Family Courts Amendment Rules 2005

2005/101

Family Courts Amendment Rules 2005


Note

These rules are administered in 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


1 Title
  • (1) These rules are the Family Courts Amendment Rules 2005.

    (2) In these rules, the Family Courts Rules 20021 are called the principal rules.

2 Commencement
  • These rules come into force on 1 July 2005.

3 Special rules for proceedings under certain family law Acts
  • Rule 6(e) of the principal rules is amended by omitting the expression Guardianship Act 1968, and substituting the expression Care of Children Act 2004.

4 Powers of Registrars under rules
  • Rule 12(2)(a) of the principal rules is amended by omitting the words penal institution, and substituting the word prison.

5 Special rules relating to affidavits
  • Rule 21(f) of the principal rules is amended by omitting the expression Guardianship Act 1968, and substituting the expression Care of Children Act 2004.

6 Applications that may be made without notice
  • Rule 24(2)(a)(i) of the principal rules is amended by omitting the expression Guardianship Act 1968, and substituting the expression Care of Children Act 2004.

7 Two or more applications may be made together
  • Rule 25(1)(b) of the principal rules is amended by omitting the expression Guardianship Act 1968, and substituting the expression Care of Children Act 2004.

8 Documents relating to earlier proceedings
  • Rule 26(3) of the principal rules is amended by adding, after the expression Guardianship Act 1968, the words or under the Care of Children Act 2004.

9 Special rules relating to service
  • Rule 37 of the principal rules is amended by revoking paragraphs (b) to (f), and substituting the following paragraphs:

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

    • (c) Children, Young Persons, and Their Families Act 1989 (see, for example, rules 280, 281, and 284):

    • (d) Family Proceedings Act 1980, Care of Children Act 2004 (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).

10 Ascertaining wishes of child or young person
  • (1) Rule 54 of the principal rules is amended by inserting in the heading, after the word wishes, the words or views.

    (2) Rule 54(a) and (b) of the principal rules is amended by inserting, after the word wishes in both places where it occurs, the words or views.

11 Party need not have lawyer
  • Rule 80(2) of the principal rules is amended by revoking paragraph (d), and substituting the following paragraph:

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

12 Persons who may start, take part in, or defend proceedings only through representatives or managers
  • Rule 89(4) of the principal rules is amended by revoking paragraph (e), and substituting the following paragraph:

    • (e) section 31(2)(e) of the Care of Children Act 2004:.

13 Certain documents must not be served on certain non-working days
  • Rule 104(e) of the principal rules is amended by revoking subparagraph (ii), and substituting the following subparagraph:

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

14 Certain documents to be served by personal service
  • Rule 105(1)(a) of the principal rules is amended by revoking subparagraph (iii), and substituting the following subparagraph:

    • (iii) Care of Children Act 2004:.

15 New rule 111 substituted
  • The principal rules are amended by revoking rule 111, and substituting the following rule:

    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

16 District Courts Rules 1992 apply
  • (1) Rule 130(3) of the principal rules is amended by inserting, after the expression Rule 246, the word of.

    (2) Rule 130(3) of the principal rules is amended by revoking paragraph (a), and substituting the following paragraph:

    • (a) Care of Children Act 2004:.

17 Service of judgments
  • Rule 206(2) of the principal rules is amended by omitting the expression Guardianship Act 1968, and substituting the expression Care of Children Act 2004.

18 Applications that may be made without notice
  • Rule 220(2)(a)(ii) of the principal rules is amended by omitting the expression Guardianship Act 1968, and substituting the expression Care of Children Act 2004.

19 Overview of this Part
  • Rule 239(3)(e) of the principal rules is amended by omitting the expression Guardianship Act 1968, and substituting the expression Care of Children Act 2004.

20 Heading above rule 333 amended
  • The heading above rule 333 of the principal rules is amended by omitting the expression Guardianship Act 1968, and substituting the expression Care of Children Act 2004.

21 Interpretation
  • Rule 333 of the principal rules is amended by revoking the definitions of Acts and Guardianship Act, and substituting, in their appropriate alphabetical order, the following definitions:

    Acts means the Family Proceedings Act and the Care of Children Act

    Care of Children Act means the Care of Children Act 2004.

22 Forms
  • Rule 334 of the principal rules is amended by adding, as subclause (2), the following subclause:

    • (2) Form F 15A in Schedule 6 must be used for an application to the Court for a declaration of paternity under section 10(2) of the Status of Children Act 1969.

23 Applications without notice
  • Rule 335(1) of the principal rules is amended by revoking paragraphs (a) to (d), and substituting the following paragraphs:

    • (a) section 76 of the Care of Children Act (authority to use faxed copy of warrant):

    • (b) section 77 of the Care of Children Act (preventing removal of child from New Zealand):

    • (c) section 76 of the Care of Children Act as applied by section 119 of that Act (enforcing order under section 105(2) of that Act for return of child):

    • (d) section 143(5) of the Care of Children Act (order dispensing with security for appeal):.

24 New rules 336A to 336C inserted
  • The principal rules are amended by inserting, after rule 336, the following rules:

    336A Applications for warrants and delivery of child
    • (1) This rule applies to every application under section 72(2) or section 73(2) of the Care of Children Act seeking a warrant directing that a child be delivered—

      • (a) to the applicant; or

      • (b) to some other person or authority named in the warrant on behalf of the applicant.

      (2) An application to which this rule applies must be accompanied by a written statement indicating what arrangements are being made for the child to be delivered to the applicant after execution of the warrant.

    336B Notice of intention to appear in relation to interim parenting order
    • (1) This rule applies to a parent who is a party to an interim parenting order made under section 48(1) of the Care of Children Act, if—

      • (a) the interim order was made on an application without notice; and

      • (b) the parent has, under that order, neither the role of providing day-to-day care for, nor contact with, the child; and

      • (c) the parent wishes to be heard on whether a final order should be substituted for the interim order.

      (2) A parent to whom this rule applies must—

      • (a) use foam FP 36B in Schedule 6 to give notice of his or her intention to appear in relation to the interim parenting order; and

      • (b) file with the form an affidavit that sets out—

        • (i) sufficient particulars to indicate the reasons for giving notice; and

        • (ii) sufficient information to inform the Court of the facts being relied on.

    336C Notice of intention to appear in relation to other interim orders
    • (1) This rule applies to a person who is a party to an interim order made under section 53(2) or section 54(1) of the Care of Children Act (which relate to certain proceedings under the Family Proceedings Act or under the Domestic Violence Act 1995), if—

      • (a) the interim order was made on an application without notice; and

      • (b) the person has, under that order, neither the role of providing day-to-day care for, nor contact with, the child; and

      • (c) the person wishes to be heard on whether a final order should be substituted for the interim order.

      (2) A person to whom this rule applies must—

      • (a) use form FP 36B in Schedule 6 to give notice of his or her intention to appear in relation to the interim order; and

      • (b) file with the form an affidavit that sets out—

        • (i) sufficient particulars to indicate the reasons for giving notice; and

        • (ii) sufficient information to inform the Court of the facts being relied on.

25 New rule 350A inserted
  • The principal rules are amended by inserting, after rule 350, the following rule:

    350A Request to speak on child's cultural background
    • A party to proceedings under the Care of Children Act who asks the Court (under section 136(1) of that Act) to hear a person speak on a child's cultural background, or any aspects of it that may be relevant to a matter in issue in the proceedings, must make that request in writing.

26 Restrictions on fixing date and time for hearing
  • Rule 351(a) of the principal rules is amended by revoking subparagraph (ii), and substituting the following subparagraphs:

    • (ii) before the time for filing a notice of defence, as specified in rule 41, has expired; or

    • (iii) where notice must be given under section 138 of the Care of Children Act, before the expiry of the period specified in the notice; and.

27 Fixing date and time for hearing: notice of defence filed
  • Rule 352 of the principal rules is amended by adding the following subclauses:

    • (5) The Registrar must give a person to whom section 138(1) of the Care of Children Act applies reasonable prior notice in writing of the date and time of the hearing and the period within which the person must advise the Court whether he or she intends to attend the hearing.

    • (6) The Registrar must, before the hearing referred to in subclause (5), give each party to the proceedings—

      • (a) details of all persons (if any) who have advised the Registrar, after receiving the notice referred to in subclause (5), that they intend to attend the hearing; and

      • (b) a reasonable opportunity to object to those persons attending.

28 Fixing date and time for hearing: no notice of defence filed
  • (1) Rule 353(b) of the principal rules is amended by revoking subparagraph (ii), and substituting the following subparagraph:

    • (ii) to the respondent if he or she has filed an address for service, or has been served with the documents issued for service in relation to the application; and.

    (2) Rule 353 of the principal rules is amended by adding the following paragraphs:

    • (c) the Registrar must give a person to whom section 138(1) of the Care of Children Act applies reasonable prior notice in writing of the date and time of the hearing and the period within which the person must advise the Court whether he or she intends to attend the hearing; and

    • (d) the Registrar must, before the hearing referred to in paragraph (c), give each party to the proceedings—

      • (i) details of all persons (if any) who have advised the Registrar, after the notice referred to in paragraph (c), that they intend to attend the hearing; and

      • (ii) a reasonable opportunity to object to those per-sons attending.

29 New rule 362A inserted
  • The principal rules are amended by inserting, after rule 362, the following rule:

    362A Costs of contravention of parenting order
    • A party to a parenting order (party A) who applies under section 71 of the Care of Children Act for an order requiring another party to the parenting order (party B) to pay the costs incurred by party A because of party B's contravention of the parenting order must include with that application an affidavit setting out details of those costs.

30 Procedure on arrest of respondent other than in respect of an offence
  • Rule 369(6) of the principal rules is amended by omitting the words Superintendent of the penal institution, and substituting the words manager of the prison.

31 Schedule 1 amended (form G 7)
  • (1) Form G 7 in Schedule 1 of the principal rules is amended by—

    • (a) reversing the order of the consecutive items Age (in years at date of application) and Date of birth ; and

    • (b) omitting from the item Age (in years at date of application) the words (in years at date of application).

    (2) Form G 7 in Schedule 1 of the principal rules is amended by inserting, after the item *Country of residence, the following item:

    .

    (3) Form G 7 in Schedule 1 of the principal rules is amended by inserting, after the item Country of residence, the following item:

    .

    (4) Form G 7 in Schedule 1 of the principal rules is amended by omitting from the table in item Children affected by the application the column headed Age at application.

32 Schedule 2 amended (forms A 4, A 5, A 6, and A 9)
  • (1) Form A 4 in Schedule 2 of the principal rules is amended by omitting the word prescence in both places where it occurs, and substituting in each case the word presence.

    (2) Form A 5 in Schedule 2 of the principal rules is amended by omitting the word prescence in both places where it occurs, and substituting in each case the word presence.

    (3) Form A 6 in Schedule 2 of the principle rules is amended—

    • (a) by omitting from paragraph (a) the words are entitled to the custody of, and substituting the words have the role of providing day-to-day care for ; and

    • (b) by omitting the words lose the custody of, and substituting the words lose the role of providing day-to-day care for.

    (4) Form A 9 in Schedule 2 of the principal rules is amended by omitting the word interm, and substituting the word interim.

33 Schedule 5 amended (forms DV 14 and DV 15)
  • (1) Form DV 14 in Schedule 5 of the principal rules is amended by omitting from condition 1(b)(v)(B) the words custody of, or access to,, and substituting the words the role of providing day-to-day care for, or access to, or contact with, or custody of,.

    (2) Form DV 15 in Schedule 5 of the principal rules is amended by omitting from condition 1(b)(v)(B) the words custody of, or access to,, and substituting the words the role of providing day-to-day care for, or access to, or contact with, or custody of,.

34 Schedule 6 list of forms and its title amended
  • Schedule 6 of the principal rules is amended by revoking the list headed Forms for proceedings under Family Proceedings Act 1980 and Guardianship Act 1968, and the title to that list, and substituting the heading and list in Schedule 1.

35 Schedule 6 amended by substitution of forms
  • Schedule 6 of the principal rules is amended—

    • (a) by revoking form FP 1, and substituting the form FP 1 set out in Schedule 2; and

    • (b) by revoking form FP 4, and substituting the form FP 4 set out in Schedule 2; and

    • (c) by revoking form FP 32, and substituting the form FP 32 set out in Schedule 2; and

    • (d) by revoking form FP 33, and substituting the form FP 33 set out in Schedule 2; and

    • (e) by revoking form FP 36, and substituting the form FP 36 set out in Schedule 2.

36 Schedule 6 amended by insertion of forms
  • Schedule 6 of the principal rules is amended by inserting, in their appropriate numerical order, the forms FP 15A, FP 35A, FP 36A, FP 36B, FP 49A, and FP 49B set out in Schedule 3.

37 Amendments to other forms in Schedule 6 (forms FP 2, FP 6, FP 10 to FP 14, FP 16, FP 17, FP 29, FP 31)
  • (1) Form FP 2 in Schedule 6 of the principal rules is amended—

    • (a) by omitting the words custody of a child, and substituting the words role of providing day-to-day care for a child ; and

    • (b) by omitting from the section headed Information the words custody of the, in both places where they occur, and substituting in each case the words role of providing day-to-day care for the.

    (2) Form FP 6 in Schedule 6 of the principal rules is amended—

    • (a) by adding, to the title of the form, the words Section 69(1)(a), Care of Children Act 2004 ; and

    • (b) by inserting in the first paragraph, after the expression Family Proceedings Act 1980, the words (including as applied by section 66(b) of the Care of Children Act 2004).

    (3) Form FP 10 in Schedule 6 of the principal rules is amended by omitting the word custody, in both places where it occurs, and substituting in each case the words day-to-day care.

    (4) Form FP 11 in Schedule 6 of the principal rules is amended—

    • (a) by omitting the word custody in both places where it occurs, and substituting in each case the words day-to-day care ; and

    • (b) by omitting the word Custody:, and substituting the words Day-to-day care:.

    (5) Form FP 12 in Schedule 6 of the principal rules is amended—

    • (a) by omitting the word custody, and substituting the words day-to-day care ; and

    • (b) by omitting the word Custody:, and substituting the words Day-to-day care:.

    (6) Form FP 13 in Schedule 6 of the principal rules is amended—

    • (a) by omitting from paragraph 3 the word part, and substituting the word apart ; and

    • (b) by omitting the word custody in both places where it occurs, and substituting in each case the words day-to-day care ; and

    • (c) by omitting the word Custody:, and substituting the words Day-to-day care:.

    (7) Form FP 14 in Schedule 6 of the principal rules is amended—

    • (a) by omitting the word custody, and substituting the words day-to-day care ; and

    • (b) by omitting the word Custody:, and substituting the words Day-to-day care:.

    (8) Form FP 16 in Schedule 6 of the principal rules is amended by omitting from the title of the form the expression Guardianship Act 1968, and substituting the expression Care of Children Act 2004.

    (9) Form FP 17 in Schedule 6 of the principal rules is amended—

    • (a) by omitting from the title of the form the expression Guardianship Act 1968, and substituting the expression Care of Children Act 2004 ; and

    • (b) by omitting from the section headed Jurisdiction of Court the expression Guardianship Act 1968, and substituting the expression Care of Children Act 2004.

    (10) Form FP 29 in Schedule 6 of the principal rules is amended—

    • (a) by omitting the words Superintendent of [name of penal institution], and substituting the words Manager of [name of prison] ; and

    • (b) by omitting the words penal institution, and substituting the word prison ; and

    • (c) by omitting the word Superintendent,, and substituting the word Manager,.

    (11) Form FP 31 in Schedule 6 of the principal rules is amended by omitting the words Superintendent of [name of penal institution], and substituting the words Manager of [name of prison].

38 Schedule 9 amended
  • Forms PPPR 6 in Schedule 9 of the principal rules is amended by omitting from paragraph 7 the word repect, and substituting the word respect.


Schedule 1
New list of forms and its title substituted in Schedule 6 of principal rules

r 34

Schedule 2
New forms substituted in Schedule 6 of principal rules

r 35

Form FP 1
Request for counselling

r 334

.
.

Form FP 4
Report of counsellor

r 334

.
.

Form FP 32
Warrant to enforce role of providing day-to-day care for, or order for contact with, child

r 334

.
.

Form FP 33
Warrant to take child to prevent removal from New Zealand

r 334

.
.

Form FP 36
Parenting order(s)

r 334

.
.
.
.

Schedule 3
New forms substituted in Schedule 6 of principal rules

r 36

Form FP 15A
Application for declaration of paternity

r 334

.

Form FP 35A
Application for parenting order

r 334

.
.
.
.

Form FP 36A
Bond to ensure compliance with parenting order

r 334

.
.

Form FP 36B
Notice of intention to appear in relation to interim parenting order or other interim order

r 334

.

Form FP 49A
Warrant to prevent concealment of whereabouts of child

r 334

.
.

Form FP 49B
Warrant to enforce order for return of child

r 334

.
.

Diane Morcom,

Clerk of the Executive Council.

Explanatory note

This note is not part of the rules, but is intended to indicate their general effect.

These rules, which come into force on 1 July 2005, amend the Family Courts Rules 2002 ( the principal rules). Most of the amendments are to align the principal rules with the Care of Children Act 2004. Amendments for this purpose include—

  • replacing references to the Guardianship Act 1968 and its provisions with references to provisions of the Care of Children Act 2004:

  • replacing references to custody of a child with references to the role of providing day-to-day care for a child:

  • replacing references to access to a child with references to contact with a child:

  • providing new fauns where required by the Care of Children Act 2004, for example, new form FP 35A: Application for parenting order.

Other amendments make changes to terminology used in the principal rules in accordance with the Corrections Act 2004. In particular, references to penal institutions and their Superintendents are replaced with references to prisons and their managers.

There are also amendments correcting typographical errors, and to improve the format of some of the forms in the principal rules.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 21 April 2005.


  • 1 SR 2002/261