 April 2005, by section 8(1) of the Relationships (Statutory References) Act 2005 (2005 No 3).

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):

(aa)

section 103B (appeal by respondent from determination under Part 6A):

(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):

(e)

section 113 (power to set aside agreements).

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 one 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 warrants to seize property

(1)

A Registrar must note on a request for the issue of a warrant to seize property the precise time of the request.

(2)

If a warrant to seize property is issued, the Registrar must endorse the warrant with the precise time of the request.

(3)

If more than 1 warrant to seize property 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 warrant to seize property issued under the District Courts Act 1947.

Compare: SR 1981/261 r 83; SR 1992/58 r 55

Rule 270 heading: replaced, on 14 April 2014, by rule 4(1) of the Family Courts Amendment Rules (No 3) 2013 (SR 2013/414).

Rule 270(1): amended, on 14 April 2014, by rule 4(2) of the Family Courts Amendment Rules (No 3) 2013 (SR 2013/414).

Rule 270(2): amended, on 14 April 2014, by rule 4(2) of the Family Courts Amendment Rules (No 3) 2013 (SR 2013/414).

Rule 270(3): amended, on 14 April 2014, by rule 4(2) of the Family Courts Amendment Rules (No 3) 2013 (SR 2013/414).

Rule 270(4): replaced, on 14 April 2014, by rule 4(3) of the Family Courts Amendment Rules (No 3) 2013 (SR 2013/414).

Rule 270(4): amended, on 1 July 2014, by rule 25 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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 Māori 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

Rule 271(b): amended, on 1 July 2009, pursuant to section 30(2)(a) of the Māori Trustee Amendment Act 2009 (2009 No 12).

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

(b)

is subject to sections 193(3) and 194(6) of the Act.

(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 39 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

Rule 272(5): amended, on 1 July 2013, by rule 4 of the Family Courts Amendment Rules 2013 (SR 2013/181).

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 constable

(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 constable, it is sufficient service to deliver the document to be served to any constable.

Compare: SR 1989/295 r 40

Rule 283 heading: amended, on 1 October 2008, pursuant to section 116(a)(i) of the Policing Act 2008 (2008 No 72).

Rule 283(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

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

(b)

under section 125 of the Act.

(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

292A Mediation conference becomes judicial conference if agreement cannot be reached

(1)

If the Judge presiding over a mediation conference is satisfied that no agreement can be reached on a solution for the problem in respect of which the exercise of the court’s jurisdiction is sought, the Judge must, as soon as practicable, indicate to the persons attending the conference that he or she has formed that view.

(2)

When an indication has been given under subclause (1), the mediation conference becomes a judicial conference and the Judge may make any orders and directions that a Judge may make under rule 295A.

(3)

When a mediation conference becomes a judicial conference, any of the following persons present must leave the conference room if requested to do so by the Judge:

(a)

the child or young person who is the subject of the proceedings in respect of which the mediation conference was held:

(b)

any other person who is not referred to in rule 294(3).

Rule 292A: inserted, on 27 May 2010, by rule 9 of the Family Courts Amendment Rules 2010 (SR 2010/97).

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

(ii)

under section 125 of the Act; and

(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

(ii)

whether an order should be made under section 78 or section 88 or section 92 of the Act pending the determination of the application; 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)

[Revoked]

Rule 295(3): revoked, on 1 November 2009, by rule 25 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

295A Judicial conference: orders and directions pending determination of application

(1)

At a judicial conference, the presiding Judge may, pending determination of an application, make any orders and directions that the Judge is empowered to make by—

(a)

the Act; or

(b)

these rules.

(2)

Without limiting the generality of subclause (1), the Judge may do any of the following:

(a)

make a direction under section 74 of the Act:

(b)

make an order that the court is empowered to make under section 78, 88, or 92 of the Act:

(c)

make an order that 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 referred to in paragraph (b):

(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.

Rule 295A: inserted, on 1 November 2009, by rule 26 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

295B Judicial conference: order determining application

(1)

This rule applies where a party to the proceedings on whom service is not altogether dispensed with—

(a)

has been served personally with the application (proved in accordance with rule 127); and

(b)

has been notified that he or she is required to attend a judicial conference; and

(c)

has failed to file and serve a notice of intention to appear—

(i)

within the time specified in rule 291(2) or under rule 41(b); or

(ii)

at any time before the judicial conference; and

(d)

does not attend, or is not represented by his or her lawyer, at the judicial conference.

(2)

At the judicial conference, the presiding Judge may proceed, in accordance with rule 55(2), to hear the application. The judicial conference is then to be treated as the hearing of the application.

Rule 295B: inserted, on 1 November 2009, by rule 26 of the Family Courts Amendment Rules (No 2) 2009 (SR 2009/292).

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):

(b)

rule 171 (evidence by deposition: District Courts Rules 2014 apply):

(c)

rule 172 (taking evidence outside New Zealand: District Courts Rules 2014 apply).

Compare: SR 1989/295 r 58

Rule 299(3)(b): amended, on 1 July 2014, by rule 26(1) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

Rule 299(3)(c): amended, on 1 July 2014, by rule 26(2) of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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 2 or Part 3 of the Act requires the consent of any person or organisation; or

(b)

in proceedings under Part 2 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 2 or Part 3 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 constable, 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 constable; 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 constable 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 constable were a party to the proceedings in the place of the party.

Compare: SR 1989/295 r 68

Rule 301(1): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Rule 301(1)(b): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Rule 301(3): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

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

(1)

In this rule and rules 305 to 332, unless the context otherwise requires,—

approved form means a form approved by the Secretary for Justice under rule 62AB for use by service providers in proceedings under the Act

objector means a respondent or an associated respondent who notifies the court under section 51E(2)(b) of the Act that he or she objects to a direction to—

(a)

undertake an assessment; and

(b)

attend a non-violence programme

prescribed form means a form used or issued by the court or a Registrar and prescribed in Schedule 5

property order means one 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.

(2)

For the purposes of rule 312 and the forms in Schedule 5, applicant includes—

(a)

a person for whose safety a temporary protection order has been issued under section 124N of the Act; and

(b)

a victim of an offence for whose protection a protection order has been made under section 123B of the Sentencing Act 2002.

(3)

For the purposes of rule 319, applicant includes a person for whose safety a temporary protection order has been issued under section 124N of the Act.

(4)

For the purposes of this rule and rules 307, 312, and 323 and the forms in Schedule 5, respondent includes—

(a)

a person against whom a temporary protection order is issued under section 124N of the Act; and

(b)

an offender against whom a protection order is made under section 123B of the Sentencing Act 2002.

(5)

For the purposes of rules 315 and 327, respondent includes a person against whom a temporary protection order is issued under section 124N of the Act.

Rule 304(1) approved form: inserted, on 1 October 2014, by rule 9(1) of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

Rule 304(1) objector: replaced, on 1 October 2014, by rule 9(2) of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

Rule 304(1) prescribed form: inserted, on 1 October 2014, by rule 9(1) of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

Rule 304(2): inserted, on 1 July 2010, by rule 4 of the Family Courts Amendment Rules (No 2) 2010 (SR 2010/122).

Rule 304(3): inserted, on 1 July 2010, by rule 4 of the Family Courts Amendment Rules (No 2) 2010 (SR 2010/122).

Rule 304(4): inserted, on 1 July 2010, by rule 4 of the Family Courts Amendment Rules (No 2) 2010 (SR 2010/122).

Rule 304(5): inserted, on 1 July 2010, by rule 4 of the Family Courts Amendment Rules (No 2) 2010 (SR 2010/122).

305 Forms

(1)

In proceedings to which the Act applies,—

(a)

approved forms must be used by service providers when—

(i)

giving notice to the Registrar under any of sections 51I to 51N of the Act:

(ii)

providing a report to the Registrar under section 51R of the Act; and

(b)

prescribed forms must be used by the court, a Registrar, and any other persons.

(2)

The information sheet to be filed with every application under the Act must be in form DV 4A (and if an application under this Act is filed with 1 or more applications under any other Act or Acts, only 1 information sheet in form DV 4A is required).

Rule 305: replaced, on 1 October 2014, by rule 10 of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

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 relates to the variation of a protection order):

(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

Rule 307(1)(b): replaced, on 1 October 2014, by rule 11 of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

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 3 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 one of the applicants resides; or

(b)

in the court nearest to the place specified by the applicant or one 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—

(a)

assign a hearing date under section 76(3) of the Act; and

(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)

316A Information about respondent available from criminal court

If a respondent to an application under the Act for a protection order is or has been involved in criminal proceedings, the Criminal Procedure (Transfer of Information) Regulations 2013 may apply.

Rule 316A: inserted, on 1 September 2015, by rule 4 of the Family Courts Amendment Rules 2015 (LI 2015/155).

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 undertake assessment and attend non-violence programme

(1)

A notice of objection, under section 51E(2)(b) 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 applicant; 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 10 working 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 51E(2)(b) of the Act before it is served under subclause (2)(a).

Compare: SR 1996/148 rr 67(2), 83

Rule 319 heading: replaced, on 1 October 2014, by rule 12(1) of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

Rule 319(1): amended, on 1 October 2014, by rule 12(2) of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

Rule 319(2)(a): replaced, on 1 July 2010, by rule 5 of the Family Courts Amendment Rules (No 2) 2010 (SR 2010/122).

Rule 319(2)(b): amended, on 17 November 2011, by rule 10(2) of the Family Courts Amendment Rules 2011 (SR 2011/349).

Rule 319(3): amended, on 1 October 2014, by rule 12(3) of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

320 How notice of objection to be dealt with

(1)

A Registrar may exercise the court’s power under section 51F 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),—

(a)

the objector may make written submissions in respect of the objection; and

(b)

the objection may be dealt with on the papers.

(4)

If the objector does wish to be heard,—

(a)

the Registrar must assign a hearing date in accordance with section 51E(3)(a) of the Act; and

(b)

the objector may appear at the hearing and be heard in person or by his or her lawyer.

(5)

[Revoked]

Compare: SR 1996/148 r 84

Rule 320(1): amended, on 1 October 2014, by rule 13(1) of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

Rule 320(3): replaced, on 1 October 2014, by rule 13(2) of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

Rule 320(4): replaced, on 1 October 2014, by rule 13(2) of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

Rule 320(5): revoked, on 1 October 2014, by rule 13(2) of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

321 Notice of result of objection

As soon as practicable after a decision is made on an objection under section 51F(1) of the Act confirming, varying, or discharging a direction, a Registrar must—

(a)

arrange for the decision to be drawn up in form DV 25 (notice of result of objection to direction to undertake assessment and attend non-violence programme); and

(b)

arrange for a copy of the decision to be served on each of the parties.

Rule 321: replaced, on 1 October 2014, by rule 14 of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

322 Request by provider for variation of programme
[Revoked]

Rule 322: revoked, on 1 October 2014, by rule 15 of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

323 Witness summons calling respondent or associated respondent before court

(1)

If a Registrar under section 51O of the Act, or a Judge under section 51P of the Act, calls a respondent or an associated respondent to appear before the court, the summons must be in form DV 13.

(2)

Rule 321 applies, so far as applicable and with all modifications, to a decision of the court made under section 51Q(1) of the Act to confirm, vary, or discharge a direction.

Rule 323: replaced, on 1 October 2014, by rule 16 of the Family Courts Amendment Rules (No 5) 2014 (LI 2014/214).

324 Enforcement of occupation orders and tenancy orders: District Courts Rules 2014 apply

DCR 19.65 (which relates to warrants to recover land) applies, so far as applicable and with all necessary modifications, to the enforcement of occupation orders and tenancy orders made under the Act.

Rule 324: replaced, on 1 July 2014, by rule 28 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

325 Enforcement of ancillary furniture orders and furniture orders: District Courts Rules 2014 apply

DCR 19.61 (which relates to warrant for recovery of chattels) applies, so far as applicable and with all necessary modifications, to the enforcement of ancillary furniture orders and furniture orders made under the Act.

Rule 325: replaced, on 1 July 2014, by rule 29 of the Family Courts Amendment Rules (No 4) 2014 (LI 2014/180).

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 one 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 o