Family Court Amendment Rules 2017

2017/189

Coat of Arms of New Zealand

Family Court Amendment Rules 2017

Patsy Reddy, Governor-General

Order in Council

At Wellington this 7th day of August 2017

Present:
Her Excellency the Governor-General in Council

These rules are made under section 16A of the Family Court Act 1980 on the advice and with the consent of the Executive Council.

Contents

1Title
2Commencement
3Principal rules
4Rule 82 amended (Memorandum to be on front page with first document filed)
5Rule 87 amended (Change of representation)
6Rule 100 replaced (Notices to be given by Registrar)
100Notices to be given by Registrar
7Rule 102 amended (How documents to be served)
8Rule 106 amended (Who may carry out personal service)
9Rule 114 amended (Service on lawyer on behalf of person)
10Rule 116 amended (Address for service on party or other person)
11Rule 118 replaced (Methods of service if address for service is lawyer’s office)
118Methods of service if address for service is lawyer’s office
12Rule 119 amended (When and how documents under rule 118 to be treated as served)
13Rule 120 amended (Lawyer must acknowledge document faxed or emailed)
14Rule 121A amended (When and how documents under rule 102(2)(ca) to be treated as served)
15Rule 126 amended (Order dispensing with or changing service required)
16Rule 127 amended (Proof of personal service)
17Rule 128 amended (Proof of substituted service effected by advertisement)
18Rule 129 amended (Attaching copy of document to affidavit of service or certificate of service)
19Rule 197 amended (Time and mode of giving judgment)
20Rule 206 amended (Service of judgments)
21New rule 206A and cross-heading inserted
Authentication
206AAuthentication of electronic documents transmitted by Judges
22Rule 283 amended (Service on social worker or constable)
23Rule 416B amended (Interpretation)
24Rule 416C amended (Overview of proceedings)
25Rule 416D amended (Flowcharts of proceedings)
26Rule 416I amended (What happens with applications filed on notice)
27Rule 416J amended (What happens with applications filed without notice)
28Rule 416S amended (Standard track)
29Rule 416T amended (Complex case on standard track)
30Rule 416U amended (Without notice track)
31Schedule 1, forms G 4 and G 9 replaced
32Schedule 1, form G 11 amended
Schedule
Schedule 1, forms G 4 and G 9 replaced
Explanatory note
Administrative Information

Rules

1 Title

These rules are the Family Court Amendment Rules 2017.

2 Commencement

These rules come into force on 1 September 2017.

3 Principal rules

These rules amend the Family Court Rules 2002 (the principal rules).

4 Rule 82 amended (Memorandum to be on front page with first document filed)

(1)

In rule 82(1)(d), delete “; and”.

(2)

Revoke rule 82(1)(e).

(3)

After rule 82(1), insert:

(1A)

If a party’s lawyer will, on behalf of the party, accept service of documents in the course of proceedings, the address for service required by subclause (1)(d) must be the post office box address, document exchange box number, or electronic address by which the lawyer will accept service.

5 Rule 87 amended (Change of representation)

In rule 87(3)(b), replace “rule 82(1)(b) to (e)” with “rule 82(1)(b) to (d) and (1A)”.

6 Rule 100 replaced (Notices to be given by Registrar)

Replace rule 100 with:

100 Notices to be given by Registrar

Unless an Act or these rules provide otherwise, a Registrar who is required to give a person (whether or not a party) a notice may give the notice—

(a)

by sending it to the person’s address for service; or

(b)

by sending it to the person’s last known or usual residential or business address in New Zealand, if the person does not have, or has not given, an address for service; or

(c)

in any other manner the court directs.

7 Rule 102 amended (How documents to be served)

In rule 102(2)(ca), replace “posting” with “sending”.

8 Rule 106 amended (Who may carry out personal service)

(1)

Replace rule 106(1)(a) with:

(a)

a Registrar, a bailiff, or any other employee appointed under the State Sector Act 1988 for the conduct of the business of the court:

(aa)

an individual who is authorised by the Secretary for Justice to serve documents under a family law Act:

(ab)

an officer or employee of a corporation that is authorised by the Secretary for Justice to serve documents under a family law Act:

(2)

Replace rule 106(1)(b) with:

(b)

a constable:

(ba)

a Police employee authorised by the Commissioner of Police to serve documents under a family law Act:

9 Rule 114 amended (Service on lawyer on behalf of person)

Replace rule 114(2)(b) with:

(b)

signs and dates the note.

10 Rule 116 amended (Address for service on party or other person)

Replace rule 116(1)(d) with:

(d)

the address by which the party’s lawyer will accept service that is given under rule 82(1A); or

11 Rule 118 replaced (Methods of service if address for service is lawyer’s office)

Replace rule 118 with:

118 Methods of service if address for service is lawyer’s office

If a party’s lawyer has, under rule 82(1A), given a post office box address, a document exchange box number, or an electronic address by which the lawyer will accept service on behalf of the party, 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 electronic address.

12 Rule 119 amended (When and how documents under rule 118 to be treated as served)

(1)

In rule 119(3) and (4), delete “or (d)”.

(2)

Replace rule 119(3A) with:

(3A)

Despite subclause (3), when a document is, under rule 118(c) transmitted to the electronic address of a lawyer 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 working day after the day on which it was received.

13 Rule 120 amended (Lawyer must acknowledge document faxed or emailed)

(1)

In the heading to rule 120, replace “faxed or emailed” with “transmitted electronically”.

(2)

In rule 120(1), delete “or (d)”.

(3)

In rule 120(2)(b), replace “by fax or email” with “electronically”.

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

Replace rule 121A(6) with:

(6)

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

15 Rule 126 amended (Order dispensing with or changing service required)

Replace rule 126(2) with:

(2)

In response to the application, the Judge may, if satisfied of the matters specified in subclause (1)(a) to (c),—

(a)

make an order dispensing altogether with the service required; or

(b)

make an order for substituted service in form G 9 that changes, in any way, the service required (for example, an order permitting the document to be brought to the notice of the person to be served using social media, or by advertisement in form G 10, or by some other means).

16 Rule 127 amended (Proof of personal service)

In rule 127(4), after “constable,”, insert “Police employee,”.

17 Rule 128 amended (Proof of substituted service effected by advertisement)

(1)

In the heading to rule 128, delete “effected by advertisement”.

(2)

In rule 128, insert as subclause (2):

(2)

The service of a document by substituted service in any other way may be proved—

(a)

on oath before the court; or

(b)

by affidavit; or

(c)

by any other means satisfactory to the Registrar.

18 Rule 129 amended (Attaching copy of document to affidavit of service or certificate of service)

In rule 129(3), replace “subclause (1)” with “subclauses (1) and (1A)”.

19 Rule 197 amended (Time and mode of giving judgment)

Revoke rule 197(4A).

20 Rule 206 amended (Service of judgments)

(1)

Replace rule 206(2)(b) with:

(b)

if a party does not have a lawyer acting for him or her, service may be effected by—

(i)

sending a copy of the judgment to the party’s address for service; or

(ii)

transmitting the judgment to the party’s last known electronic address.

(2)

Replace rule 206(3) with:

(3)

If service cannot be effected under subclause (2)(b) because no address for service or electronic address has been given by the party, and the party resides in New Zealand, service may be effected by sending a copy of the judgment by a letter that is—

(a)

addressed to that party at that party’s last known or usual place of residence or business in New Zealand; and

(b)

delivered to that address by a postal or courier service that records details of delivery to the address.

(3A)

If service cannot be effected under subclause (2)(b) because no address for service or electronic address has been given by the party, and the party resides overseas, service may be effected by sending a copy of the judgment by a letter that is—

(a)

addressed to the party at that party’s last known or usual place of residence or business overseas; and

(b)

sent to that address by airmail.

(3)

Replace rule 206(4)(b) with:

(b)

if a party does not have a lawyer acting for him or her, service may be effected by sending a copy of the judgment to the party’s—

(i)

address for service; or

(ii)

last known or usual place of residence or business; or

(iii)

last known electronic address; or

21 New rule 206A and cross-heading inserted

After rule 206, insert:

Authentication

206A Authentication of electronic documents transmitted by Judges

A document (including an order or direction) that is to be transmitted electronically by a Judge may be authenticated by the Judge by any means that adequately identifies—

(a)

the Judge; and

(b)

the date of the authentication.

22 Rule 283 amended (Service on social worker or constable)

(1)

In the heading to rule 283, delete “social worker or”.

(2)

Revoke rule 283(1).

23 Rule 416B amended (Interpretation)

In rule 416B, definition of complex case, replace “rule 416T” with “rule 416UA”.

24 Rule 416C amended (Overview of proceedings)

Replace rule 416C(5) with:

(5)

The kinds of conference available are—

(a)

on the standard track,—

(i)

an issues conference:

(ii)

a settlement conference:

(iii)

a directions conference:

(iv)

a pre-hearing conference:

(v)

a case management conference:

(b)

on the without notice track,—

(i)

a directions conference:

(ii)

a case management conference:

(c)

on the simple track, an issues conference.

25 Rule 416D amended (Flowcharts of proceedings)

(1)

In rule 416D(1), replace the flowchart headed “Track Assignment” with:

Track Assignment

(2)

In rule 416D(1), replace the flowchart headed “Without Notice Track r 416U” with:

Without Notice Track r 416U
26 Rule 416I amended (What happens with applications filed on notice)

(1)

In rule 416I(1), replace “in paragraph (c)” with “in paragraph (d)”.

(2)

In rule 416I(1)(d), replace “form COC 2” with “form COC 1 or, if the respondent resides outside New Zealand, in form COC 2”.

27 Rule 416J amended (What happens with applications filed without notice)

(1)

Replace rule 416J(2)(a) with:

(a)

make an interim order, in which case he or she must—

(i)

direct that the application proceed to a hearing in accordance with rule 416U; or

(ii)

direct that the proceedings proceed as if the application was made on notice and be dealt with on the standard track (whether or not the Judge also makes a direction under section 46F of the Act that the parties to the proceedings attend FDR); or

(iii)

direct, under section 46F of the Act, that the parties to the proceedings attend FDR:

(2)

Replace rule 416J(2)(c)(ii) with:

(ii)

direct that the application be dealt with as if it had been made on notice and that the proceedings be dealt with on the standard track (whether or not the Judge also makes a direction under section 46F of the Act that the parties to the proceedings attend FDR); or

(iii)

direct, under section 46F of the Act, that the parties to the proceedings attend FDR.

28 Rule 416S amended (Standard track)

In rule 416S(3), replace “orders and directions” with “directions and interim orders”.

29 Rule 416T amended (Complex case on standard track)

(1)

In the heading to rule 416T, after “standard track”, insert “or without notice track”.

(2)

In rule 416T(1), after “standard track”, insert “or without notice track”.

(3)

Renumber rule 416T as rule 416UA and reposition it in its appropriate numerical order.

30 Rule 416U amended (Without notice track)

Replace rule 416U(5) with:

(5)

The only conferences that can be held for proceedings on the without notice track are a directions conference and a case management conference.

31 Schedule 1, forms G 4 and G 9 replaced

In Schedule 1, replace forms G 4 and G 9 with the forms set out in the Schedule of these rules.

32 Schedule 1, form G 11 amended

In Schedule 1, form G 11 heading, replace “128” with “128(1)”.

Schedule Schedule 1, forms G 4 and G 9 replaced

r 31

Form G 4 Memorandum on first document filed by party

r 82(1)

Select the statement that applies.

This document is filed by the applicant/respondent* in person. The address for service of the applicant/respondent* is [address].

*Select one.

or

This document is filed by [name], lawyer for the applicant/respondent* of the firm of [name].

The address for service of the applicant/respondent* is [address].

*Select one.

or

This document is filed by [name], lawyer for the applicant/respondent* of the firm of [name], whose postal address is [address].

The lawyer’s agent in the proceeding is [name, address].

The address for service of the applicant/respondent* is [address].

*Select one.

Form G 9 Order for substituted service

r 126(2)

(General heading—Form G 2)

On application made to it, the court orders that—

(a)

service on the respondent of the application for [specify each application or declaration applied for] by a method permitted or required under these rules be dispensed with; and

(b)

service on the respondent instead be effected by [specify the way in which service is to be effected, for example, by social media or advertisement]; and

(c)

the time within which the respondent may file a notice of defence to the application or a request for an appearance is fixed at [number] days from [specify, for example, the date of publication of the advertisement].

Registrar

Date

Michael Webster,
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 September 2017, amend the Family Court Rules 2002 to—

  • enable lawyers to accept service of documents by any electronic means:

  • enable the following persons to undertake personal service:

    • an individual who is authorised by the Secretary for Justice:

    • an officer or employee of a corporation that is authorised by the Secretary for Justice:

    • a Police employee authorised by the Commissioner of Police:

  • insert a new provision enabling Judges to authenticate electronic documents:

  • add, as an example of an order for substituted service of a document, an order permitting the document to be brought to the notice of the person to be served using social media:

  • reflect the change made by the Children, Young Persons, and Their Families (Advocacy, Workforce, and Age Settings) Amendment Act 2016 that a social worker is no longer able to be a party to proceedings under the Oranga Tamariki Act 1989 in his or her capacity as a social worker:

  • provide that service of an order on a party who does not have a lawyer acting for him or her may be effected by transmitting the order to the party’s last known electronic address:

  • enable a proceeding on the without notice track to be classified as a complex case so that it may be individually managed and a case management conference may be convened:

  • clarify that following the making of an interim order on the without notice track, a Judge may transfer a case to the standard track:

  • expressly provide that on the without notice track a Judge may direct the parties to attend family dispute resolution:

  • correct some technical errors in rule 416I(1).

Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 10 August 2017.

These rules are administered by the Ministry of Justice.