Family Courts Amendment Rules (No 2) 2009

2009/292

Crest

Family Courts Amendment Rules (No 2) 2009

Rt Hon Sir Peter Blanchard, Administrator of the Government

Order in Council

At Wellington this 28th day of September 2009

Present:
His Excellency the Administrator of the Government in Council

Pursuant to section 16A of the Family Courts Act 1980, His Excellency the Administrator of the Government, acting on the advice and with the consent of the Executive Council, makes the following rules.

Contents


Rules

1 Title
  • These rules are the Family Courts Amendment Rules (No 2) 2009.

2 Commencement
  • These rules come into force on 1 November 2009.

3 Principal rules amended
4 Interpretation
  • (1) Rule 8 is amended by inserting the following definitions in their appropriate alphabetical order:

    DCRs means rules of the District Courts Rules 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)

    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.

    (2) Paragraph (a) of the definition of Registrar's list in rule 8 is amended by omitting rule 32(1)(b)(ii) and substituting rule 32(1)(a).

    (3) The definition of without notice in rule 8 is amended by omitting 1992 and substituting 2009.

    (4) Rule 8 is amended by revoking the definition of working day and substituting the following definition:

    working day, in relation to a Court, means a day on which the Court office is not closed under DCR 1.19 or 1.21 (and DCR 1.17 applies accordingly).

5 Procedure if application on notice accepted for filing
  • (1) Rule 32 is amended by revoking subclauses (1) and (2) and substituting the following subclauses:

    • (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).

    (2) Rule 32 is amended by revoking subclause (4) and substituting the following subclause:

    • (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).

6 New rule 46 substituted
  • Rule 46 is revoked and the following rule substituted:

    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.

7 Getting more information or getting admissions
  • Rule 47(1)(a) is amended by omitting 1992 and substituting 2009.

8 Conferences
  • Rule 52 is amended by revoking subclause (2) and substituting the following subclauses:

    • (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.

9 New rule 113 substituted
  • Rule 113 is revoked and the following rule substituted:

    113 Personal service: District Courts Rules 2009 apply
    • The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a Court:

      • (a) 3.44.12, which applies HCR 6.12—personal service on New Zealand corporations:

      • (b) 3.44.13, which applies HCR 6.13—personal service in New Zealand on foreign corporations:

      • (c) 3.44.14, which applies HCR 6.14—personal service on unincorporated societies:

      • (d) 3.44.15, which applies HCR 6.15—personal service on partnership or apparent partnership:

      • (e) 3.44.16, which applies HCR 6.16—personal service on attorney or agent of absentee.

10 New rule 130 substituted
  • Rule 130 is revoked and the following rule substituted:

    130 Service on absentee: District Courts Rules 2009 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 (3).

      (2) The DCRs referred to in subclause (1) are—

      • (a) 3.44.21, which applies HCR 6.27—when (service out of New Zealand) allowed without leave:

      • (b) 3.44.22, which applies HCR 6.28—when (service out of New Zealand) allowed with leave:

      • (c) 3.44.25, which applies HCR 6.31—notice to defendant served outside New Zealand.

      (3) The Acts referred to in subclause (1) are—

      • (a) Adoption Act 1955:

      • (b) Births, Deaths, Marriages, and Relationships Registration Act 1995:

      • (c) Child Support Act 1991:

      • (d) Children, Young Persons, and Their Families Act 1989:

      • (e) Domestic Actions Act 1975:

      • (f) Domestic Violence Act 1995:

      • (g) Family Protection Act 1955:

      • (h) Law Reform (Testamentary Promises) Act 1949:

      • (i) Marriage Act 1955:

      • (j) Property (Relationships) Act 1976:

      • (k) Protection of Personal and Property Rights Act 1988.

      (4) DCR 3.44.28 (which applies HCR 6.34 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:

      • (a) Care of Children Act 2004:

      • (b) Family Proceedings Act 1980:

      • (c) those Acts listed in subclause (3)(a), (b), and (d) to (j).

11 New heading and rule 131 substituted
  • Rule 131 and the heading above rule 131 are revoked and the following heading and rule substituted:

    Use of Māori language, translations, and sign language

    131 Māori and other languages: District Court Rules 2009 apply
    • The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a Court:

      • (a) 3.5—speaking in Māori:

      • (b) 3.6—translation of documents into te reo Māori:

      • (c) 3.7—failure to give notice:

      • (d) 3.8—translation may be ordered by court:

      • (e) 3.10—sign language.

12 New rule 134 substituted
  • Rule 134 is revoked and the following rule substituted:

    134 Change of parties: District Courts Rules 2009 apply
    • (1) The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a Court:

      • (a) 3.35.1, which applies HCR 4.49—proceeding not to come to end:

      • (b) 3.35.2, which applies HCR 4.50—procedure on death, bankruptcy, and devolution:

      • (c) 3.35.3, which applies HCR 4.51—devolution when proceeding pending:

      • (d) 3.35.4, which applies HCR 4.52—new parties order:

      • (e) 3.35.5, which applies HCR 4.53—discharge or variation of new parties order:

      • (f) 3.35.6, which applies HCR 4.54—change of name.

      (2) DCR 3.35.1 applies subject to section 52 of the District Courts Act 1947.

13 New rule 137 substituted
  • Rule 137 is revoked and the following rule substituted:

    137 Interrogatories: District Courts Rules 2009 apply
    • The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a Court:

      • (a) 3.58.1, which applies HCR 8.1—interrogatories by notice:

      • (b) 3.58.2, which applies HCR 8.2—duties of party served:

      • (c) 3.58.3, which applies HCR 8.3—limitation of interrogatories by notice:

      • (d) 3.58.4, which applies HCR 8.4—multiple parties:

      • (e) 3.58.5, which applies HCR 8.5—order to answer:

      • (f) 3.58.6, which applies HCR 8.6—contents of statement:

      • (g) 3.58.7, which applies HCR 8.7—objection to answer:

      • (h) 3.58.8, which applies HCR 8.8—who may swear affidavit verifying statement in answer to interrogatories:

      • (i) 3.58.9, which applies HCR 8.9—insufficient answer:

      • (j) 3.58.10, which applies HCR 8.10—incorrect answer to be amended:

      • (k) 3.58.11, which applies HCR 8.11—answers as evidence:

      • (l) 3.58.12, which applies HCR 8.12—public interest.

14 Evidence by deposition: District Courts Rules 1992 apply
  • (1) The heading to rule 171 is amended by omitting 1992 and substituting 2009.

    (2) Rule 171 is amended by revoking subclauses (1) and (2) and substituting the following subclauses:

    • (1) The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a Court:

      • (a) 3.24—order for examination of witness:

      • (b) 3.25—examination of witnesses:

      • (c) 3.26—objection to question:

      • (d) 3.27—refusal to attend and be sworn:

      • (e) 3.28—costs:

      • (f) 3.29—failure to appear:

      • (g) 3.30—deposition as evidence.

    • (2) In applying DCRs 3.24 and 3.25 in accordance with subclause (1), the reference in DCR 3.24.4 to a witness summons under DCR 12.2 must be read as a reference to a witness summons under DCR 50.

    (3) Rule 171(3) is amended by omitting rule 378 of the District Courts Rules 1992 and substituting DCRs 3.24 and 3.25.

15 Taking evidence outside New Zealand: District Courts Rules 1992 apply
  • (1) The heading to rule 172 is amended by omitting 1992 and substituting 2009.

    (2) Rule 172 is amended by revoking subclause (1) and substituting the following subclause:

    • (1) The following DCRs apply, so far as applicable and with all necessary modifications:

      • (a) 3.70.11, which applies HCR 9.86—authority to take affidavits in places outside New Zealand:

      • (b) 3.70.12, which applies HCR 9.87—meaning of authenticated deposition:

      • (c) 3.70.13, which applies HCR 9.88—admissibility of authenticated desposition.

16 New heading inserted
  • The following heading is inserted above rule 173:

    Evidence in trans-Tasman proceedings.

17 New rules 173 to 173E substituted
  • Rule 173 is revoked and the following rules are substituted:

    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.

    173A Leave to serve New Zealand subpoena on witness in Australia
    • Leave to issue a subpoena for service on a witness in Australia must be obtained from the High Court (section 154 of the Evidence Act 2006 and HCR 9.60).

    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.

    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).

    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).

    173E Evidence and submissions by video link and telephone conference: District Courts Rules 2009 apply
    • DCR 12.4.5 (which applies HCR 9.67 relating to evidence and submissions by video link and telephone conference) applies, so far as applicable with all necessary modifications, to proceedings in a Court.

18 New rules 174 to 175E substituted
  • Rules 174 and 175 are revoked and the following rules substituted:

    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.

    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.

    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 one or more of the parties to do so.

    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.

    175C Judicial conference: adjournment
    • The Judge presiding over a judicial conference may adjourn the judicial conference at any time and to any place.

    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) fix a time and place for the hearing of the proceedings:

      • (m) determine which witnesses may give oral evidence in support:

      • (n) if the proceedings relate to or include an application under the Property (Relationships) Act 1976,—

        • (i) appoint a person under section 38(1) of that Act to make an inquiry into the matters of fact in issue between the parties, and to report on them to the Court; or

        • (ii) make an order or issue a warrant or summons authorised by any of rules 397 to 402:

      • (o) give any consequential directions the Judge considers necessary.

    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.

19 Settlement conference
  • Rule 178 is amended by revoking subclauses (1) and (2) and substituting the following subclauses:

    • (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.

20 New rules 207 to 207B substituted
  • Rule 207 is revoked and the following rules are substituted:

    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) 4.2—principles applying to determination of costs:

      • (b) 4.3—categorisation of proceedings:

      • (c) 4.4—appropriate daily recovery rates:

      • (d) 4.5—determination of reasonable time:

      • (e) 4.6—increased costs and indemnity costs:

      • (f) 4.7—refusal of, or reduction in, costs:

      • (g) 4.8—costs in interlocutory applications:

      • (h) 4.9—costs may be determined by different Judge:

      • (i) 4.10—written offers without prejudice except as to costs:

      • (j) 4.11—effect on costs:

      • (k) 4.12—disbursements.

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

    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.

    207B Security for costs: District Courts Rules 2009 apply
    • The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a Court:

      • (a) 4.20—power to make order for security for costs:

      • (b) 4.21—how security to be given:

      • (c) 4.22—solicitor not to be surety:

      • (d) 4.23—surety becoming bankrupt or insolvent.

21 Heading above rule 208 amended
22 New rules 208 to 208B and headings substituted
  • Rule 208 is revoked and the following rules and headings are substituted:

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

      • (a) 3.32.1, which applies HCR 3.17—application for order:

      • (b) 3.32.2, which applies HCR 3.18—powers of court in relation to application:

      • (c) 3.32.3, which applies HCR 3.19—disposal of securities and income:

      • (d) 3.32.4—no liability on the Crown.

    Inspection and testing

    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) 3.66.1, which applies HCR 9.34—order for inspection, etc:

      • (b) 3.66.2, which applies HCR 9.35—notice of application.

    Interim preservation, etc, of property

    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) 3.54.1, which applies HCR 7.55—preservation of property:

      • (b) 3.54.2, which applies HCR 7.56—sale of perishable property before hearing:

      • (c) 3.54.3, which applies HCR 7.57—order to transfer part of property to person with interest in property:

      • (d) 3.54.4, which applies HCR 7.58—interim payment of income to person with interest in income.

23 New rule 214 substituted
  • Rule 214 is revoked and the following rule substituted:

    214 Contempt of court: District Courts Rules 2009 apply
    • DCR 16.6 and forms 105 and 106 of the District Courts Rules 2009 (which relate to contempt) apply, so far as applicable and with all necessary modifications, to a proceeding in a Court.

24 Order of priority of distress warrants
  • Rule 270(4) is amended by omitting 1992 and substituting 2009 or the District Courts Rules 1992.

25 Judicial conference: nature and purpose
26 New rules 295A and 295B inserted
  • The following rules are inserted after rule 295:

    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.

    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.

27 Evidence at hearing of certain proceedings generally to be given orally
  • (1) Rule 299(3)(b) is amended by omitting 1992 and substituting 2009.

    (2) Rule 299(3)(c) is amended by omitting 1992 and substituting 2009.

28 New rule 324 substituted
  • Rule 324 is revoked and the following rule substituted:

    324 Enforcement of occupation orders and tenancy orders: District Courts Rules 2009 apply
    • The following DCRs apply, so far as applicable and with all necessary modifications, to proceedings in a Court:

      • (a) 15.68—issue of warrant:

      • (b) 15.69—form of warrant.

29 New rule 325 substituted
  • Rule 325 is revoked and the following rule substituted:

    325 Enforcement of ancillary furniture orders and furniture orders: District Courts Rules 2009 apply
    • DCR 15.64 (which relates to warrant for recovery of chattels) applies, so far as applicable and with all necessary modifications, to a proceeding in a Court.

30 Restriction on service of application for separation order
  • Rule 342(1) is amended by omitting served and substituting issued for service.

31 Order of priority of distress warrants
  • Rule 374(4) is amended by omitting 1992 and substituting 2009 or the District Courts Rules 1992.

32 Court offices and hours
  • (1) Rule 418 is amended by revoking subclause (2) and substituting the following subclause:

    • (2) The office is the office for the District Court of which the Court is a division.

    (2) Rule 418 is amended by revoking subclause (4) and substituting the following subclause:

    • (4) The Registrar must keep the Court office open during the office hours stated in, or fixed under, DCR 1.22, and DCR 1.22.4 applies accordingly.

33 Sittings when Court office closed
  • Rule 419(5) is amended by omitting rules 17 and 19 of the District Courts Rules 1992 and substituting DCRs 1.19 and 1.21.

34 Schedule 1 amended
  • Schedule 1 is amended by adding the forms set out in the Schedule of these rules.


Schedule 
New forms G 22 to G 28 added to Schedule 1

r 34

Form G 22
Appearance under protest to jurisdiction

r 46(1)

(Front page—Form G 1)

  • 1 The respondent, [name], appears under protest to object to the jurisdiction of the Court to hear and determine this proceeding.

  • 2 The respondent's objection is based on the following grounds: [specify grounds]:

Date:

Signature:

(respondent/lawyer for respondent*)

*Select one.

[Complete and attach memorandum in form G 4]

Form G 23
Appearance for ancillary purpose

r 46(2)

(Front page—Form G 1)

The respondent, [name], does not oppose the application but appears in order to be heard on the following matters: [specify matters].

Date:

Signature:

(respondent/lawyer for respondent*)

*Select one.

[Complete and attach memorandum in form G 4]

Form G 24
Appearance reserving rights

r 46(3)

(Front page—Form G 1)

The respondent, [name], does not oppose the application but appears in order to reserve the respondent's rights in the event that another person becomes a party to this proceeding, or that a party takes a step in the proceeding that is against the respondent's interests.

Date:

Signature:

(respondent/lawyer for respondent*)

*Select one.

[Complete and attach memorandum in form G 4]

Form G 25
Subpoena to give evidence for service in Australia

r 173B(1)

(Front page—Form G 2)

To [name, place of residence, occupation]

  • 1 You are ordered to attend the Family Court at [place, date, time] and, on each subsequent day until you are discharged from attendance, to give evidence on behalf of the [party] in this proceeding.

  • 2 Omit this paragraph if it does not apply.

    You are ordered to bring with you and produce at the same time and place [details of documents to be produced].

  • 3 This order of subpoena is issued by [full name], the party/lawyer for the party*, with the leave of the Honourable Justice [name].

    *Select one.

Date:

Signature:

Full name of Registrar/Deputy Registrar*:

Postal address of registry:

Telephone:

Fax:

*Select one.

Sealed: [date]


Form G 26
Subpoena for production only for service in Australia

r 173B(2)

(Front page—Form G 2)

To [name, place of residence, occupation]

  • 1 You are ordered to produce this subpoena and the documents or things set out in the list below at the Family Court at [place, date, time].

  • 2 You will comply with this subpoena if you produce the documents and things at a registry of an Australian court that is authorised by the law of the Commonwealth of Australia to receive those documents and things, no later than 7 working days before that date.

  • 3 This order of subpoena is issued by [full name], the party/lawyer for the party*, with the leave of the Honourable Justice [name].

    *Select one.
List of documents and things

[List documents and things.]

Date:

Signature:

Full name of Registrar/Deputy Registrar*:

Postal address of registry:

Telephone:

Fax:

*Select one.

Sealed: [date]


Form G 27
Statement of rights and obligations of person served in Australia with subpoena under Evidence Act 2006

r 173C

(Front page—Form G 2)

Important: This statement is important. Please read the statement and the attached document carefully. If you are in any doubt about this statement or the attached documents, you should get legal advice immediately.

Attached to this statement is a subpoena issued by the Family Court at [place] in New Zealand. A subpoena is a summons to a witness to give evidence or produce documents. The subpoena attached to this statement requires you to [specify whether witness is required to attend the Family Court or some other place to give evidence, give evidence and produce documents and things, or only produce documents].

The subpoena may be served in Australia under section 156 of the Evidence Act 2006 of New Zealand.

This statement sets out your rights and obligations relating to the subpoena.

Your rights
  • 1 At the time you are served with this subpoena, or at some other reasonable time before the hearing, you are entitled to be paid allowances and travelling expenses, or given vouchers in respect of those allowances and expenses, that cover your reasonable expenses in complying with this subpoena.

  • 2 You are not required to comply with this subpoena unless those allowances and travelling expenses or vouchers are tendered to you.

  • 3 You are also entitled to be paid for your reasonable expenses in complying with the subpoena in addition to any payment or vouchers tendered to you. You may apply to the Family Court at [place] in New Zealand for an order specifying that amount.

  • 4 You may apply to the High Court of New Zealand to have the subpoena set aside. If you want to have the subpoena set aside, you should get legal advice as soon as possible.

  • 5 An application to set the subpoena aside can be made and determined without having to go to New Zealand. You are entitled to have Australian solicitors act for you.

  • 6 The High Court of New Zealand may determine the application without a hearing if neither you nor the party who requested the issue of the subpoena requires a hearing. The court may hold a hearing by video link or telephone conference if the court thinks fit. If a party applies to the court for a direction to hear the application by video link or telephone conference, the court is required to hear it by video link or telephone conference.

Note: See setting subpoena aside for details of the grounds on which a subpoena may be set aside and the procedure that must be followed.

Your obligations
  • 7 If the subpoena is not set aside, you must comply with it if—

    • (a) when you were served with the subpoena, or at some reasonable time before the time specified for you to comply, you have been paid or tendered allowances and travelling expenses, or offered vouchers in respect of those allowances and expenses, that are sufficient to cover reasonable expenses incurred in complying with this subpoena; and

    • (b) a copy of the order of the Judge of the High Court of New Zealand granting leave to serve the subpoena was served on you with the subpoena; and

    • (c) you were served with the subpoena not later than the date specified by the Judge of the High Court who granted leave to serve the subpoena; and

    • (d) any other conditions relating to the service of the subpoena have been complied with; and

    • (e) you are 18 years of age or older.

  • 8 If the subpoena only requires you to produce documents and things, you may comply with the subpoena by producing the documents or things at any registry of an Australian court that is authorised by the law of the Commonwealth of Australia to receive them, not later than 7 working days before the date specified in the subpoena for producing them in the Family Court at [place] in New Zealand. If you produce the documents or things at a registry of an Australian court, you will be required to produce the subpoena and to pay the cost of sending the documents or things to the Family Court. You are entitled to have the costs of producing the documents and things, and of sending them to the Family Court, paid or tendered to you before you are required to comply with the subpoena.

Failure to comply with subpoena
  • 9 Failure to comply with the subpoena constitutes contempt of the Federal Court of Australia and is punishable unless you establish that the failure to comply should be excused.

Setting subpoena aside
  • 10 You may apply to the High Court of New Zealand to have this subpoena set aside under section 160 of the Evidence Act 2006 of New Zealand. Section 160 provides that the High Court must set the subpoena aside if—

    • (a) the subpoena requires the witness to attend at a sitting of a court and the High Court is satisfied that—

      • (i) the witness does not have, and cannot by the exercise of reasonable diligence within the time required for compliance obtain, the necessary travel documents; or

      • (ii) the witness is liable to be detained in New Zealand for the purpose of serving a sentence; or

      • (iii) the witness is liable to prosecution for an offence, or is being prosecuted for an offence, in New Zealand; or

      • (iv) the witness is liable to the imposition of a civil penalty in civil proceedings in New Zealand, not being proceedings for a pecuniary penalty under the Commerce Act 1986; or

    • (b) the witness is subject to a restriction on his or her movements, imposed by law or by order of a court, that would prevent the witness complying with the subpoena.

  • 11 Section 160 further provides that the High Court may set a subpoena aside if it is satisfied that—

    • (a) the evidence of the witness could be obtained satisfactorily without significantly greater expense by other means; or

    • (b) compliance with the subpoena would cause hardship or serious inconvenience to the witness; or

    • (c) in the case of a subpoena that requires a witness to produce documents or things, whether or not it also requires the witness to give oral evidence,—

      • (i) the documents or things should not be taken out of Australia; and

      • (ii) satisfactory evidence of the contents of the documents or evidence of the things can be given by other means.

  • 12 An application to set the subpoena aside must be filed in the registry of the High Court of New Zealand in which leave to serve the subpoena was given, together with any affidavit setting out the facts on which you rely.

  • 13 The application and the affidavit may be sent by fax. The fax number of the registry of the court is [fax number].

  • 14 The application must contain an address for service in New Zealand or Australia and may also state a fax number in New Zealand or Australia to which documents relating to the application may be sent.

  • 15 The Registrar of the High Court of New Zealand will arrange for service of the application and any affidavit.

  • 16 The High Court of New Zealand can decide the application without a hearing if neither you nor the party who requested the issue of the subpoena states that a hearing is required. If there is to be a hearing, the hearing may, if the court thinks fit, be by video link or telephone conference. You may, however, either in your application to set the subpoena aside or within a reasonable time after filing the application, request that the court direct that the hearing be by video link or telephone conference. If you make such a request, the court will direct that the hearing be by video link or telephone conference.

Form G 28
Certificate of non-compliance with subpoena for service in Australia

r 173D

(Front page—Form G 2)

To the Federal Court of Australia at [place]

The Family Court at [place] in New Zealand certifies that on [date] the Honourable Justice [name] gave leave to serve a subpoena, being a subpoena to which Part 4 of the Evidence Act 2006 of New Zealand applies, on [name of person subpoenaed], and that [name of person subpoenaed] has failed to comply with the subpoena in that [particulars of failure to comply].

Date:

Signature:

(Registrar/Deputy Registrar*)

*Select one.

Michael Webster,
for 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 November 2009, amend the Family Courts Rules 2002 (the principal rules).

The amendments—

  • amend rule 32 of the principal rules to provide that, when an application on notice is accepted for filing, the Registrar must either—

    • immediately assign the application a Registrar's list date and then promptly inform the parties of that date; or

    • immediately fix a date and time for the hearing of the application and then promptly inform the parties of that date and time:

  • substitute a new rule 32(4) of the principal rules, which deals specifically with the exemption in relation to the service of an application for a separation order:

  • provide that a Registrar may convene a judicial conference on his or her own initiative if he or she considers it in the interests of one or more of the parties to do so:

  • provide that the Judge presiding at a judicial conference may proceed to hear the application if the respondent does not attend the judicial conference and has not at any time before the judicial conference filed a notice of defence or notice of intention to appear:


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

Date of notification in Gazette: 1 October 2009.

These rules are administered by the Ministry of Justice.