Care of Children Act 2004

1: Title
This Act is the Care of Children Act 2004.
2: Commencement
This Act comes into force on 1 July 2005.
1: Preliminary provisions
3: Purpose of this Act
1: The purpose of this Act is to—
a: promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and
b: recognise certain rights of children.
2: To that end, this Act—
a: defines and regulates—
i: parents’ duties, powers, rights, and responsibilities as guardians of their children:
ii: parents’ powers to appoint guardians:
iii: courts’ powers in relation to the guardianship and care of children:
b: acknowledges the role that other family members may have in the care of children:
c: respects children’s views and, in certain cases, recognises their consents (or refusals to consent) to medical procedures:
d: encourages agreed arrangements for, and provides for the resolution of disputes about, the care of children:
e: makes provision for enforcing orders internationally:
f: implements in New Zealand law the Hague Convention on the Civil Aspects of International Child Abduction:
g: reforms and replaces the Guardianship Act 1968 Guardianship Amendment Act 1991
4: Child's welfare and best interests to be paramount
1: The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—
a: in the administration and application of this Act, for example, in proceedings under this Act; and
b: in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
2: Any person considering the welfare and best interests of a child in his or her particular circumstances—
a: must take into account—
i: the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child's sense of time; and
ii: the principles in section 5
b: may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child's welfare and best interests.
3: It must not be presumed that the welfare and best interests of a child (of any age) require the child to be placed in the day-to-day care of a particular person because of that person's gender.
4: This section does not—
a: limit section 6 83 subpart 4
b: prevent any person from taking into account other matters relevant to the child's welfare and best interests. Section 4 replaced 31 March 2014 section 4 Care of Children Amendment Act (No 2) 2013
5: Principles relating to child's welfare and best interests
The principles relating to a child's welfare and best interests are that—
a: a child's safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2) 10 11
b: a child's care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:
c: a child's care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:
d: a child should have continuity in his or her care, development, and upbringing:
e: a child should continue to have a relationship with both of his or her parents, and that a child's relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
f: a child's identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened. Section 5 replaced 31 March 2014 section 4 Care of Children Amendment Act (No 2) 2013 Section 5(a) amended 1 July 2019 section 14 Family Violence (Amendments) Act 2018
5A: Family violence to be taken into account
1: This section applies if—
a: an application is made to the court for—
i: a guardianship order under section 19 27
ii: a direction under section 46R
iii: a parenting order under section 48
iv: a variation of a parenting order, under section 56
b: 1 or both of the following kinds of orders made under section 79
i: a temporary protection order:
ii: a final protection order.
2: In taking into account the principle in section 5(a)
a: whether a temporary protection order, or final protection order, is still in force:
b: the circumstances in which that order was made:
c: any written reasons, given by the Judge who made that order, for that Judge’s decision to make that order.
3: In taking into account the principle in section 5(a)
a: all relevant convictions (if any), of 1 or more parties to the application, for an offence against section 112
b: all relevant safety concerns (if any) that an assessor or a service provider has notified or advised under section 185 204
4: In this section, family violence offence
a: against any enactment (including the Family Violence Act 2018
b: involving family violence (as defined in section 9 Section 5A replaced 1 July 2019 section 15 Family Violence (Amendments) Act 2018
6: Child’s views
1: This subsection applies to proceedings involving—
a: the guardianship of, or the role of providing day-to-day care for, or contact with, a child; or
b: the administration of property belonging to, or held in trust for, a child; or
c: the application of the income of property of that kind.
2: In proceedings to which subsection (1) applies,—
a: a child must be given reasonable opportunities to express views on matters affecting the child; and
b: any views the child expresses (either directly or through a representative) must be taken into account. 1968 No 63 s 23(1), (2)
7: Appointment of lawyer to represent child in proceedings
A court may appoint, or direct the Registrar of the court to appoint, a lawyer to represent a child who is the subject of, or who is a party to, proceedings (other than criminal proceedings) under this Act if the court—
a: has concerns for the safety or well-being of the child; and
b: considers an appointment necessary. Section 7 replaced 31 March 2014 section 5 Care of Children Amendment Act (No 2) 2013
7A: Lawyers acting for parties
Section 7A repealed 1 July 2020 section 4 Family Court (Supporting Families in Court) Legislation Act 2020
7B: Duties of lawyer when giving advice
A lawyer providing legal advice to a person about arrangements for the guardianship or care of a child, or both, must ensure that the person is aware of—
a: the need for the child's welfare and best interests to be the first and paramount consideration when settling arrangements; and
b: the mechanisms for assisting resolution of family disputes; and
c: the steps for commencing a proceeding under this Act and subsequently pursuing the proceeding through the court process to obtain a resolution; and
d: the types of directions and orders that the court may make if a proceeding is commenced. Section 7B inserted 31 March 2014 section 5 Care of Children Amendment Act (No 2) 2013
8: Interpretation
In this Act, unless the context otherwise requires,— approved counselling organisation section 46H certified copy chief executive child contact counselling services section 46G(2) counsellor section 46K country court section 125 day-to-day care department Oranga Tamariki Act 1989 faxed copy guardian guardianship section 15 High Court lawyer section 6 litigation guardian
a: has the same meaning as the expression guardian ad litem
b: in section 31(2)﻿(e) overseas parenting order
a: means an order made by a court in a prescribed overseas country, being—
i: an order relating to the role of providing day-to-day care for, or contact with, a child; or
ii: an order that varies or discharges or is made in substitution for an order in subparagraph (i); but
b: does not include—
i: an interim order or an order made without notice; or
ii: an order made by a court in a prescribed overseas country and that varies or discharges or is made in substitution for an order, made in New Zealand, that is registered or is otherwise enforceable in the prescribed overseas country parenting information programme parenting order section 48(1) prescribed overseas country
a: Australia; or
b: any State or Territory of Australia; or
c: any other country outside New Zealand that is declared by Order in Council to be a prescribed overseas country for the purposes of this Act; and, for the purposes of this paragraph, the Cook Islands, Niue, and Tokelau must each be treated as a country outside New Zealand Registrar-General section 4 role of providing day-to-day care for a child
a: means the role, under this Act, an order under this Act, or an order made by a court in a prescribed overseas country, of providing day-to-day care for the child; and
b: includes, while exercising that role, exclusive responsibility for the child’s day-to-day living arrangements Secretary social worker spouse or partner of a parent
a: who is or has been married to, or in a civil union or de facto relationship with, a parent of the child; and
b: who shares responsibility for the child’s day-to-day care with the parent. 1968 No 63 s 2 Section 8 approved counselling organisation inserted 31 March 2014 section 6(1) Care of Children Amendment Act (No 2) 2013 Section 8 counselling services inserted 31 March 2014 section 6(1) Care of Children Amendment Act (No 2) 2013 Section 8 counsellor inserted 31 March 2014 section 6(1) Care of Children Amendment Act (No 2) 2013 Section 8 de facto partner repealed 1 July 2005 section 3 Care of Children Amendment Act 2005 Section 8 de facto relationship repealed 1 July 2005 section 3 Care of Children Amendment Act 2005 Section 8 department amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 8 lawyer replaced 1 August 2008 section 348 Lawyers and Conveyancers Act 2006 Section 8 parenting information programme inserted 31 March 2014 section 6(1) Care of Children Amendment Act (No 2) 2013 Section 8 partner of a parent repealed 1 July 2005 section 3 Care of Children Amendment Act 2005 Section 8 prescribed repealed 31 March 2014 section 6(2) Care of Children Amendment Act (No 2) 2013 Section 8 Registrar-General amended 15 June 2023 section 147 Births, Deaths, Marriages, and Relationships Registration Act 2021 Section 8 social worker amended 7 August 2020 section 135 Public Service Act 2020 Section 8 spouse or partner of a parent inserted 1 July 2005 section 3 Care of Children Amendment Act 2005
9: De facto partner defined
Section 9 repealed 1 July 2005 section 3 Care of Children Amendment Act 2005
10: De facto relationship defined
Section 10 repealed 1 July 2005 section 3 Care of Children Amendment Act 2005
11: Application
This Act applies to—
a: children living at the commencement of this Act ( see section 2
b: children born after that time. 1968 No 63 s 37
11A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA Section 11A inserted 14 August 2018 section 19 Minors (Court Consent to Relationships) Legislation Act 2018
12: Act binds the Crown
This Act binds the Crown.
13: Act a code
1: Except as otherwise expressly provided in this Act, this Act has effect in place of the rules of the common law and of equity as to the guardianship and custody of children.
2: In matters not provided for by this Act, the High Court continues to have all the powers in respect of the persons of children that the High Court had immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968. 1968 No 63 s 33(1), (3)
14: Administration of children’s property
1: The welfare and best interests of the child must be the first and paramount consideration in proceedings relating to the administration of, or to the allocation of income from, property belonging to, or held in trust for, a child.
2: No person may be appointed as, or have any powers as, guardian of the property of a child, except under an order of the kind referred to in section 33(1)
3: However, nothing in this Act limits any powers of the High Court in relation to, or in relation to the administration of, any property held on trust
4: Nothing in this section limits section 6 1968 No 63 ss 23(1), (3), 33(2) Section 14(3) amended 30 January 2021 section 161 Trusts Act 2019
2: Guardianship and care of children
1: Guardianship: responsibility for children, and decisions about children
Guardianship
15: Guardianship defined
For the purposes of this Act, guardianship guardian
a: all duties, powers, rights, and responsibilities that a parent of the child has in relation to the upbringing of the child:
b: every duty, power, right, and responsibility that is vested in the guardian of a child by any enactment:
c: every duty, power, right, and responsibility that, immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968 1968 No 63 s 3
16: Exercise of guardianship
1: The duties, powers, rights, and responsibilities of a guardian of a child include (without limitation) the guardian’s—
a: having the role of providing day-to-day care for the child (however, under section 26(5)
b: contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and
c: determining for or with the child, or helping the child to determine, questions about important matters affecting the child.
2: Important matters affecting the child
a: the child’s name (and any changes to it); and
aa: the child’s registered sex under the Births, Deaths, Marriages, and Relationships Registration Act 2021
b: changes to the child’s place of residence (including, without limitation, changes of that kind arising from travel by the child) that may affect the child’s relationship with his or her parents and guardians; and
c: medical treatment for the child (if that medical treatment is not routine in nature); and
d: where, and how, the child is to be educated; and
e: the child’s culture, language, and religious denomination and practice.
3: A guardian of a child may exercise (or continue to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to the child, whether or not the child lives with the guardian, unless a court order provides otherwise.
4: Court order section 40(2) section 41(2)
5: However, in exercising (or continuing to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to a child, a guardian of the child must act jointly (in particular, by consulting wherever practicable with the aim of securing agreement) with any other guardians of the child.
6: Subsection (5) does not apply to the exclusive responsibility for the child’s day-to-day living arrangements of a guardian exercising the role of providing day-to-day care. 1968 No 63 s 3 Section 16(2)﻿(aa) inserted 15 June 2023 section 147 Births, Deaths, Marriages, and Relationships Registration Act 2021 Guardianship based on parental status
17: Child’s father and mother usually joint guardians
1: The father and the mother of a child are guardians jointly of the child unless the child’s mother is the sole guardian of the child because of subsection (2) or subsection (3).
2: If a child is conceived on or after the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither—
a: married to , or in a civil union with,
b: living with the father of the child as a de facto partner at any time during that period.
3: If a child is conceived before the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither—
a: married to , or in a civil union with,
b: living with the father of the child as a de facto partner at the time the child was born.
3A: For the purposes of subsections (2) and (3), the mother and father of a child may be in a de facto relationship even if—
a: either parent is under 16; or
b: either parent is aged 16 or 17 and consent for the relationship (as referred to in section 14(2)
4: On the death of the father or the mother, the surviving parent, if he or she was then a guardian of the child, is the sole guardian of the child.
5: This section is subject to sections 18 to 34 section 26(2) section 33(1) 1968 No 63 s 6(1), (2), (4) Section 17(2)﻿(a) amended 1 July 2005 section 3 Care of Children Amendment Act 2005 Section 17(3)﻿(a) amended 1 July 2005 section 3 Care of Children Amendment Act 2005 Section 17(3A) inserted 1 July 2005 section 3 Care of Children Amendment Act 2005 Section 17(3A)﻿(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021
18: Father identified on birth certificate is guardian
1: A child’s father who is not a guardian of the child just because of section 17(2) or (3) section 12
2: Subsection (1) does not change the guardianship status of a father who became a guardian before the commencement of this section. Section 18 replaced 24 January 2009 section 47 Births, Deaths, Marriages, and Relationships Registration Amendment Act 2008 Section 18(1) amended 15 June 2023 section 147 Births, Deaths, Marriages, and Relationships Registration Act 2021
19: Father who was not mother’s spouse
, civil union partner,
1: If, because of section 17(2) or (3)
2: The father may apply to be appointed—
a: as a guardian of the child as well as the mother or a testamentary guardian appointed under section 26
b: as a guardian of the child instead of the mother or a testamentary guardian appointed under section 26
3: An application under subsection (2)﻿(b) must include an application under section 29
4: In response to an application under subsection (2), the court—
a: must appoint the father as a guardian of the child, unless to do so would be contrary to the child’s welfare and best interests; and
b: must determine any included application under section 29 1968 No 63 s 6(3) Section 19 heading amended 1 July 2005 section 3 Care of Children Amendment Act 2005
20: Declaration that father is guardian because of section 17
1: A man who alleges that he is a guardian of a child because of section 17 section 19
2: The court may make the order if satisfied that the man—
a: is a guardian of a child because of section 17
b: has not been deprived of his guardianship by an order under section 29
3: The Declaratory Judgments Act 1908 1968 No 63 s 6A Appointment of eligible spouse or partner of a parent as additional guardian Heading replaced 1 July 2005 section 3 Care of Children Amendment Act 2005
21: Who may appoint additional guardian under section 23
1: In this section, appointment spouse or partner of a parent section 23
2: If both parents of the child are guardians of the child, the appointment must be made by both of them.
3: If the mother of the child is the sole guardian of the child just because of section 17(2) or (3)
4: If a parent of the child is the sole guardian of the child because the other parent of the child is dead, or because of the application of Part 2
5: If, before dying, a parent of the child appointed a testamentary guardian of the child under section 26(1) Section 21(1) amended 1 July 2005 section 3 Care of Children Amendment Act 2005
22: Restrictions on making appointments under section 23
1: No appointment of an additional guardian of a child may be made under section 23
a: has a testamentary guardian appointed by the court under section 26(3)
b: has a court-appointed guardian because of an appointment under section 27
c: is or has been involved in proceedings under Part 2 Oranga Tamariki Act 1989
d: is or has been an applicant for, or the subject of, a protection order under the Family Violence Act 2018
2: No appointment of an additional guardian of a child may be made under section 23 section 21
a: has already appointed an additional guardian for the child under section 23
b: has been deprived of his or her guardianship by an order under section 29
c: is or has been involved in proceedings concerning a child under this Act, a former Act corresponding to this Act, or Part 2 Oranga Tamariki Act 1989
d: is or has been a respondent or associated respondent in proceedings under the Family Violence Act 2018
3: No appointment of an additional guardian of a child may be made under section 23
4: No appointment of an additional guardian of a child may be made under section 23
5: An appointment of an additional guardian under section 23 section 24(d)﻿(i) Section 22(1)﻿(c) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 22(1)﻿(d) amended 1 July 2019 section 16 Family Violence (Amendments) Act 2018 Section 22(2)﻿(c) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 22(2)﻿(d) amended 1 July 2019 section 16 Family Violence (Amendments) Act 2018
23: Appointment of eligible
spouse or partner of parent
1: An eligible spouse or partner of a parent section 21
a: both parents of the child:
b: a parent of the child:
c: a parent of the child and a guardian of the child.
2: A spouse or partner of a parent eligible spouse or partner of a parent and the spouse or partner
a: shares responsibility for the child’s day-to-day care, and has done so for not less than 1 year; and
b: is not, and has never been, involved in proceedings concerning a child under this Act, a former Act corresponding to this Act, or Part 2 Oranga Tamariki Act 1989
c: is not, and has never been, either a respondent or an associated respondent in proceedings under the Family Violence Act 2018
d: has never been convicted of an offence involving harm to a child, including (without limitation),—
i: an offence involving family violence (as defined in section 9
ii: an offence against the Films, Videos, and Publications Classification Act 1993
3: Child pornography publication section 2
a: because it promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both, for sexual purposes; or
b: because of the extent and degree to which, and the manner in which, it—
i: describes, depicts, or otherwise deals with sexual conduct with or by children, or young persons, or both; or
ii: exploits the nudity of children, or young persons, or both.
4: The appointment may be made only if each person making the appointment and the proposed additional guardian—
a: has taken all reasonable steps to ascertain and consider any views on the appointment expressed by the child; and
b: agrees to the appointment in writing.
5: The appointment must be in a form approved by the Secretary
a: the declarations specified in section 24
b: the proposed additional guardian’s criminal record.
6: Criminal record
7: If the proposed additional guardian is an eligible individual (as defined in section 4 section 19(3)﻿(e) Section 23 heading amended 1 July 2005 section 3 Care of Children Amendment Act 2005 Section 23(1) amended 1 July 2005 section 3 Care of Children Amendment Act 2005 Section 23(2) amended 1 July 2005 section 3 Care of Children Amendment Act 2005 Section 23(2)﻿(b) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 23(2)﻿(c) amended 1 July 2019 section 17(1) Family Violence (Amendments) Act 2018 Section 23(2)﻿(d)﻿(i) amended 1 July 2019 section 17(2) Family Violence (Amendments) Act 2018 Section 23(5) amended 31 March 2014 section 7 Care of Children Amendment Act (No 2) 2013
24: Declarations required by section 23(5)﻿(a)
The declarations required by section 23(5)﻿(a)
a: whether, in his or her opinion, the appointment is conducive to the welfare and best interests of the child; and
b: whether, in his or her opinion, he or she has taken all reasonable steps to ascertain and consider any views expressed on it by the child; and
c: (for a person making the appointment only) that he or she has seen the criminal record referred to in section 23(5)﻿(b)
d: that, to the best of his or her knowledge,—
i: the proposed additional guardian has never been convicted of an offence of the kind referred to in section 23(2)﻿(d)
ii: there is no other reason why the proposed additional guardian is not an eligible spouse or partner of a parent section 23(2) Section 24(d)﻿(ii) amended 1 July 2005 section 3 Care of Children Amendment Act 2005
25: Appointments under section 23 take effect on approval
1: An appointment under section 23 a Registrar of the Family Court
2: The Registrar must not approve those documents unless, having made all reasonable inquiries, he or she is satisfied—
a: that the form and declarations are accompanied by the proposed additional guardian’s criminal record (as required by section 23(5)
b: in particular, that the Family Court case-management system appears to hold no information that, in the light of section 22 section 23
3: Nothing in this section requires the Registrar to inquire into details of a conviction in the proposed additional guardian’s criminal record.
4: Family Court case-management system Section 25(1) amended 1 March 2017 section 261 District Court Act 2016 Testamentary guardians and court-appointed guardians
26: Testamentary guardians
1: The parent of a child may by deed or will (executed before or after the child’s birth) appoint a person to be a testamentary guardian of the child after the parent’s death.
2: If, at the time of his or her death, the parent appointing a guardian under subsection (1) is a guardian of the child, the testamentary guardian is from that time, if he or she is 20 years of age or older, either sole guardian or a guardian in addition to any other guardian, as the case may be.
3: If, at the time of his or her death, the parent appointing a guardian under subsection (1) is not a guardian of the child, the testamentary guardian may apply to the court, and the court may, if it thinks fit, appoint him or her as a guardian accordingly.
4: Despite any enactment or rule of law, a person under the age of 18 years may make an appointment under subsection (1).
5: Despite section 16(1) 1968 No 63 ss 3, 7
27: Court-appointed guardians
1: The court may appoint a person as a guardian of a child, either in addition to any other guardian or as sole guardian, either—
a: on an application for the purpose by any person; or
b: on its own initiative, on making an order removing a guardian under section 29
2: The court may appoint the person as a guardian of the child—
a: either for a specific purpose or generally; and
b: either for a specified period or not.
3: However, only the High Court may appoint or remove a litigation guardian for proceedings before the High Court or a court higher than that court, but the High Court may also appoint or remove a litigation guardian for proceedings that are not before the High Court or a court higher than that court. 1968 No 63 s 8 Termination of guardianship
28: Time at which guardianship ends
1: The duties, powers, rights, and responsibilities of a guardian of a child end when the first of the following events occurs:
a: the child turns 18 years:
b: the child marries or enters into a civil union
c: the child lives with another person as a de facto partner:
d: the guardian is removed by an order under section 29
e: if the guardian was appointed under section 27(2)
2: However, nothing in this section affects the appointment of, or the High Court’s powers in respect of, a litigation guardian. 1968 No 63 ss 8(1), 21 Section 28(1)﻿(b) amended 1 July 2005 section 3 Care of Children Amendment Act 2005
29: Court may remove guardians
1: On an application for the purpose by an eligible person, the court may make—
a: an order depriving a parent of the guardianship of his or her child; or
b: an order removing from office a testamentary guardian or court-appointed guardian; or
c: an order revoking an appointment of an additional guardian made under section 23
2: In this section, eligible person
a: a parent of the child:
b: a guardian of the child:
c: a grandparent or an aunt or an uncle of the child:
d: a sibling (including a half-sibling) of the child:
e: a spouse or partner of a parent
f: any other person granted leave to apply by the court.
3: An order under subsection (1)﻿(a) (that is, an order depriving a parent of the guardianship of his or her child) must not be made unless the court is satisfied—
a: that the parent is unwilling to perform or exercise the duties, powers, rights, and responsibilities of a guardian, or that the parent is for some grave reason unfit to be a guardian of the child; and
b: that the order will serve the welfare and best interests of the child.
4: An order under subsection (1)﻿(b) or (c) must not be made unless the court is satisfied that the order will serve the welfare and best interests of the child.
5: On making an order under subsection (1), the court may also make on its own initiative an order under section 27 1968 No 63 s 10 Section 29(2)﻿(e) amended 1 July 2005 section 3 Care of Children Amendment Act 2005
29A: Revocation of appointment as guardian
1: The court may, on application, revoke the appointment under section 27
a: the person is a permanent caregiver (as defined in section 2(1) Oranga Tamariki Act 1989
b: the application is made at the same time as an application referred to in section 110A
c: a guardianship order under section 110 section 113A
2: If the court revokes an appointment under this section, it must discharge, under section 56 section 48 Section 29A inserted 30 June 2016 section 43(2) Children, Young Persons, and Their Families (Vulnerable Children) Amendment Act 2014 Section 29A(1)﻿(a) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Guardianship of court
30: Concurrent jurisdiction under section 31
1: The following courts have jurisdiction under section 31
a: the High Court:
b: the Family Court.
2: The Family Court section 31
a: the application is filed in the Family Court; and
b: at the date of filing, proceedings relating to the same matter have commenced in the High Court.
3: The High Court may order proceedings to be removed to the Family Court
a: an application is made under section 31
b: the High Court is satisfied that the proceedings would be more appropriately dealt with in the Family Court
4: The High Court must order proceedings to be removed to the High Court if—
a: an application is made under section 31 the Family Court
b: a party to the proceedings applies to the High Court to have the proceedings removed to the High Court; and
c: the High Court is satisfied that the proceedings would be more appropriately dealt with in the High Court.
5: Proceedings removed to the High Court continue in that court as if they had been properly commenced there. 1968 No 63 s 10A Section 30(1)﻿(b) replaced 1 March 2017 section 261 District Court Act 2016 Section 30(2) amended 1 March 2017 section 261 District Court Act 2016 Section 30(3) amended 1 March 2017 section 261 District Court Act 2016 Section 30(3)﻿(b) amended 1 March 2017 section 261 District Court Act 2016 Section 30(4)﻿(a) amended 1 March 2017 section 261 District Court Act 2016
31: Application to court
1: An eligible person may make an application to a court with jurisdiction under this section for—
a: an order placing under the guardianship of the court a child who is not married, in a civil union, or in a de facto relationship
b: an order appointing a named person to be the agent of the court either generally or for any particular purpose.
2: In this section, eligible person
a: a parent or guardian of the child:
b: a grandparent or an aunt or an uncle of the child:
c: a sibling (including a half-sibling) of the child:
d: a spouse or partner of a parent
e: the child himself or herself (who may apply without any litigation guardian):
f: the chief executive:
g: any other person granted leave to apply by the court. 1968 No 63 s 10B Section 31(1)﻿(a) amended 1 July 2005 section 3 Care of Children Amendment Act 2005 Section 31(2)﻿(d) amended 1 July 2005 section 3 Care of Children Amendment Act 2005
32: Notice to be given to chief executive in certain cases before Family Court
1: This section applies when—
a: an application is—
i: made under section 31 the Family Court
ii: removed under section 30(3) the Family Court
b: neither section 30(2)
c: any of the following applies:
i: the application seeks an order appointing the chief executive to be the agent of the court, either generally or for a particular purpose, in respect of the child who is the subject of the application; or
ii: the application does not seek an order of the kind described in subparagraph (i), but the court considers, at any stage of the proceedings, that it is likely to make such an order; or
iii: the child who is the subject of the application is in the custody or under the guardianship or in the care of the chief executive or any other person under the Oranga Tamariki Act 1989
iv: a warrant in respect of the child who is the subject of the application has been issued under any of sections 39 40 122 157(2) 205(2)﻿(b) 386
2: When this section applies,—
a: the court must give notice of the application to the chief executive; and
b: on receipt of the notice, the chief executive is entitled to appear and be heard on the application.
3: Subsection (2) does not apply if the court considers that the delay that would be caused by giving notice would or might entail serious injury or undue hardship to the child.
4: If this section applies and the court makes an interim order without giving notice to the chief executive,—
a: the court must give notice of the application and the interim order to the chief executive; and
b: on receipt of the notice, the chief executive is entitled to appear and be heard on the matters of the application and the interim order. 1968 No 63 s 10C Section 32(1)﻿(a)﻿(i) amended 1 March 2017 section 261 District Court Act 2016 Section 32(1)﻿(a)﻿(ii) amended 1 March 2017 section 261 District Court Act 2016 Section 32(1)﻿(c)﻿(iii) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017
33: Orders of court
1: A court to which an application is made under section 31
a: make an order described in section 31(1)﻿(a)
b: make orders described in section 31(1)﻿(a) and (b)
c: make—
i: an order described in section 31(1)﻿(a)
ii: an order appointing any person whom the court thinks fit to be the agent of the court either generally or for any particular purpose.
2: An order under subsection (1) in respect of a child ceases to have effect when the first of the following events occurs:
a: the court orders that the order ceases to have effect; or
b: the child turns 18 years; or
c: the child marries or enters into a civil union
d: the child lives with another person as a de facto partner. 1968 No 63 s 10D Section 33(2)﻿(c) amended 1 July 2005 section 3 Care of Children Amendment Act 2005
34: Powers of court
1: A court to which an application is made under section 31
a: between the making of the application for an order and its disposal; and
b: while an order is in force.
2: The court has the same rights and powers in respect of the person and property of the child as the High Court had in relation to wards of court immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968
a: direct any child who is of or over the age of 16 years to live with any person unless the circumstances are exceptional; or
b: commit for contempt of court a child or the child’s spouse for marrying without the court’s consent while the child is under the guardianship of the court.
3: The High Court has all the powers of the Family Court section 31 section 33 the Family Court 1968 No 63 s 10E Section 34(3) amended 1 March 2017 section 261 District Court Act 2016
35: Further provisions relating to powers of court
1: This section applies to a court if it is the Family Court section 31
2: The court may, before or by or after the principal order, make any interim or final order it thinks fit about the role of providing day-to-day care for, or about contact with, or about the upbringing of, a child who is the subject of the proceedings.
3: Section 50
4: The court may, if in all the circumstances it thinks it appropriate to do so, make an order vesting the sole guardianship of the child in 1 of the parents, or make any other order with respect to the guardianship of the child that it thinks fit. However, if the court makes no order with respect to the guardianship of the child, every person who was a guardian of the child continues to be a guardian of the child.
5: An order may be made under this section, and an order made under this section may be varied or discharged, even though the court has refused to make the principal order or to give any other relief sought. 1968 No 63 s 12(1), (2)–(5) Section 35(1) amended 1 March 2017 section 261 District Court Act 2016 Consent to medical procedures
36: Consent to procedures generally
1: A consent, or refusal to consent, to any of the following, if given by a child of or over the age of 16 years, has effect as if the child were of full age:
a: any donation of blood by the child:
b: any medical, surgical, or dental treatment or procedure (including a blood transfusion, which, in this section, has the meaning given to it by section 37(1)
2: A child’s consent, or refusal to consent, to any donation of blood, or to any medical, surgical, or dental treatment or procedure (including a blood transfusion), whether to be carried out on the child or on any other person, has the same effect as if the child were of full age if the child is or has been—
a: married or in a civil union
b: living with another person as a de facto partner.
3: If the consent of any other person to any medical, surgical, or dental treatment or procedure (including a blood transfusion) to be carried out on a child is necessary or sufficient, consent may be given—
a: by a guardian of the child; or
b: if there is no guardian in New Zealand or no guardian of that kind can be found with reasonable diligence or is capable of giving consent, by a person in New Zealand who has been acting in the place of a parent; or
c: if there is no person in New Zealand who has been so acting, or if no person of that kind can be found with reasonable diligence or is capable of giving consent, by a District Court Judge or the chief executive.
4: If a child has been lawfully placed for the purpose of adoption in the home of any person, then, for the purposes of subsection (3), that person must be treated as a guardian of the child.
5: Nothing in this section affects an enactment or rule of law by or under which, in any circumstances,—
a: no consent or no express consent is necessary; or
b: the consent of the child in addition to that of any other person is necessary; or
c: subject to subsection (2), the consent of any other person instead of the consent of the child is sufficient.
6: Except to the extent that this section enables a blood transfusion to be administered to a child without the consent of any other person, nothing in this section affects section 37
7: Subsection (1) is subject to subsection (6). 1968 No 63 s 25 Section 36(2)﻿(a) amended 1 July 2005 section 3 Care of Children Amendment Act 2005
37: Immunity of health practitioners administering certain blood transfusions without consent
1: In this section and section 36 blood transfusion transfusion health practitioner section 5(1)
2: Except by leave of a Judge of the High Court, no civil, criminal, or disciplinary proceedings may be brought against a person in respect of the administration by a health practitioner of any blood transfusion to a person under the age of 18 years (in this section called the patient
3: The Judge must not grant leave if the Judge is satisfied—
a: that the transfusion was, in the opinion of the health practitioner who administered it, necessary to save the life of the patient or to prevent permanent injury to the patient’s physical or mental health, or to save the patient from prolonged and avoidable pain and suffering, and that the opinion of the health practitioner was reasonable; and
b: that—
i: reasonable attempts were made to obtain the consent of the person appearing to be legally entitled to consent to the transfusion; or
ii: the circumstances were such that it was necessary to administer the transfusion promptly and it was impracticable, in the time available, to attempt to obtain the consent of the person appearing to be legally entitled to consent; and
c: that in all the circumstances it was reasonable to administer the transfusion.
4: In considering the reasonableness of the opinion of the health practitioner referred to in subsection (3)﻿(a), the Judge must take into account the following:
a: the condition of the patient before the transfusion:
b: the circumstances in which it was administered:
c: whether, in the circumstances, it was reasonably practicable for the health practitioner to consult any other health practitioner before administering the transfusion:
d: any opinion given by any health practitioner who was so consulted:
e: all other circumstances the Judge considers relevant.
5: Nothing in this section affects any enactment or rule of law relating, in respect of the performance of any operation,—
a: to the protection of any person from any civil, criminal, or disciplinary liability; or
b: to any matter of justification or excuse. 1956 No 65 s 126B
38: Consent to abortion
1: If given by a female child (of whatever age), the following have the same effect as if she were of full age:
a: a consent to the carrying out on her of any medical or surgical procedure for the purpose of terminating her pregnancy by a person professionally qualified to carry it out; and
b: a refusal to consent to the carrying out on her of any procedure of that kind.
2: This section overrides section 36 1968 No 63 s 25A
2: Care of children: making arrangements and resolving disputes
Making arrangements
39: Purpose of sections 40 to 43
The purpose of sections 40 to 43
40: Agreements between parents and guardians
1: A party to an agreement to which subsection (2) applies may seek to have the terms of the agreement embodied in an order of the court that may be enforced, as provided in subsections (3) and (4).
2: This subsection applies to an agreement between parents or guardians of a child so far as it relates to when 1 or more specified persons have the role of providing day-to-day care for the child or have contact with the child, or to the upbringing of the child, or to any combination of those matters.
3: An agreement to which subsection (2) applies cannot be enforced under this Act, but some or all of the terms of the agreement may be embodied in an order of the court if, under 1 or more provisions of this Act other than this section (for example, under section 48(1)
a: some or all of the parties to the agreement may apply for the order; and
b: the order may be made by the court.
4: The order may be enforced under this Act in the same way as an order that does not embody terms of an agreement to which subsection (2) applies. 1968 No 63 s 18 Section 40(1) replaced 31 March 2014 section 8 Care of Children Amendment Act (No 2) 2013
41: Agreements between parents and donors
1: A party to an agreement to which subsection (2) applies—
a: may seek to have terms of the agreement embodied in an order of the court that may be enforced, as provided in subsections (3) and (4); and
b: may apply to the court for its direction on certain matters that cannot be agreed with other parties to the agreement, as provided in subsections (5) and (6).
2: This subsection applies to an agreement between the parents of a child and a donor or donors so far as it relates to contact between the donor or donors and the child, or to the role of the donor or donors in the upbringing of the child, or to both.
3: An agreement to which subsection (2) applies cannot be enforced under this Act, but, on an application for the purpose by a party to it, the court may, with the consent of all parties to it, make an order of the court that embodies some or all of the terms of the agreement.
4: An order under subsection (3) may, so far as it relates to contact with the child, be enforced under this Act as if it were a parenting order relating to contact.
5: Any of the parties to an agreement to which subsection (2) applies may apply to the court for its direction if those parties are unable to agree on a matter—
a: concerning the role of the donor or donors in the upbringing of the child; and
b: that is the subject of terms of the agreement embodied in an order under subsection (3).
6: On an application under subsection (5), the court may make any order relating to the matter that it thinks proper. 1968 No 63 s 18 s 15
42: Definitions for section 41
In this section and section 41 AHR procedure section 14(1) child donor
a: in relation to a child conceived as a result of an AHR procedure, means a donor of semen, or of an ovum, or of an ovum from which was derived an embryo, that was used in the procedure; and
b: in relation to a child proposed to be conceived as a result of an AHR procedure,—
i: means a donor of semen, or of an ovum, or of an ovum from which was derived an embryo, that is to be used in the procedure; and
ii: includes a person who intends to be a donor of that kind; but
c: does not include a person who has adopted, or intends to adopt, the child (whenever the adoption or intention to adopt occurs) parents
a: in relation to a child conceived as a result of an AHR procedure, means every person who is a parent of the child when the child is conceived as a result of the procedure; and
b: in relation to a child proposed to be conceived as a result of an AHR procedure, means every person who will be a parent of the child if and when the child is conceived as a result of the procedure; but
c: does not include a person who has adopted, or intends to adopt, the child (whenever the adoption or intention to adopt occurs). Section 42 amended 1 July 2005 section 3 Care of Children Amendment Act 2005
43: Agreements may be entered into by minors
Sections 40(2) 41(2) 1976 No 166 s 21I(1) Resolving disputes Heading repealed 31 March 2014 section 9 Care of Children Amendment Act (No 2) 2013
44: Disputes between guardians
Section 44 repealed 31 March 2014 section 9 Care of Children Amendment Act (No 2) 2013
45: Family Proceedings Act 1980 dispute resolution provisions apply to certain proceedings
Section 45 repealed 31 March 2014 section 9 Care of Children Amendment Act (No 2) 2013
46: Certain children may seek review of parent’s or guardian’s decision or refusal to give consent
Section 46 repealed 31 March 2014 section 9 Care of Children Amendment Act (No 2) 2013 Consent to certain decisions Heading inserted 1 July 2005 section 3 Care of Children Amendment Act 2005
46A: Consent for de facto relationship
1: A child aged 16 or 17 who wishes to obtain consent for his or her de facto relationship must make an application to the Family Court for the consent of a Family Court Judge.
2: A Family Court Judge may, on an application of a child made under subsection (1), consent to the de facto relationship only if the Judge is satisfied that—
a: the child has made the application voluntarily, free of undue influence or coercion; and
b: the child understands the consequences of the application and wants the Judge to consent to the de facto relationship; and
c: the de facto relationship is in the child’s interests.
3: In determining whether the de facto relationship is in the child’s interests, the matters that the Judge must take into account include, without limitation,—
a: the age and maturity of the child; and
b: the child’s views; and
c: any views of the child’s parents and guardians that can reasonably be ascertained; and
d: any other information available to the court relevant to the child’s application. Section 46A replaced 14 August 2018 section 20 Minors (Court Consent to Relationships) Legislation Act 2018
46B: Consent where child has no guardian
1: This section applies to a child who does not have a guardian because guardianship of the child has ended under section 28(1)
2: If an enactment requires that the child obtains the consent of 1 or more guardians for a particular purpose, the child may—
a: seek the consent from his or her former guardians; or
b: apply to the court for the consent.
3: When an application is made under subsection (2)﻿(b), a Family Court Judge may, if he or she considers that giving the consent is reasonable in all the circumstances, give the consent required.
4: A consent given to a child for a purpose referred to in subsection (2), either by the child’s former guardians or by a Family Court Judge under subsection (3), has the same effect as if it had been given by all the people whose consent was required for that purpose. Section 46B inserted 1 July 2005 section 3 Care of Children Amendment Act 2005
46C: Certain children may seek review of parent's or guardian's decision or refusal to give consent
1: A child of or over the age of 16 years who is affected by a decision or by a refusal of consent by a parent or guardian in an important matter may (unless the child is under the guardianship of the court) apply to a Family Court Judge, who may, if he or she thinks it reasonable in all the circumstances to do so, review the decision or refusal and make any order in respect of it that he or she thinks fit.
2: A consent given by a Family Court Judge under this section has the same effect as if it had been given by the parent or guardian.
3: Section 46C inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013 Section 46C(3) repealed 14 August 2018 section 21 Minors (Court Consent to Relationships) Legislation Act 2018 Family dispute resolution Heading inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013
46D: Meaning of family dispute resolution
In sections 46E 46F family dispute resolution family dispute resolution form FDR provider Family Dispute Resolution Act 2013 Section 46D inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013
46E: Family dispute resolution mandatory before commencement of proceedings
1: This section applies to an application under section 46R 48
2: The application must be accompanied by a family dispute resolution form that has been signed by an FDR provider within the preceding 12 months.
3: Subsection (2) does not apply if subsection (4) applies.
4: A family dispute resolution form is not required to accompany an application that—
a: is in response to an application that another party to the proceedings has made for an order under section 46R 48
b: is without notice; or
c: is for a consent order; or
d:
e: relates to a child who is the subject of proceedings already begun under Part 2 Oranga Tamariki Act 1989
f: is accompanied by an affidavit that provides evidence of either of the following matters:
i: that at least 1 of the parties to the family dispute is unable to participate effectively in family dispute resolution:
ii: that at least 1 of the parties to the family dispute, or a child of one of the parties, has been subject to family violence
5: A Registrar may refuse to accept for filing an application that is accompanied by an affidavit of the kind referred to in subsection (4)﻿(f) if the affidavit does not provide sufficient evidence of either of the matters set out in subparagraphs (i) and (ii) of that paragraph.
6: A Registrar who is unsure, under subsection (5), whether to refuse to accept an application for filing may refer that application and accompanying affidavit to a Judge, and the Judge must determine whether the affidavit provides sufficient evidence of either of the matters set out in subsection (4)﻿(f). Section 46E inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013 Section 46E(4)﻿(d) repealed 14 November 2018 section 103 Courts Matters Act 2018 Section 46E(4)﻿(e) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 46E(4)﻿(f)﻿(ii) amended 1 July 2019 section 18 Family Violence (Amendments) Act 2018
46F: Family dispute resolution after proceedings commenced
1: This section applies after an application has been made to the Family Court
a: a direction under section 46R
b: a parenting order under section 48
2: At any time before the application is finally determined, a Family Court Judge may direct the parties to attend family dispute resolution.
3: A direction under subsection (2) may only be made by a Judge if—
a: the Judge considers that there is a reasonable prospect that family dispute resolution will assist the parties in reaching an agreement on the resolution of the matters in dispute; and
b: the parties—
i: have not participated in family dispute resolution in the preceding 12 months; or
ii: have participated in family dispute resolution in the preceding 12 months but consent to the direction being made.
4: A direction under subsection (2) may be made only once. Section 46F inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013 Section 46F(1) amended 1 March 2017 section 261 District Court Act 2016 Counselling Heading inserted 25 September 2013 section 10 Care of Children Amendment Act (No 2) 2013
46G: Counselling after proceedings commenced
1: This section applies after an application has been made to the Family Court
a: a direction under section 46R
b: a parenting order under section 48
2: A Family Court Judge may direct the Registrar of the court to refer the parties to the application to counselling services for either or both of the following purposes:
a: to improve the relationship between the parties:
b: to encourage compliance with any direction or order made by the court.
3: A direction under subsection (2) may only be made by a Family Court Judge if the Judge considers that the provision of counselling services is the best means of assisting the parties with their relationship or the implementation of any decision of the court, or both of those matters.
4: A Family Court Judge may make a direction under subsection (2)—
a: at any stage of the proceedings, including when making a final order; but
b: once only.
5: On receipt of a direction under subsection (2), the Registrar must—
a: arrange for the parties to be referred to a counsellor or an approved counselling organisation; and
b: inform the parties accordingly. Section 46G inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013 Section 46G(1) amended 1 March 2017 section 261 District Court Act 2016
46H: Approval of counselling organisation
1: The Secretary may, by notice in the Gazette
2: In deciding whether to approve an organisation under subsection (1), the Secretary must apply any criteria prescribed by regulations made under section 147(2)﻿(aa)
3: An approval under subsection (1) may be made on any terms and conditions the Secretary thinks fit. Section 46H inserted 25 September 2013 section 10 Care of Children Amendment Act (No 2) 2013
46I: Suspension or cancellation of approval of counselling organisation
1: The Secretary may, by notice in the Gazette section 147(2)﻿(ab)
2: If under subsection (1) the Secretary suspends the approval of an organisation, the organisation is not an approved counselling organisation during the period for which the approval is suspended. Section 46I inserted 25 September 2013 section 10 Care of Children Amendment Act (No 2) 2013
46J: Duties of approved counselling organisation
An approved counselling organisation to which any parties are referred under section 46G(5)﻿(a)
a: nominate a counsellor to provide counselling services to the parties; and
b: arrange for the counsellor to meet with the parties. Section 46J inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013
46K: Appointment of counsellors
1: The Secretary or an approved counselling organisation may appoint a person as a counsellor if the Secretary or approved counselling organisation is satisfied that the person is qualified and competent to provide counselling services.
2: In deciding whether a person meets the criteria in subsection (1), the Secretary or approved counselling organisation must apply the qualification and competency requirements prescribed by regulations made under section 147(2)﻿(ac) and (ad) Section 46K inserted 25 September 2013 section 10 Care of Children Amendment Act (No 2) 2013
46L: Privilege
1: This section applies to a statement a party makes to a counsellor for the purpose of enabling the counsellor to provide counselling services.
2: No evidence of the statement is admissible in any court or before any person acting judicially.
3: A counsellor commits an offence and is liable on conviction to a fine not exceeding $500 who discloses to any other person a statement made to the counsellor for the purpose of enabling the counsellor to provide counselling services. Section 46L inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013
46M: Number of sessions of counselling
The maximum number of sessions of counselling to be carried out under section 46G section 147(2)﻿(ae) Section 46M inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013
46N: Counselling fees and expenses
Fees in respect of counselling carried out under section 46G
a: be determined in accordance with regulations made under section 147(2)﻿(af)
b: be paid in accordance with that determination out of public money appropriated by Parliament for the purpose. Section 46N inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013 Parenting information programmes Heading inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013
46O: Judge may direct party to undertake parenting information programme
1: At any time after an application has been made to the court for a parenting order under section 48
2: However, the Family Court Judge may not make a direction under subsection (1) in respect of a party if that party has undertaken a parenting information programme within the preceding 2 years. Section 46O inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013 Settlement conferences Heading inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013
46P: Purpose of settlement conferences
The purpose of a settlement conference is to enable a Family Court Judge to—
a: ascertain whether any or all of the issues in dispute between the parties can be settled; and
b: settle those issues. Section 46P inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013
46Q: Settlement conferences
1: A Family Court Judge may, before the hearing of a proceeding, direct the Registrar to convene a settlement conference.
2: However, a settlement conference may be convened under subsection (1) on 1 occasion only, but may be adjourned at any time and to any place.
3: At a settlement conference, a Family Court Judge may, with the consent of the parties, make an order settling some or all of the issues in dispute between the parties.
4: Before a party consents to the making of an order, a Family Court Judge may advise that party to obtain legal advice. Section 46Q inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013 Guardianship disputes Heading inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013
46R: Disputes between guardians
1: If 2 or more guardians of a child are unable to agree on a matter concerning the exercise of their guardianship, any of them may apply to the court for its direction.
2: An application under subsection (1) must be made to the Family Court
3: An application under subsection (1) must be made to the High Court, and the High Court has exclusive jurisdiction to settle the dispute, where,—
a: under an order of the High Court, 2 or more persons are guardians of, or have the role of providing day-to-day care for, a child, and that order has not been removed into the Family Court section 127
b: a child is under the guardianship of the High Court.
4: On an application under subsection (1), the court may make any order relating to the matter that it thinks proper. Section 46R inserted 31 March 2014 section 10 Care of Children Amendment Act (No 2) 2013 Section 46R(2) amended 1 March 2017 section 261 District Court Act 2016 Section 46R(3)﻿(a) amended 1 March 2017 section 261 District Court Act 2016 Parenting orders
47: Who may apply for parenting order
1: In section 48(1) eligible person
a: a parent of the child:
b: a guardian of the child:
c: a spouse or partner of a parent
d: any other person who is a member of the child’s family, whānau, or other culturally recognised family group, and who is granted leave to apply by the court:
e: any other person granted leave to apply by the court.
2: However, if a parent of a child has died or has been refused contact with the child by a court, or if a parent entitled to have contact with a child is making no attempt to have that contact, then each of the following persons is, for the purposes of an application for an order under section 48(1) eligible person
a: the parents of that parent of the child; and
b: a sibling of that parent of the child; and
c: a sibling of the child. 1968 No 63 ss 11(1), 15(1), 16(1) Section 47(1)﻿(c) amended 1 July 2005 section 3 Care of Children Amendment Act 2005
47A: Mandatory statement in applications
1: This section applies to an application for a parenting order under section 48
2: The application must include a statement made by or on behalf of the applicant for the order about whether and how the order can and should provide for any other person or persons to have the role of providing day-to-day care for, or contact with, the child. Section 47A inserted 31 March 2014 section 11 Care of Children Amendment Act (No 2) 2013
47B: Mandatory statement and evidence in applications
1: This section applies to—
a: an application for a parenting order under section 48
b: an application to vary a parenting order under section 56
2: The application must include—
a: a statement, made by or on behalf of the applicant for the order, that the applicant has undertaken a parenting information programme within the preceding 2 years; and
b: evidence in support of that statement.
3: However, subsection (2) does not apply to an application that—
a: is made in response to an application that another party to the proceedings has made for an order under section 48 56
b: is made without notice; or
c: is for a consent order; or
d: relates to a child who is the subject of proceedings already begun under Part 2
e: is brought by a person, who is not the parent or guardian of the child, and is brought by that person in response to the chief executive of Oranga Tamariki—Ministry for Children exercising a power or carrying out a function in relation to that child under Part 2 4
f: is accompanied by an affidavit providing evidence that—
i: the applicant is unable to participate effectively in a parenting information programme; or
ii: at least 1 of the parties to the proceedings, or a child of one of the parties, has been subject to family violence (as defined in section 9
4: A Registrar may refuse to accept an application if the Registrar considers that the evidence provided under subsection (2)﻿(b) or (3)﻿(f) is insufficient. Section 47B inserted 31 March 2014 section 11 Care of Children Amendment Act (No 2) 2013 Section 47B(2) replaced 14 November 2018 section 104 Courts Matters Act 2018 Section 47B(3) replaced 14 November 2018 section 104 Courts Matters Act 2018 Section 47B(3)﻿(f)﻿(ii) amended 30 November 2022 section 20 Statutes Amendment Act 2022 Section 47B(4) replaced 14 November 2018 section 104 Courts Matters Act 2018
48: Parenting orders
1: On an application made to it for the purpose by an eligible person, the court may make a parenting order determining the time or times when specified persons have the role of providing day-to-day care for, or may have contact with, the child.
2: A parenting order determining that a person has the role of providing day-to-day care for the child may specify that the person has that role—
a: at all times or at specified times; and
b: either alone or jointly with 1 or more other persons.
3: A parenting order determining that a person may have contact with the child may specify any of the following:
a: the nature of that contact (for example, whether it is direct (that is, face to face) contact or some form of indirect contact (for example, contact by way of letters, telephone calls, or email)):
b: the duration and timing of that contact:
c: any arrangements that are necessary or desirable to facilitate that contact.
4: A parenting order (whether an interim parenting order or a final parenting order) may be made subject to any terms or conditions the court considers appropriate (for example, a condition requiring a party to enter into a bond).
5:
6: 1968 No 63 ss 11, 15, 16 Section 48(4) replaced 31 March 2014 section 12 Care of Children Amendment Act (No 2) 2013 Section 48(5) repealed 31 March 2014 section 12 Care of Children Amendment Act (No 2) 2013 Section 48(6) repealed 31 March 2014 section 12 Care of Children Amendment Act (No 2) 2013
49: Interim parenting orders
1: At any time before an application for a parenting order is finally determined in a court, a Judge may make an interim parenting order that has effect until—
a: a specified date; or
b: a specified event; or
c: it is replaced by—
i: another interim order; or
ii: a final order.
2: However, a Judge must not make an interim order unless the Judge is satisfied that an interim order serves the welfare and best interests of the child better than a final order. Section 49 replaced 31 March 2014 section 13 Care of Children Amendment Act (No 2) 2013
49A: Interim parenting order where parent does not have day-to-day care for, or contact with, child
1: This section applies if—
a: an interim parenting order is made; and
b: the parents of the child in respect of whom the interim parenting order is made are parties to the order; and
c: under the interim parenting order, one of the parents has neither the role of providing day-to-day care for nor contact with the child.
2: If the interim order was made on an application without notice, the parent who has neither the role of providing day-to-day care for nor contact with the child may give notice to the court that he or she wishes to be heard and, if he or she does so, the Registrar of the court must assign a hearing date that is—
a: as soon as practicable; and
b: not more than 42 days after the notice is received, unless there are special circumstances.
3: In any other case, the court must assign a hearing date that is—
a: as soon as practicable; and
b: not more than 3 months after the date on which the interim parenting order was made.
4: At the hearing on the date assigned under subsection (2) or (3), the court may replace the interim order with—
a: a further interim order; or
b: a final parenting order. Section 49A inserted 31 March 2014 section 13 Care of Children Amendment Act (No 2) 2013 Section 49A(2) replaced 14 November 2018 section 105 Courts Matters Act 2018 Section 49A(3) inserted 14 November 2018 section 105 Courts Matters Act 2018 Section 49A(4) inserted 14 November 2018 section 105 Courts Matters Act 2018
49B: Interim parenting order may become final order on specified date
1: When making an interim parenting order that has effect until a specified date (the specified date section 7
2: If a party to the proceeding or any lawyer appointed under section 7
3: When an interim parenting order becomes a final parenting order under subsection (2), the final parenting order comes into effect immediately. Section 49B inserted 31 March 2014 section 13 Care of Children Amendment Act (No 2) 2013
49C: Final parenting orders
1: At any time during a proceeding, a Judge may make a final parenting order if the parties consent.
2: When an application for a parenting order is finally determined by the court, a Judge must make a final parenting order. Section 49C inserted 31 March 2014 section 13 Care of Children Amendment Act (No 2) 2013
50: Parenting orders in respect of children of or over 16 years
1: A parenting order determining the person or persons who have the role of providing day-to-day care for a child of or over the age of 16 years must not be made unless there are special circumstances.
2: An order in respect of a child under the age of 16 years expires, so far as it relates to providing day-to-day care for the child, when the child attains that age unless the court in special circumstances orders otherwise on or after making the order.
3: Nothing in this section applies in respect of children who are under the guardianship of the court, or affects the power of the court to make orders in respect of the upbringing of a child, or to appoint or remove guardians. 1968 No 63 s 24
51: Court must consider protective conditions in certain cases
1: This section applies to a parenting order when—
a: the order provides for a person ( person A
b: the court is satisfied that person A has inflicted family violence (as defined in section 9 person B
2: The court must consider whether the order should be subject to conditions imposed for the purpose of protecting the safety of person B while person A’s contact with the child takes place (including while the child is being collected from, or returned to, person B).
3: 1968 No 63 s 15(2B) Section 51(1)﻿(b) amended 1 July 2019 section 19 Family Violence (Amendments) Act 2018 Section 51(3) repealed 31 March 2014 section 14 Care of Children Amendment Act (No 2) 2013
52: Court must consider contact arrangements in certain cases
If a court proposes to make a parenting order that does not give a parent the role of providing day-to-day care for a child, the court must consider whether and how the order can and should provide for that parent to have contact with the child.
53: Orders in proceedings under Family Proceedings Act 1980
1: This section applies if the Family Court is Family Proceedings Act 1980 or civil union ab initio or civil union
2: The court may, before or by or after the principal order, make any interim or final order it thinks fit about the role of providing day-to-day care for, or about contact with, or about the upbringing of, a child of the marriage or a child of the civil union section 2
3: Section 50
4: The court may, if in all the circumstances it thinks it appropriate to do so, make an order vesting the sole guardianship of the child in 1 of the parents, or make any other order with respect to the guardianship of the child that it thinks fit. However, if the court makes no order with respect to the guardianship of the child, every person who was a guardian of the child continues to be a guardian of the child.
5: Despite subsection (4), an order depriving a parent of the guardianship of his or her child may be made under that subsection only if the court is satisfied of the matters stated in section 29(3)﻿(a) and (b)
6: An order may be made under this section, and an order made under this section may be varied or discharged, even though the court has refused to make the principal order or to give any other relief sought. 1968 No 63 s 12(1), (2)–(5), (6)﻿(b) Section 53(1) amended 1 March 2017 section 261 District Court Act 2016 Section 53(1) amended 1 July 2005 section 3 Care of Children Amendment Act 2005 Section 53(2) amended 1 July 2005 section 3 Care of Children Amendment Act 2005
54: Orders in proceedings under Domestic Violence Act 1995
Section 54 repealed 16 November 2011 section 7 Care of Children Amendment Act 2011
55: Content and explanation of parenting orders
1: An order under section 48(1)
a: must contain an explanation, based on the precise terms of the particular order, of—
i: the effect of the order (for example, of the obligations the order creates); and
ii: any processes for the monitoring and review of the order, and the means by which the order can be varied or discharged; and
iii: the consequences that may follow if the order is not complied with; and
b: without limiting paragraph (a), must be accompanied by general information, in a form approved by the Secretary
2: A lawyer acting for, or other person representing, a party to an order under section 48(1)
3: Explanations required by subsections (1)﻿(a) and (2) must be given in a manner and in language that the recipients of those explanations understand.
4: A lawyer acting for, or other person representing, a child, must take all reasonable steps to ensure that the effect of an order under section 48(1)
5: A failure to comply with a requirement imposed by this section does not affect the validity of the order concerned. 1989 No 24 s 10 s 87 Section 55(1)﻿(b) amended 31 March 2014 section 15 Care of Children Amendment Act (No 2) 2013
56: Variation or discharge of parenting and other orders
1: On an application for the purpose by an eligible person, the court may vary or discharge any of the following:
a: a parenting order (whether the order is about the person or persons who have the role of providing day-to-day care for a child, or about contact with the child, or about both of those matters):
b: any other order about the role of providing day-to-day care for, or about contact with, a child:
c: an order about the upbringing of a child.
2: On an application for the purpose by an eligible person, the court may vary or discharge an order vesting the guardianship of a child in 1 parent or in any other person or persons. If the order is discharged, and no other order with respect to the guardianship of the child is made, guardianship vests in the person or persons (if any) who would be the guardian or guardians if the order discharged had not been made.
3: In this section, eligible person
a: a person affected by the order:
b: a person acting on behalf of the child.
4: Subsections (1) and (2) apply to orders of the kind referred to in those subsections whether or not the orders were made after the commencement of this Act, but nothing in those subsections applies to—
a: any order under the Oranga Tamariki Act 1989
b: any interim order or adoption order under the Adoption Act 1955
5: Subsection (2) does not limit section 29 1968 No 63 s 17 Section 56(4)﻿(a) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017
57: Variation of final parenting order by consent memorandum instead of application
1: This section applies if the parties to a final parenting order made under this Act agree to a variation of the order, or to a variation of any term or condition to which the order is subject (the proposed variation
2: A party to the final parenting order may, instead of applying under section 56
3: The consent memorandum must—
a: set out the proposed variation; and
b: state that all persons affected by the final parenting order (other than children) agree to the proposed variation; and
c: be signed by all parties.
4: On the filing of a consent memorandum, the Registrar may make and seal an order varying the final parenting order in terms of the proposed variation set out in the memorandum. Section 57 replaced 31 March 2014 section 16 Care of Children Amendment Act (No 2) 2013 Incidental temporary protection orders Heading inserted 1 July 2019 section 20 Family Violence (Amendments) Act 2018
57A: Power to make incidental temporary protection order
1: This section applies if—
a: an application has been made to the court for any of the following in respect of a child:
i: a guardianship order under section 19 27
ii: a direction under section 46R
iii: a parenting order under section 48
iv: a variation of a parenting order, under section 56
b: no application has been made to the court for, but the court is satisfied that had an application been made to it for the purpose the court would have made, a protection order (whether a temporary protection order or a final protection order) made under the Family Violence Act 2018
i: the child, or a parent or any other person who has the role of providing day-to-day care for, or who may have contact with, the child; and
ii: a party to the application (in paragraph (a)) for the order or direction under this Act.
2: The court may make a temporary protection order under section 79
3: Sections 76 to 78 Section 57A inserted 1 July 2019 section 20 Family Violence (Amendments) Act 2018 Supervised contact Heading replaced 31 March 2014 section 16 Care of Children Amendment Act (No 2) 2013
58: Interpretation
In this section and sections 59 60 approved provider
a: approved—
i: by the chief executive as a community service under section 403 Oranga Tamariki Act 1989
ii: by the Secretary; or
iii: by an officer of the court appointed under section 8(2) Family Court
b: nominated by the court or Registrar for the particular case supervised contact
a: under the supervision of an approved provider; or
b: in the immediate presence of a person approved by the court (for example, a relative, a friend of the family of the child, or any other person whom the court considers suitable). Section 58 replaced 31 March 2014 section 16 Care of Children Amendment Act (No 2) 2013 Section 58 approved provider amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 58 approved provider amended 1 March 2017 section 261 District Court Act 2016
59: Court may order supervised contact
1: This section applies if the court—
a: is making or varying a parenting order determining the time or times when a person may have contact with a child; and
b: is not satisfied that the child will be safe with that person.
2: The court may make an order for supervised contact between the child and that person, and, if it does so, the court must specify in the order whether the supervised contact is to occur—
a: under the supervision of an approved provider; or
b: in the immediate presence of a person approved by the court (for example, a relative, a friend of the family of the child, or any other person whom the court considers suitable). Section 59 replaced 31 March 2014 section 16 Care of Children Amendment Act (No 2) 2013
60: Costs of formal supervised contact
1: This section applies only to supervised contact that is ordered under section 59
2: The number of sessions of the contact that will be funded out of public money must be determined in accordance with regulations made under section 147(2)﻿(a)
3: Fees in respect of the contact—
a: must be determined in accordance with regulations made under section 147(2)﻿(b)
b: are payable out of public money appropriated by Parliament for the purpose. Section 60 replaced 31 March 2014 section 16 Care of Children Amendment Act (No 2) 2013
61: Matters relevant to question in section 60(4)
Section 61 repealed 31 March 2014 section 16 Care of Children Amendment Act (No 2) 2013
61A: Court may make orders to ensure safety of child in other cases
Section 61A repealed 31 March 2014 section 16 Care of Children Amendment Act (No 2) 2013
62: Costs of formal supervised contact
Section 62 repealed 31 March 2014 section 16 Care of Children Amendment Act (No 2) 2013 Making parenting orders work
63: Purpose and overview of sections 64 to 80
Section 63 repealed 31 March 2014 section 17 Care of Children Amendment Act (No 2) 2013
64: Guiding consideration and principles
1: In determining whether to make an order or to issue a warrant or to respond in another way under any of sections 68 to 77 section 4
2:
3: The court may not make orders or issue warrants under any of sections 72 to 77 1968 No 63 s 23(1), (1A) Section 64(2) repealed 31 March 2014 section 18 Care of Children Amendment Act (No 2) 2013
65: Request for counselling
Section 65 repealed 31 March 2014 section 19 Care of Children Amendment Act (No 2) 2013
66: Procedure for request under section 65(1) or (2)
Section 66 repealed 31 March 2014 section 19 Care of Children Amendment Act (No 2) 2013
67: Registrar may decline requests for counselling and recommend instead applications under section 68
Section 67 repealed 31 March 2014 section 19 Care of Children Amendment Act (No 2) 2013
68: Court may make certain orders or respond in other ways to contravention of parenting orders
1: On an application for the purpose by a party to a parenting order, the court may, if satisfied that another party to the order has contravened the order, do any of the following:
a: admonish the party who has contravened the order:
b: vary or discharge the parenting order under section 56
2: The court may (as well as, or instead of, exercising its powers under subsection (1)) consider making an order or issuing a warrant under any of sections 70 to 77
a: the contravention that is the subject of the application under this section is of a serious nature; or
b: the party who has contravened the parenting order has previously contravened that order or another order under this Act.
3: Nothing in this section limits other powers of the court to deal with a contravention of a parenting order.
4: On receiving an application under this section, the Registrar—
a: must appoint a date and time for the hearing of the application and, by notice in writing to the parties to the application, inform them of that date and time:
b: may, if the court directs, request them to attend.
69: Court may require parties to attend
1: On an application for the purpose or on its own initiative, the court may issue a summons requiring a person to attend at a time and place to be specified in the summons if the person fails to comply with—
a:
b: a request under section 68(4)﻿(b)
2: Section 159 1980 No 94 s 17 Section 69 heading amended 31 March 2014 section 20(1) Care of Children Amendment Act (No 2) 2013 Section 69(1)﻿(a) repealed 31 March 2014 section 20(2) Care of Children Amendment Act (No 2) 2013 Section 69(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
70: Ordering party to enter into bond
1: On an application for the purpose or on its own initiative, the court may order a party who has contravened a parenting order to enter into a bond as an assurance that the party will not contravene the parenting order again.
2: Before making an order under subsection (1), the court must consider the extent (if any) to which the party has sufficient means to deposit an amount of money in the court.
3: The bond must specify—
a: the amount of money to be deposited in the court; and
b: the conditions the breach of which may lead to some or all of that money being forfeited to the Crown; and
c: that, if that money is forfeited by a direction under subsection (4), the court may, by an order under section 71(1)
d: a date after which the bond will no longer be required (if the bond does not cease to be required earlier, because the parenting order ceases to have effect earlier).
4: If, after entering into the bond, the party contravenes the parenting order again, the court may, at its discretion and on an application for the purpose, direct that some or all of the bond is forfeited to the Crown, but the court must exercise its discretion by taking into account—
a: the reason the bond was imposed; and
b: the extent to which the conditions of the bond have been met or breached; and
c: any explanation given for the breach of the bond conditions; and
d: all other matters the court considers relevant.
5: Following the earlier of the following dates, the bond is no longer required, and the court must make all reasonable efforts to refund to the party any money not forfeited by a direction of the court under subsection (4):
a: the date on which the parenting order ceases to have effect:
b: the date specified under subsection (3)﻿(d).
6: Nothing in this section prevents the court, on an application for the purpose or on its own initiative, from revoking the order and directing that any money not forfeited by a direction of the court under subsection (4) be refunded to the party.
71: Costs of contravention
1: On an application for the purpose or on its own initiative, the court may order a party to a parenting order ( party B party A
a: that party B contravened the order and had no reasonable excuse for doing so; and
b: that the contravention caused party A to incur the costs; and
c: that the costs party A incurred were reasonable in the circumstances.
2: An order under subsection (1) (the costs order
a: deposited in the court by party B as a bond required by an order under section 70(1)
b: forfeited by a direction under section 70(4)
3: Nothing in this section limits section 121 section 142
72: Warrant to enforce role of providing day-to-day care for child
1: In this section, eligible person
a: through being a guardian (other than a testamentary guardian) whose role of providing day-to-day care for the child has not been removed by a court order; or
b: under a parenting order, some other order of a New Zealand court, or an overseas parenting order registered under section 81
2: On an application for the purpose by an eligible person, the Family Court or the District Court a constable
a: to the eligible person; or
b: to some other person or authority (including a person in or from a prescribed overseas country) named in the warrant on behalf of the eligible person.
3: However, if 2 or more persons have the role of providing day-to-day care for a child, no warrant under this section may authorise—
a: the removal of the child from the care of one of those persons; and
b: the delivery of the child to the care of another of them. 1968 No 63 s 19(1), (5) Section 72(2) amended 1 March 2017 section 261 District Court Act 2016 Section 72(2) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008
73: Warrant to enforce order for contact with child
1: In this section, eligible person section 81
2: On an application for the purpose by an eligible person, the Family Court or the District Court a constable
a: to the eligible person; or
b: to some other person or authority (for example, a person in or from a prescribed overseas country) named in the warrant on behalf of the eligible person. 1968 No 63 s 19(2) Section 73(2) amended 1 March 2017 section 261 District Court Act 2016 Section 73(2) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008
74: Further provisions about warrants
1: The court may issue a warrant under section 72 section 73
2: Neither section 72 section 73
a: to enforce the role of providing day-to-day care for, or an order for contact with, a child; and
b: that was exercisable by a court immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968
3: If the Family Court section 72 section 73 section 83(2) and (3) 1968 No 63 ss 19(3), (6), 19A Section 74(3) amended 1 March 2017 section 261 District Court Act 2016
75: Execution of warrants
1: For the purpose of executing a warrant issued under section 72 section 73 a constable
2: The constable section 72 section 73
a: must have that warrant with him or her; and
b: must produce it on initial entry and, if requested, at any later time; and
c: must identify himself or herself to any person in or on the building, aircraft, ship, vehicle, premises, or place who questions his or her right to enter and search the same or to take possession of the child; and
d: if he or she is a constable a constable
e: if he or she is a social worker, must produce evidence that he or she is a social worker; and
f: if he or she is a person (not being a constable 1968 No 63 s 19B(1), (2) Section 75(1) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 75(2) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 75(2)﻿(d) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 75(2)﻿(f) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008
76: Authority to use faxed copy of warrant
1: An authority (as defined in section 77(1) section 72 73
2: However, no authorisation may be granted under subsection (1) in relation to a warrant unless the authority is satisfied, having regard to the circumstances of the case, that any delay in executing the warrant that may be caused if a faxed copy is not able to be used for that purpose would or might unduly prejudice the purpose for which the warrant was issued.
3: An authority may exercise the power conferred by subsection (1) either on or after issuing the warrant, and either on its own initiative or on an application for the purpose made to it by—
a: a party to the proceedings for the issue of the warrant; or
b: a person who is authorised to execute the warrant.
4: If an authority grants an authorisation under subsection (1) in relation to a warrant, the authority must first write on the front of the warrant, and then sign, a note that states—
a: the fact that a faxed copy of the warrant may be used for the purposes of executing the warrant; and
b: the date and time at which the authorisation expires, which must be the close of the third day after the day on which the authorisation is granted.
5: A faxed copy of a warrant in respect of which an authorisation granted under this section is in force must, for all purposes, be treated as if it were the warrant, and the provisions of this Act (for example, sections 75 79
6: Without limiting any other enactment or rule of law, section 44
7: Subsection (6) is for the avoidance of doubt. 1968 No 63 s 19C Section 76(1) replaced 20 September 2007 section 4(1) Care of Children Amendment Act 2007 Section 76(3) replaced 20 September 2007 section 4(2) Care of Children Amendment Act 2007 Section 76(6) amended 1 October 2008 section 130(1) Policing Act 2008
77: Preventing removal of child from New Zealand
1: In this section and section 76 authority or of the District Court a constable
2: An authority may, on an application for the purpose by any person, exercise the powers stated in subsection (3) if the authority believes on reasonable grounds that a person may
a: defeat the claim of a person who has applied for, or is about to apply for, the role of providing day-to-day care for, or an order for contact with, the child; or
b: prevent any order of any court (including an order registered under section 81
3: In the situation stated in subsection (2), the authority—
a: may issue a warrant directing a constable
b: may, in addition, order that any tickets or travel documents (including the passport) of the child, or of the person believed to be about to take the child out of New Zealand, or of both, be surrendered to the authority for a period and on any conditions the authority thinks fit; and
c: may, whether or not a warrant has been issued under paragraph (a) (either with or without an additional order under paragraph (b)), order that the child not be removed from New Zealand by—
i: any person; or
ii: any person other than a person named in the order.
3A: An order made under subsection (3)﻿(c) may specify that the order is to continue until—
a: the expiry of a specified period; or
b: a further order is made by an authority.
4: Sections 75 79 section 72 section 73
5: A person against whom an order under subsection (3)﻿(b) or (c) is in force may apply to the authority for the discharge of the order, and the authority may, if it thinks fit, discharge the order accordingly.
6: No proceedings for contempt of court may be taken against a person in respect of an act authorised or required by this section or by an order or warrant made or issued under this section. 1968 No 63 s 20(1)–(2), (4) Section 77(1) amended 1 March 2017 section 261 District Court Act 2016 Section 77(1) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 77(2) amended 16 November 2011 section 13(1) Care of Children Amendment Act 2011 Section 77(3)﻿(a) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 77(3)﻿(c) replaced 16 November 2011 section 13(2) Care of Children Amendment Act 2011 Section 77(3A) inserted 16 November 2011 section 13(3) Care of Children Amendment Act 2011
77A: Orders under section 77(3)﻿(c) in respect of children of or over 16 years
1: An order under section 77(3)﻿(c)
2: An order under section 77(3)﻿(c) Section 77A inserted 16 November 2011 section 14 Care of Children Amendment Act 2011
77B: Orders under section 77(3)﻿(c) may be suspended for specified period
1: On an application for the purpose by any person, a High Court Judge, a District Court Judge, or a Family Court Judge may suspend an order made under section 77(3)﻿(c)
2: On an application for the purpose, a Registrar of the High Court, or of the District Court section 77(3)﻿(c)
a: the application is made by a party to the proceedings under section 77 earlier proceedings
b: every other person who was a party to the earlier proceedings consents.
3: A suspension of an order made under section 77(3)﻿(c)
a: for a specified time; and
b: in relation to a specified person. Section 77B inserted 16 November 2011 section 14 Care of Children Amendment Act 2011 Section 77B(2) amended 1 March 2017 section 261 District Court Act 2016 Offences
78: Contravening parenting or guardianship order
1: A person commits an offence who, without reasonable excuse, intentionally—
a: contravenes—
i: a parenting order; or
ii: a guardianship order made under section 40 46R
b: prevents compliance with—
i: a parenting order; or
ii: a guardianship order made under section 40 46R
2: A person who commits an offence under subsection (1) is liable on conviction to—
a: a term of imprisonment not exceeding 3 months; or
b: a fine not exceeding $2,500.
3: Nothing in this section limits the power of a court to punish a person for contempt of court. Section 78 replaced 31 March 2014 section 21 Care of Children Amendment Act (No 2) 2013
79: Resisting execution of warrant
Every person commits an offence and is liable on
a: knowingly resists or obstructs any person executing a warrant under section 72 section 73 section 77
b: knowingly fails or refuses to afford immediate entrance to (all or a part of) any premises to any person executing a warrant under section 72 section 73 section 77 1968 No 63 s 19B(3) Section 79 amended 1 July 2013 section 413 Criminal Procedure Act 2011
80: Taking child from New Zealand
Every person commits an offence and is liable on
a: knowing that proceedings are pending or are about to be commenced under this Act in respect of the child; or
b: knowing that there is in force an order of a court (including an order registered under section 81
c: with intent to prevent an order of a court (including an order registered under section 81 1968 No 63 s 20(3) Section 80 amended 1 July 2013 section 413 Criminal Procedure Act 2011
3: Enforcing orders internationally
Enforcing overseas parenting orders in New Zealand
81: Registration of overseas parenting orders
1: If the following documents are transmitted to the Secretary, he or she must send them to a Registrar of the District Court
a: a certified copy of an overseas parenting order; and
b: a certificate that—
i: is signed by an officer of a court in the overseas country in which the order was made; and
ii: contains a statement that the order is, at the date of the certificate, enforceable in the overseas country; and
c: written information tending to show that any of the following persons is present in New Zealand or is proceeding to, or is about to proceed to, New Zealand:
i: the child who is the subject of the order; or
ii: a parent of that child; or
iii: a person who, under the overseas parenting order, has the role of providing day-to-day care for, or may have contact with, that child.
2: The Registrar of the District Court must register the order by filing a certified copy of the order in the court.
3: A Registrar of the District Court 1968 No 63 s 22A Section 81(1) amended 1 March 2017 section 261 District Court Act 2016 Section 81(3) amended 1 March 2017 section 261 District Court Act 2016
82: Effect of registration
1: If an overseas parenting order is registered in a court under section 81
2: This section is subject to sections 83 85(1) 1968 No 63 s 22B
83: Exercise of jurisdiction in respect of child subject to registered overseas parenting order
1: If an overseas parenting order is registered in New Zealand under section 81 sections 72 to 76
a: every person having the role of providing day-to-day care for, or who may have contact with, the child, under the overseas parenting order consents to the exercise of jurisdiction by the court in the proceedings; or
b: the court is satisfied that there are substantial grounds for believing that the welfare and best interests of the child will be adversely affected if the court does not exercise jurisdiction in the proceedings.
2: If a court in New Zealand exercises jurisdiction in proceedings relating to the role of providing day-to-day care for, or relating to having contact with, a child who is the subject of an overseas parenting order that is registered in New Zealand under section 81
a: that the child’s welfare and best interests are likely to be adversely affected if the order is not made; or
b: that there has been such a change in the child’s circumstances that the order ought to be made.
3: If a court in New Zealand exercises jurisdiction in proceedings relating to the role of providing day-to-day care for, or relating to having contact with, a child, and does so without notice of the existence of an overseas parenting order relating to that child and that is registered in New Zealand under section 81 1968 No 63 s 22C
84: Variation or discharge of registered overseas parenting order
1: If a court exercising jurisdiction under sections 56 82
a: must forward to the court, or to the appropriate authority, in the prescribed overseas country—
i: 3 certified copies of the order varying or discharging the overseas parenting order and the reasons for the variation or discharge; and
ii: any further material the court directs; and
b: unless he or she is the Registrar of the court in which the overseas custody order is registered, must forward to the Registrar of that court a copy of the order varying or discharging the overseas parenting order.
2: The Registrar of the court in which the overseas custody order is registered must, on receiving notice of the discharge or variation of that order, note the court’s records accordingly, and, if the overseas parenting order is discharged, must cancel the registration of that order. 1968 No 63 s 22D
85: Registered overseas parenting orders not to be enforced in certain circumstances
1: A court must not enforce an overseas parenting order under section 72 section 73 sections 56 82
a: was not, at the time of its registration in New Zealand, enforceable in the country in which it was made; or
b: has, since its registration in New Zealand, ceased to be enforceable in the country in which it was made.
2: The Registrar of a court in which an overseas parenting order is registered must cancel the registration of the order and inform the court in the prescribed overseas country of the cancellation if he or she is satisfied that the order is not enforceable in the prescribed overseas country in which it was made, and is satisfied of those matters by—
a: documentary evidence the Registrar has received; or
b: the refusal of a New Zealand court, on the grounds stated in subsection (1), to enforce the order under section 72 section 73 sections 56 82
3: For the purposes of subsection (1), an overseas parenting order is not unenforceable in the country in which it was made just because the child to whom the order relates or any other person affected by the order is no longer in that country. 1968 No 63 s 22E
86: Evidence of orders made in overseas countries
Nothing in section 81 1968 No 63 s 22F
87: Costs of returning child: order for payment when warrant issued under section 72
1: This section applies to a court if, for the purpose of enforcing the role, conferred by an overseas parenting order that is registered in New Zealand, of providing day-to-day care for a child, the court issues, or has issued, in relation to any child, a warrant under section 72
2: The court may, if it thinks just, make, against any person who has knowingly abducted the child, or who is deliberately holding the child, in contravention of the overseas parenting order, an order for the payment of some or all of the costs of returning the child to the person who, under the overseas parenting order, has the role of providing day-to-day care for the child.
3: The costs referred to in subsection (2) may include the costs and travelling expenses of any necessary escort. 1968 No 63 s 22G
88: Evidence
If an application under either sections 56 81 section 87 the District Court
a: the evidence of a person beyond New Zealand may be taken in accordance with the rules of the High Court covering the examination of witnesses beyond New Zealand; and
b: the High Court Rules 2016 1968 No 63 s 22H Section 88 amended 1 March 2017 section 261 District Court Act 2016 Section 88(b) amended 18 October 2016 section 183(c) Senior Courts Act 2016
89: Proof of documents
1: For the purposes of sections 72 to 76 sections 81 to 88
a: a document purporting to be signed by a Judge, District Court Judge, or officer of a court in a prescribed overseas country must, unless the contrary is proved, be treated as having been so signed without proof of the signature, or judicial or official character, of the person appearing to have signed it; and
b: the officer of a court by whom a document purports to be signed must, unless the contrary is proved, be treated as having been the proper officer of the court to sign the document.
2: A document purporting to be signed, certified, or verified by a person in subsection (1) must be admitted in evidence in proceedings for the purposes of sections 72 to 76 sections 81 to 88 1968 No 63 s 22I
90: Depositions to be evidence
Depositions taken for the purposes of any of sections 72 to 76 sections 81 to 87 sections 72 to 76 sections 81 to 87 1968 No 63 s 22J
91: Prescribed overseas countries
1: The Governor-General may, by Order in Council, declare a country outside New Zealand to be a prescribed overseas country for the purposes of this Act.
2: An order under subsection (1)—
a: may specify the courts of the overseas country in relation to which the order is to have effect or otherwise modify the application of that order to that country; and
b: may be varied or amended, revoked, or revoked and replaced by a later order of that kind.
3: An order under this section is secondary legislation ( see Part 3 1968 No 63 s 22K The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 91(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Enforcing New Zealand orders overseas
92: Enforcement of New Zealand orders overseas
1: Subsection (2) applies to an order (not being an interim order or an order made without notice)—
a: made by a court in New Zealand and about the role of providing day-to-day care for, or about contact with, a child; and
b: that may be enforced in a particular prescribed overseas country under provisions corresponding to sections 81 82
2: The Registrar of the court in which the order was made, or last varied, or filed in accordance with section 127
a: that Registrar is requested to do so in accordance with section 93
b: the request is made in writing by, or on behalf of, a person who, under the order, has the role of providing day-to-day care for, or may have contact with, the child.
3: The information referred to in subsection (2) is—
a: 3 certified copies of the order; and
b: the information and material (if any) that the Registrar possesses for ascertaining the identity and whereabouts of the child and any other person who is subject to the order; and
c: a statement that the order is enforceable in New Zealand; and
d: a request in writing that the order be made enforceable in that prescribed overseas country; and
e: any other documents and information that the Registrar believes are necessary for securing the enforcement of the order in that prescribed overseas country.
4: If a court in a prescribed overseas country has made an order in proceedings about the role of providing day-to-day care for, or about having contact with, a child, being proceedings to which a provision corresponding to section 83(1) and (2)
a: may treat the order as if it were an overseas parenting order registered in New Zealand; and
b: may exercise jurisdiction accordingly in respect of the order.
5: If a court exercises jurisdiction under subsection (4), the Registrar of the court must promptly forward to the court in the prescribed overseas country—
a: 3 certified copies of the further order of the court and the reasons for the order; and
b: any further material the court directs.
6: If a person has the role of providing day-to-day care for, or may have contact with, a child, under an order made by a court in New Zealand, nothing in this section prevents that person from—
a: obtaining certified copies of the order; or
b: applying to a court or other appropriate authority in an overseas country (whether or not it is a prescribed overseas country) for enforcement, or registration and enforcement, of the order in that country.
7: Registration in an overseas country of an order made in New Zealand about the role of providing day-to-day care for, or about contact with, a child, does not prevent the expiry of the order or its variation or discharge under this Act. 1968 No 63 s 22L
93: Restrictions on right to make request under section 92
1: A request may not be made to the Registrar under section 92
a: in the case of a request made by, or on behalf of, a person who, under the order, has the role of providing day-to-day care for the child, the person by whom or on whose behalf the request is made—
i: believes, on reasonable grounds, that another person will apply, in a prescribed overseas country, for the role of providing day-to-day care for the child; or
ii: is unable to have the order enforced in New Zealand because the child was removed from New Zealand, without the consent of that person, during the course of the proceedings in which the order was made:
b: in the case of a request made by, or on behalf of, a person who, under the order, may have contact with the child, the person by whom or on whose behalf the request is made believes, on reasonable grounds, that it is necessary to register the order in a prescribed overseas country in order to ensure that the order may be enforced in that country.
2: If a request is made to the Registrar under section 92
a: the Registrar may require the person by whom or on whose behalf the request is made to supply to the Registrar any evidence in support of that request that may be necessary to enable the Registrar to determine whether or not the requirements of this section, as they relate to the making of that request, are met; and
b: the Registrar may refuse to take any further action on that request until that evidence is so supplied. 1968 No 63 s 22LA
4: International child abduction
Preliminary provisions
94: Purpose of this subpart
The purpose of this subpart is to—
a: implement in New Zealand law the Hague Convention on the Civil Aspects of International Child Abduction; and
b: provide for related matters; and
c: replace the Guardianship Amendment Act 1991
95: Interpretation
In this subpart, unless the context otherwise requires,— applicant section 102 section 103 section 105 section 112 section 113 Authority section 100(1) Central Authority child Contracting State section 98 Convention Schedule 1 habitual residence law
a: in relation to a Contracting State that in matters relating to the custody of children has 2 or more systems of law applicable in different territorial units, the law of the territorial unit of that State in which the relevant child habitually resides:
b: in relation to a Contracting State that in matters relating to the custody of children has 2 or more systems of law applicable to different categories of persons, the legal system specified by the law of that State person removal rights of access
a: the right to visit a child (for example, under an order for contact made under this Act); and
b: the right to take a child for a limited period of time to a place other than the child’s habitual residence (for example, under an order for contact made under this Act) rights of custody section 97 United Nations International Covenants on Human Rights
a: the International Covenant on Civil and Political Rights:
b: the International Covenant on Economic, Social, and Cultural Rights. 1991 No 19 s 2
96: Application of this subpart
This subpart, in so far as it applies to the removal of children, applies only to removals occurring after the commencement, on 1 August 1991, of the Guardianship Amendment Act 1991 1991 No 19 s 3
97: Rights of custody defined
For the purposes of this subpart, rights of custody
a: rights relating to the care of the person of the child (for example, the role of providing day-to-day care for the child); and
b: in particular, the right to determine the child’s place of residence. 1991 No 19 s 4
98: Contracting States
Subject to Articles 39 and 40 of the Convention, for the purposes of this subpart, the Contracting States (other than New Zealand) are those countries in respect of which the Convention is for the time being in force for New Zealand. 1991 No 19 s 5
99: Certificates as to Contracting States
1: This section applies to a certificate signed by the Secretary of Foreign Affairs and Trade and stating—
a: that a specified country is or is not a country in respect of which the Convention is in force as between that country and New Zealand; and
b: where applicable, that there is in effect, in respect of any specified provision of the Convention, a reservation made by any Contracting State under Article 42 of the Convention.
2: The certificate must, for all purposes, be treated as conclusive evidence of the matters stated in it unless the contrary is proved by the production of another certificate issued—
a: for the purposes of this section; but
b: after the certificate was issued. 1991 No 19 s 6
100: Central Authority for New Zealand
1: The Secretary is the Central Authority for New Zealand, and for that purpose the Secretary has all the duties, may exercise all the powers, and must perform all the functions, that a Central Authority has under the Convention.
2: The Secretary must not be made subject to any order to pay costs in relation to the exercise or performance, by the Secretary, of any of the Secretary’s duties, powers, or functions as the Authority. 1991 No 19 s 7
101: Courts having jurisdiction to entertain applications under Convention
1: The duties, powers, and functions that, under the Convention, are conferred or imposed on the judicial authorities of a Contracting State must, in New Zealand, be exercised or performed by the Family Court or the District Court
2: The Family Court and the District Court have the jurisdiction, and have
3: Subsection (2) is subject to this subpart and to any rules made under section 146(4) 1991 No 19 s 8 Section 101(1) amended 1 March 2017 section 261 District Court Act 2016 Section 101(2) amended 1 March 2017 section 261 District Court Act 2016 Application for return of child
102: Child abducted from New Zealand
1: A person may apply in writing to the Authority to have his or her claim transmitted to a Contracting State other than New Zealand if the person claims—
a: that a child has been removed from New Zealand to that other Contracting State; and
b: that the child was removed from New Zealand to that other Contracting State in breach of that person’s rights of custody in respect of the child; and
c: that at the time of the removal those rights of custody were actually being exercised by that person, or would have been so exercised but for the removal; and
d: that the child was habitually resident in New Zealand immediately before the removal.
2: Every application under subsection (1) must be in a form approved by the Secretary.
3: If the Authority is satisfied that an application made under subsection (1) is in accordance with the requirements of the Convention, the Authority must take on behalf of the applicant any action required to be taken by the Authority under the Convention. 1991 No 19 s 9 Section 102(2) replaced 31 March 2014 section 22 Care of Children Amendment Act (No 2) 2013
103: Child abducted to New Zealand
1: The Authority must take action under the Convention to secure the prompt return of the child to a Contracting State other than New Zealand if the Authority receives, in respect of a child, an application claiming—
a: that the child is present in New Zealand; and
b: that the child was removed from that other Contracting State in breach of the applicant’s rights of custody in respect of the child; and
c: that at the time of the removal those rights of custody were actually being exercised by the applicant, or would have been so exercised but for the removal; and
d: that the child was habitually resident in that other Contracting State immediately before the removal.
2: Subsection (1) is subject to sections 104 123
3: In particular, the Authority must take or cause to be taken all appropriate measures—
a: to discover where the child is; and
b: to ensure the safety of the child and prevent prejudice to any interested party; and
c: to secure the voluntary return of the child to that other Contracting State, or to bring about an amicable resolution of the issues; and
d: to facilitate the making of an application under section 105 1991 No 19 s 10
104: Authority may request further information
1: The Authority may return the application concerned to the applicant or the Central Authority by which it was transmitted, and may request that the information or documents concerned be made available, if—
a: an application to which section 103(1)
b: the application—
i: does not contain the information specified in subsection (2); or
ii: is not accompanied or supplemented by the documents referred to in subsection (3); and
c: the Authority considers that the fact that the application does not contain that information or is not accompanied or supplemented by those documents is likely to seriously impair the ability of the Authority to carry out its duties in respect of the application.
2: The information referred to in subsection (1)﻿(b)﻿(i) is—
a: information concerning the identity of the applicant, the child, and the person alleged to have removed the child:
b: the date of birth of the child:
c: the grounds on which the applicant’s claim for the return of the child is based:
d: information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.
3: The documents referred to in subsection (1)﻿(b)﻿(ii) are—
a: an authenticated copy of any decision, agreement, or other document, if it is relevant to the application:
b: a certificate or affidavit concerning the relevant law of the Contracting State of the child’s habitual residence, being a certificate or affidavit from the Central Authority of that State, or from any other competent authority of that State, or from any qualified person. 1991 No 19 s 11
105: Application to court for return of child abducted to New Zealand
1: An application for an order for the return of a child may be made to a court having jurisdiction under this subpart by, or on behalf of, a person who claims—
a: that the child is present in New Zealand; and
b: that the child was removed from another Contracting State in breach of that person’s rights of custody in respect of the child; and
c: that at the time of that removal those rights of custody were actually being exercised by that person, or would have been so exercised but for the removal; and
d: that the child was habitually resident in that other Contracting State immediately before the removal.
2: Subject to section 106
a: an application under subsection (1) is made to the court; and
b: the court is satisfied that the grounds of the application are made out.
3: A court hearing an application made under subsection (1) in relation to the removal of a child from a Contracting State to New Zealand may request the applicant to obtain an order from a court of that State, or a decision of a competent authority of that State, declaring that the removal was wrongful within the meaning of Article 3 of the Convention as it applies in that State, and may adjourn the proceedings for that purpose.
4: A court may dismiss an application made to it under subsection (1) in respect of a child or adjourn the proceedings if the court—
a: is not satisfied that the child is in New Zealand; or
b: is satisfied that the child has been taken out of New Zealand to another country. 1991 No 19 s 12
106: Grounds for refusal of order for return of child
1: If an application under section 105(1) 105(2)
a: that the application was made more than 1 year after the removal of the child, and the child is now settled in his or her new environment; or
b: that the person by whom or on whose behalf the application is made—
i: was not actually exercising custody rights in respect of the child at the time of the removal, unless that person establishes to the satisfaction of the court that those custody rights would have been exercised if the child had not been removed; or
ii: consented to, or later acquiesced in, the removal; or
c: that there is a grave risk that the child’s return—
i: would expose the child to physical or psychological harm; or
ii: would otherwise place the child in an intolerable situation; or
d: that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate , in addition to taking them into account in accordance with section 6(2)﻿(b)
e: that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.
2: In determining whether subsection (1)﻿(e) applies in respect of an application made under section 105(1)
a: whether the return of the child would be inconsistent with any rights that the child, or any other person, has under the law of New Zealand relating to refugees or protected persons
b: whether the return of the child would be likely to result in discrimination against the child or any other person on any of the grounds on which discrimination is not permitted by the United Nations International Covenants on Human Rights.
3: On hearing an application made under section 105(1) 1991 No 19 s 13 Section 106(1) amended 20 September 2007 section 5(1) Care of Children Amendment Act 2007 Section 106(1)﻿(d) amended 20 September 2007 section 5(2) Care of Children Amendment Act 2007 Section 106(2)﻿(a) amended 29 November 2010 section 406(1) Immigration Act 2009
107: Applications to be dealt with speedily
1: A court to which an application under section 105(1)
2: Subsection (3) applies to an application made to a court under section 105(1)
3: The Authority may, and must if requested by the applicant or the Central Authority of the Contracting State from which the child was removed, request the Registrar of the court to supply a statement of the reasons why the application has not been determined within that period, and the Registrar must, as soon as practicable, supply the statement to the Authority.
4: The Authority must send a copy of the statement to the applicant or, as the case may require, the Central Authority of the relevant Contracting State. 1991 No 19 s 14
108: Interim powers
A court to which an application under section 105(1) 1991 No 19 s 15
109: No order or decision about role of providing day-to-day care for child to be made until application determined
1: A court to which an application under section 105(1)
a: must not, while those proceedings are pending, make any order or decision about the role of providing day-to-day care for that child in any other proceedings that are before that court (whether those proceedings were commenced before, after, or at the same time as, the application was made); and
b: may adjourn those other proceedings pending the determination of the application.
2: Subsection (1)﻿(a) does not limit or affect the court’s power under section 108 1991 No 19 s 16
110: Contact with, and role of providing day-to-day care for, child, if application dismissed
If a court to which an application under section 105(1) 1991 No 19 s 17
111: Request for declaration that child wrongfully removed
A court that has jurisdiction under this subpart may, if requested by the Central Authority of another Contracting State, make an order declaring that the removal of a child from New Zealand to that Contracting State was wrongful within the meaning of Article 3 of the Convention. 1991 No 19 s 18 Application for access to child
112: Child outside New Zealand
1: A person may apply in writing to the Authority to have his or her claim transmitted to a Contracting State other than New Zealand if the person claims—
a: to have rights of access in respect of a child; and
b: that the child is habitually resident in a Contracting State; and
c: that the child is present in the Contracting State other than New Zealand.
2: Every application under subsection (1) must be in a form approved by the Secretary.
3: If the Authority is satisfied that an application made under subsection (1) is in accordance with the requirements of the Convention, the Authority must take on behalf of the applicant any action required to be taken by the Authority under the Convention. 1991 No 19 s 19 Section 112(2) replaced 31 March 2014 section 23 Care of Children Amendment Act (No 2) 2013
113: Child in New Zealand
The Authority must make any arrangements that may be appropriate to organise or secure the effective exercise of the applicant’s rights of access if the Authority receives, in respect of a child, an application in which the applicant claims—
a: to have rights of access in respect of a child; and
b: that the child is habitually resident in New Zealand; and
c: that the child is present in New Zealand. 1991 No 19 s 20 Miscellaneous provisions
114: Translation to accompany application
Every application under section 102 section 112
a: into the official language, or one of the official languages, of the Contracting State to which the application is intended to be sent; or
b: if that Contracting State has made a reservation under Article 42 of the Convention objecting to the use of English, into French. 1991 No 19 s 21
115: Evidentiary provisions
1: In determining whether, under the law of a Contracting State, an applicant has rights of custody in respect of a child, a court may, despite anything in sections 37 to 41
a: the law of that Contracting State:
b: any decision or determination of a judicial or administrative authority of that Contracting State, whether or not formally recognised in that State:
c: any agreement having legal effect under the law of that Contracting State.
2: For the purposes of subsection (1), a decision or determination of a judicial or administrative authority outside New Zealand may be proved by a duly authenticated copy of the decision or determination; and any document purporting to be such a copy must be treated as a true copy unless the contrary is shown.
3: For the purposes of subsection (2), a copy is duly authenticated if it purports to bear the seal, or purports to be signed by a Judge or officer, of the authority in question. 1991 No 19 s 22
116: Lawyer to act for applicant
1: This section applies to an applicant who—
a: makes an application under section 102 section 103 section 105 section 112 section 113
b: has not appointed a lawyer to act for the applicant for the purposes of the application.
2: The Authority must, if the circumstances so require, appoint a lawyer to act for the applicant for the purposes of the application, including (in the case of an application under section 103 section 105
3: Sections 131 137(1)﻿(c) sections 9B(4) 16D section 7 1991 No 19 s 23
117: Preventing concealment of whereabouts of child
1: A District Court Judge or Family Court Judge may issue a warrant of the kind referred to in subsection (2) if—
a: an application under section 103
b: a person applies in writing and on oath to the Judge for a warrant of the kind referred to in subsection (2); and
c: the Judge is satisfied that there are reasonable grounds for believing that a person will attempt to conceal the whereabouts of the child with intent to, or in circumstances where the concealment would be likely to, defeat the claim of the applicant.
2: The warrant referred to in subsection (1) is a warrant that authorises a constable
3: A Registrar of the District Court a constable
4: Sections 75 76 79 section 72 1991 No 19 ss 24, 26A Section 117(2) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 117(3) amended 1 March 2017 section 261 District Court Act 2016 Section 117(3) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008
118: Preventing removal of child to defeat application
1: This section applies to a High Court Judge or District Court Judge or Family Court Judge who is satisfied that there are reasonable grounds for believing that a person is about to take a child out of New Zealand with intent to, or in circumstances where the taking of the child out of New Zealand would be likely to,—
a: defeat the claim of a person who has made, or is about to make, an application under section 103 section 105 section 113
b: prevent an order under section 105(2)
2: A Judge to whom this section applies—
a: may exercise, in respect of that child, the power referred to in section 77(3)﻿(a)
b: may exercise, in respect of that child, or the person believed to be about to take the child out of New Zealand, or both, the power referred to in section 77(3)﻿(b)
c: may, whether or not the power referred to in paragraph (a) has been exercised (with or without the exercise of the power referred to in paragraph (b)), make an order of the kind referred to in section 77(3)﻿(c)
3: If a power referred to in subsection (2)﻿(a) or (b) or (c) is exercised, sections 77(4) and (5) 77A 77B apply
4: A Registrar of the High Court or of the District Court a constable 1991 No 19 s 25 Section 118(3) amended 16 November 2011 section 15(a) Care of Children Amendment Act 2011 Section 118(3) amended 16 November 2011 section 15(b) Care of Children Amendment Act 2011 Section 118(4) amended 1 March 2017 section 261 District Court Act 2016 Section 118(4) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008
119: Enforcing order for return of child
1: If, in proceedings under section 105 the Family Court or the District Court
2: The warrant referred to in subsection (1) is a warrant that authorises any constable
3: The powers conferred on a court by subsection (1) may, if the court thinks fit, be exercised on the making of an order under section 105(2)
4: Sections 75 76 79 section 72 1991 No 19 ss 26, 26A Section 119(1) amended 1 March 2017 section 261 District Court Act 2016 Section 119(2) amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008
120: Security for costs, etc
1: A person who makes an application under section 102 section 103 section 105 section 112 section 113
2: Subsection (1) is subject to section 131(4) section 116(3) 1991 No 19 s 27
121: Costs of returning child: order for payment or refund when order under section 105(2) applied for or made
1: A court that makes an order under section 105(2)
2: If a court makes an order under section 105(2)
a: the court may, on an application by the Authority, order the person who removed the child to New Zealand to refund to the Crown any amount the court specifies in respect of the costs so paid by the Crown; and
b: the amount ordered to be refunded is a debt due to the Crown by that person, and is recoverable accordingly in a court of competent jurisdiction.
3: Subsection (4) applies to the District Court
a: an application is made under section 103
b: the child is returned voluntarily; and
c: that return is due, in whole or in part, to the intervention of the Authority; and
d: any costs of (or incidental to) returning the child (for example, the cost and travelling expenses of any necessary escort) are paid by the Crown or by any other person (other than the person who removed the child to New Zealand).
4: In the situation specified in subsection (3),—
a: the District Court may, on an application by the Authority (in a case where a refund of the costs is sought on behalf of the Crown), or (in any other case) by that other person, order the person who removed the child to New Zealand to refund to the Crown or, as the case may be, to that other person any amount the court specifies in respect of the costs so paid by the Crown or that other person; and
b: the amount ordered to be refunded is a debt due to the Crown or, as the case may be, that other person, by the person who removed the child to New Zealand, and is recoverable accordingly in a court of competent jurisdiction. 1991 No 19 s 28(1)–(3) Section 121(3) amended 1 March 2017 section 261 District Court Act 2016
122: Order under section 121 may be lodged in High Court
1: A copy of an order made under section 121
2: On being so lodged, the order must be treated, from the date on which it is lodged, as an order of the High Court.
3: In particular, the order is of the same force and effect for the purposes of execution, and carries interest on the amount payable under it in the same way, and is subject to the same control over its execution by the High Court, as if it were an order originally made in the High Court and entered on the date on which it is so lodged.
4: If, on an application for the purpose, it thinks fit to do so, the High Court may, at any time, set aside the lodging of an order under this section on any terms it thinks just. 1991 No 19 s 28(4), (5)
122A: Discharge of order under section 105 for return of child
1: This section applies where a court makes an order under section 105(2) return order
2: A party to the proceedings under section 105 return proceedings
3: On an application under subsection (2), the court may discharge the return order if—
a: the application is made not earlier than 1 year after the return order was made, or any appeal in relation to the return order was determined, and the court is satisfied that—
i: the child is now settled in his or her new environment in New Zealand; and
ii: having regard to all the circumstances of the case, the discharge of the return order is warranted; or
b: every other person who was a party to the return proceedings consents. Section 122A inserted 16 November 2011 section 16 Care of Children Amendment Act 2011
123: Unfounded applications
1: Nothing in this subpart requires the Authority to take any action in respect of an application if it is manifest—
a: that the requirements of the provisions of this subpart that are applicable to the application have not been fulfilled or complied with; or
b: that the application is otherwise not well founded.
2: If, under this section, the Authority refuses to take any action in respect of an application, the Authority must promptly inform the applicant or, as the case may require, the Central Authority through which the application was transmitted of the grounds for the refusal.
3: If, under this section, the Authority refuses to take any action in respect of an application, a person aggrieved by that refusal may appeal to the District Court or the Family Court
4: On an appeal under subsection (3), the court may—
a: make any order the court considers just; or
b: refer the matter back to the Authority with directions to reconsider the whole or a specified part of the matter.
5: The court’s decision on the appeal is final. 1991 No 19 s 29 Section 123(3) amended 1 March 2017 section 261 District Court Act 2016
124: Other provisions not affected
Nothing in this subpart prevents a court, at any time, from making an order for the return of a child to a Contracting State otherwise than under the provisions of this subpart. 1991 No 19 s 30
3: Jurisdictional, procedural, miscellaneous, and saving and transitional provisions
Jurisdictional provisions
125: Jurisdiction of courts
1: Proceedings under this Act must be heard and determined in the Family Court
a: the proceedings are criminal proceedings, in which case the Family Court does not have
b: under any of the following provisions, the proceedings may or must be heard and determined in a court other than the Family Court
i: subsection (2) or subsection (4):
ii: sections 27 30 35 72 73 76 77
iii: subpart 4
2: The Family Court
a: if an order of the High Court about the guardianship of, or about the role of providing day-to-day care for, or about contact with, the child (other than an order under section 46R the Family Court section 127
b: if the child is under the guardianship of the High Court.
3: Despite subsection (2), the Family Court
a: an application for an interim order about the role of providing day-to-day care for, or about contact with, the child; or
b: an application under section 72 section 73 section 105
4: If a Family Court Judge (or, in proceedings under subpart 4 before the District Court
5: On a reference of that kind, the High Court has the same power to adjudicate on the proceedings or question as the Family Court (or, as the case may require, the District Court) had.
6: Nothing in this section limits the power of the Family Court 1968 No 63 s 4 Section 125(1) amended 1 March 2017 section 261 District Court Act 2016 Section 125(1)﻿(a) amended 1 March 2017 section 261 District Court Act 2016 Section 125(1)﻿(b) amended 1 March 2017 section 261 District Court Act 2016 Section 125(2) amended 1 March 2017 section 261 District Court Act 2016 Section 125(2)﻿(a) amended 1 March 2017 section 261 District Court Act 2016 Section 125(2)﻿(a) amended 31 March 2014 section 24 Care of Children Amendment Act (No 2) 2013 Section 125(3) amended 1 March 2017 section 261 District Court Act 2016 Section 125(4) amended 1 March 2017 section 261 District Court Act 2016 Section 125(6) amended 1 March 2017 section 261 District Court Act 2016
126: Personal jurisdiction
1: The court has jurisdiction under this Act in any of the following cases:
a: if a question of guardianship of a child, or of the role of providing day-to-day care for a child, or of contact with a child, arises as an ancillary matter in any proceedings in which the court has jurisdiction; or
b: if the child who is the subject of the application or order is, when the application is made, present in New Zealand; or
c: if the child, a person against whom an order is sought, or the applicant, is, when the application is made, domiciled or resident in New Zealand.
2: Despite subsection (1), the court may decline to make an order under this Act if—
a: neither the person against whom it is sought nor the child is resident in New Zealand; and
b: the court is of the opinion that no useful purpose would be served by making an order or that in the circumstances the making of an order would be undesirable.
3: Nothing in this section applies to an appointment (of an eligible spouse or partner of a parent section 23 1968 No 63 s 5 Section 126(3) amended 1 July 2005 section 3 Care of Children Amendment Act 2005
127: Removal of High Court orders to Family Court
1: A party to proceedings in the High Court in which an order has been made about the guardianship of a child, or about the role of providing day-to-day care for a child, or about contact with a child, whether that order was made before or after the commencement of this Act, may apply to the Registrar of the High Court at the place where the order was made to have a copy of the order filed in the Family Court
2: The party must forward with the application—
a: a copy of the order and of any order varying or otherwise affecting it; and
b: the fees prescribed for sealing copies of orders.
3: On receiving the application, the Registrar must—
a: transmit to the Registrar of the office of the Family Court
b: record on the original order a note to the effect that the copy has been so transmitted.
4: On receiving the copy of an order transmitted under subsection (3), the Registrar of the Family Court must file it.
5: If an order is removed to the Family Court a Registrar of the Family Court 1968 No 63 s 26 Section 127(1) amended 1 March 2017 section 261 District Court Act 2016 Section 127(3)﻿(a) amended 1 March 2017 section 261 District Court Act 2016 Section 127(5) amended 1 March 2017 section 261 District Court Act 2016 Procedural provisions
128: Evidence
Section 128 repealed 31 March 2014 section 17A(b) Family Courts Act 1980
129: Court’s power to call witnesses
1: In proceedings before it under this Act (other than criminal proceedings), a court may, on its own initiative, call as a witness a person whose evidence may in its opinion assist the court.
2: The power given by subsection (1) includes power to call as a witness a party to the proceedings or a spouse or civil union partner
3: A witness called by the court under this section has the same privilege to refuse to answer any question as the witness would have if the witness had been called by a party to the proceedings.
4: A witness called by the court under this section—
a: may be examined and re-examined by the court, or by any counsel assisting the court; and
b: may be cross-examined by, or on behalf of, a party to the proceedings or by a lawyer appointed to act for a child who is the subject of the proceedings.
5: Sections 159 161 to 165
6: The expenses of a witness called by the court under this section, in accordance with the prescribed scale of witnesses’ expenses, are in the first instance payable out of public money appropriated by Parliament for the purpose. 1968 No 63 s 28A Section 129(2) amended 1 July 2005 section 3 Care of Children Amendment Act 2005 Section 129(5) amended 1 July 2013 section 413 Criminal Procedure Act 2011
130: Appointment of lawyer to assist court
In any proceedings under this Act (other than criminal proceedings), a court may—
a: appoint a lawyer to assist the court; or
b: direct the Registrar of the court to appoint a lawyer to assist the court. Section 130 replaced 31 March 2014 section 25 Care of Children Amendment Act (No 2) 2013
131: Fees and expenses of lawyer appointed under section 7 or 130
1: The fees and expenses of a lawyer appointed under section 7 130
a: be determined in accordance with regulations made under section 16D Family Court a Registrar
b: be paid in accordance with that determination out of public money appropriated by Parliament for the purpose.
2: An invoice for fees and expenses submitted for payment by a lawyer appointed under section 7 130
3: A lawyer who is dissatisfied with the decision of the Registrar as to the amount of the invoice may, within 14 days after the date of the decision, apply to a Family Court Judge to review the decision, and the Judge may on the application make any order varying or confirming the decision that the Judge considers fair and reasonable.
4: Where in any proceedings a lawyer has been appointed under section 7 130 section 135A
5: However, no order under section 135A
a: in any proceedings commenced by an application under section 46A 105 section 111
b: against—
i: the Crown, whether acting through the department for the time being responsible for the administration of the Oranga Tamariki Act 1989
ii: a person in whose custody the child concerned has been placed pursuant to an order made under the Oranga Tamariki Act 1989
c: in respect of an appointment under section 130 Section 131 replaced 31 March 2014 section 26 Care of Children Amendment Act (No 2) 2013 Section 131(1)﻿(a) amended 8 September 2018 section 20(1) Statutes Amendment Act 2018 Section 131(1)﻿(a) amended 1 March 2017 section 261 District Court Act 2016 Section 131(2) replaced 8 September 2018 section 20(2) Statutes Amendment Act 2018 Section 131(5)﻿(a) amended 14 August 2018 section 22 Minors (Court Consent to Relationships) Legislation Act 2018 Section 131(5)﻿(b)﻿(i) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 131(5)﻿(b)﻿(ii) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017
131A: Advice from chief executive or social worker
1: For the purpose of expediting an application for a guardianship order or parenting order, a Registrar, on his or her own initiative, may—
a: refer the application to the chief executive; and
b: request the chief executive to provide brief written advice on the nature and extent of any involvement that the department has had with the parties.
2: On receipt of a request for advice made under subsection (1), the chief executive or a social worker must provide the advice.
3: The Registrar must refer advice received under subsection (2) to the Family Court Judge who is considering the application. Section 131A inserted 31 March 2014 section 27 Care of Children Amendment Act (No 2) 2013
132: Reports from chief executive or social worker
1: A copy of an application for guardianship or a parenting order (other than an interim parenting order) must be supplied to the chief executive if the court so directs.
2: The chief executive or a social worker must report on the application, and may appear on the application personally or by a lawyer. 1968 No 63 s 29(1), (2)
133: Reports from other persons
Definitions
1: In this section,— application
a: means—
i: an application for guardianship; or
ii: an application for a parenting order; or
iia: an application under section 46A
iii: an application under section 105(1)
b: does not include an application for an interim order about the role of providing day-to-day care for a child approval cultural report materials
a: the psychological report; and
b: the report writer's notes; and
c: other materials the report writer used in preparing the psychological report medical report psychiatric report psychological report
a: how current arrangements for the child’s care are working for the child:
b: the child’s relationship with each party, including, if appropriate, the child's attachment to each party:
c: the child's relationship with other significant persons in the child's life:
d: the effect or likely effect on the child of each party's parenting skills:
e: the effect or likely effect on the child of the parties' ability or otherwise to co-operate in the parenting of the child:
f: the advantages and disadvantages for the child of the options for the care of the child:
g: any matter that the court specifies under subsection (5)﻿(b)﻿(ii) report writer
a: the person requested under subsection (2) to prepare a report:
b: the psychologist requested under subsection (5) to prepare a report second opinion
a: a critique of a psychological report; and
b: a report covering the same matters as those covered by a psychological report. Court's power to obtain cultural reports, medical reports, or psychiatric reports
1A: In proceedings relating to an application under section 46A
1B: In proceedings relating to any other application, the court may obtain any 1 or more of the following:
a: a cultural report:
b: a medical report:
c: a psychiatric report.
2: To obtain a written cultural report, medical report, or psychiatric report, the court may—
a: request a person whom the court considers qualified for the purpose to prepare one; or
b: direct the Registrar to request a person whom the Registrar considers qualified for the purpose to prepare one.
3: The court may act under subsection (2) only if satisfied that—
a: the information that the report will provide is essential for the proper disposition of the application; and
b: the report is the best source of the information, having regard to the quality, timeliness, and cost of other sources; and
c: the proceedings will not be unduly delayed by the time taken to prepare the report; and
d: any delay in the proceedings will not have an unacceptable effect on the child.
4: If the court is entitled by subsection (3) to act under subsection (2) and if the court knows the parties' wishes about the obtaining of a report or can speedily ascertain them, the court must have regard to the parties' wishes before deciding whether or not to act under subsection (2). Court's power to obtain psychological reports
4A: In proceedings relating to an application, other than an application under section 46A
5: To obtain a written psychological report,—
a: the court may—
i: request a psychologist whom the court considers qualified for the purpose to prepare one; or
ii: direct the Registrar to request a psychologist whom the Registrar considers qualified for the purpose to prepare one; and
b: the court—
i: must specify which of the matters listed in paragraphs (a) to (f) of the definition of psychological report in subsection (1) that the report is to cover; and
ii: may specify any matter not listed in paragraphs (a) to (f) of the definition of psychological report in subsection (1) that the report is to cover.
6: The court may act under subsection (5) only if—
a: the court is satisfied that the information that the psychological report will provide is essential for the proper disposition of the application; and
b: the court is satisfied that the psychological report is the best source of the information, having regard to the quality, timeliness, and cost of other sources; and
c: the court is satisfied that the proceedings will not be unduly delayed by the time taken to prepare the psychological report; and
d: the court is satisfied that any delay in the proceedings will not have an unacceptable effect on the child; and
e: the court does not seek the psychological report solely or primarily to ascertain the child's wishes.
7: If the court is entitled by subsection (6) to act under subsection (5) and if the court knows the parties' wishes about the obtaining of a psychological report or can speedily ascertain them, the court must have regard to the parties' wishes before deciding whether or not to act under subsection (5). Court's power to direct meetings
8: If the court acts under subsection (2) or (5), it may give directions at the same time on arrangements for—
a: the child to meet with the report writer; or
b: 1 or more of the parties to meet with the report writer; or
c: the child and 1 or more of the parties to meet with the report writer.
9: If a party or the child fails to meet with the report writer as directed by the court,—
a: the report writer must notify the court; and
b: the court may make further directions. Second opinions
10: The approval of the court must be obtained before a second opinion may be prepared and presented.
11: The court may give approval only if there are exceptional circumstances.
12: A party who obtains the approval of the court for the preparation and presentation of a second opinion is liable for the costs of that opinion.
13: If the court gives approval, it may permit disclosure of the materials to the psychologist preparing the second opinion subject to any terms and conditions that the court considers appropriate
14: If the court declines to give approval to a party, or if a party does not seek approval, the court may permit disclosure of the materials to a psychologist who is employed by the party and who is not the report writer.
15: The court may—
a: permit disclosure, under subsection (14), of the psychological report prepared by the report writer only if the court is satisfied that the psychologist requires the report to assist the party to prepare the party’s cross-examination; and
b: permit disclosure, under subsection (14), of the report writer’s notes and other materials that the report writer used in preparing the psychological report only if the court is satisfied that—
i: the psychologist requires those notes and other materials to assist the party to prepare the party’s cross-examination; and
ii: the notes and other materials to be released comprise information solely about the party who is seeking their release; and
iii: there are exceptional circumstances; and
c: if the court permits disclosure under paragraph (a) or (b), the disclosure is subject to any terms and conditions that the court considers appropriate. Section 133 replaced 31 March 2014 section 28 Care of Children Amendment Act (No 2) 2013 Section 133(1) application inserted 14 August 2018 section 23(1) Minors (Court Consent to Relationships) Legislation Act 2018 Section 133(1A) inserted 14 August 2018 section 23(2) Minors (Court Consent to Relationships) Legislation Act 2018 Section 133(1B) inserted 14 August 2018 section 23(2) Minors (Court Consent to Relationships) Legislation Act 2018 Section 133(4A) inserted 14 August 2018 section 23(3) Minors (Court Consent to Relationships) Legislation Act 2018 Section 133(13) amended 14 November 2018 section 106(1) Courts Matters Act 2018 Section 133(15) replaced 14 November 2018 section 106(2) Courts Matters Act 2018
134: Distribution, etc, of reports under sections 132 and 133
1: The Registrar of the court must copy a report under section 132 section 133 report
a: to the lawyer acting for each party to the proceedings or, subject to subsection (3), if a party has no lawyer acting for that party, to that party; and
b: to a lawyer appointed to act for a child who is the subject of the proceedings.
2: If the court orders a lawyer referred to in subsection (1)﻿(a) not to give or show the report to the person for whom the lawyer is acting, the lawyer must comply with the order.
3: If a party has no lawyer acting for that party and the court is satisfied that information in the report would, if provided directly to that party, place the child concerned or another person at risk of physical abuse, sexual abuse, or psychological abuse, the court may—
a: order that the report not be copied to that party under subsection (1)﻿(a); and
b: appoint counsel to assist the court under section 130
4: Before the report is copied to a lawyer under subsection (1)﻿(b), the court must consider whether the report may be given or shown to the child for whom the lawyer is acting.
5: A lawyer referred to in subsection (1)﻿(b) may give or show the report to the child for whom the lawyer is acting only if the court so orders, but in every case the lawyer must explain to the child the purpose and contents of the report, unless the lawyer considers that to do so would be contrary to the welfare and best interests of the child.
6: A party to the proceedings, or a lawyer appointed to act for a child who is the subject of the proceedings, may present evidence on any matter referred to in the report.
7: The court may, if it thinks fit, call as a witness the person who made or prepared the report. 1968 No 63 ss 29(3)–(7), 29A(3)–(5), (7), (8) Section 134(3)﻿(b) amended 31 March 2014 section 29 Care of Children Amendment Act (No 2) 2013
135: Costs of reports requested under section 133
1: Fees for the preparation of reports requested under section 133
a: be determined in accordance with regulations made under section 16D Family Court
b: be paid in accordance with that determination out of public money appropriated by Parliament for the purpose.
2: Where in any proceedings a report requested under section 133 section 135A
3: However, no order under section 135A section 46A Section 135 replaced 31 March 2014 section 30 Care of Children Amendment Act (No 2) 2013 Section 135(1)﻿(a) amended 1 March 2017 section 261 District Court Act 2016 Section 135(3) inserted 14 August 2018 section 24 Minors (Court Consent to Relationships) Legislation Act 2018
135A: Order requiring reimbursement of costs payments
1: An order referred to in section 131(4) 135(2)
a: under section 131(1)﻿(b) section 7 130
b: under section 135(1)﻿(b) section 133
2: Despite subsection (1), the court may decline to make an order against a party if satisfied that the order would cause serious hardship to the party or to a dependent child of the party.
3: Each party against whom an order is made under subsection (1) must pay an equal share of the prescribed proportion.
4: Despite subsection (3), if the court is satisfied that, in view of the circumstances of the case, including the conduct of any party, it would be inappropriate to require a party to pay the amount payable in accordance with that subsection, the court may substitute, for that party, a different amount not exceeding the prescribed proportion.
5: In this section,— dependent child prescribed proportion section 147 serious hardship
a: includes significant financial difficulties that arise because of—
i: the party's inability to meet minimum living expenses according to normal community standards; or
ii: the cost of medical treatment for an illness or injury of the party or a dependent child of the party; or
iii: a serious illness suffered by the party or by a dependent child of the party; or
iv: the cost of education for a dependent child of the party:
b: does not include significant financial difficulties that arise because—
i: the social activities and entertainment of the party or those of a dependent child of the party may be limited; or
ii: the party is unable to afford goods or services that are expensive or of a high quality or standard according to normal community standards. Section 135A inserted 31 March 2014 section 30 Care of Children Amendment Act (No 2) 2013
135B: Enforcement of orders made under section 135A
1: The amount that a party is ordered to reimburse under section 135A the District Court
2: Despite section 219 230 section 156
a: is to be added to the amount sought to be enforced; and
b: must be paid to the Registrar of the court out of any proceeds that result from the enforcement.
3: For the purposes of section 14(1)﻿(b) Section 135B inserted 31 March 2014 section 30 Care of Children Amendment Act (No 2) 2013 Section 135B(1) amended 1 March 2017 section 261 District Court Act 2016 Section 135B(2) amended 1 March 2017 section 261 District Court Act 2016
136: Court may hear person on child’s cultural background
1: A party to proceedings under this Act that appear likely to proceed to a hearing may, before a date is set for a hearing of the proceedings, ask the court to hear a person to speak on—
a: the child’s cultural background; and
b: any aspects of the particular child’s cultural background that may be relevant to a matter in issue in the proceedings.
2: Without limiting any other powers of the court to adjourn, the court may adjourn the proceedings to enable arrangements to be made to hear a person or persons under this section.
3: Despite subsection (1), if no party makes a request under this section, the court may, at any time during the proceedings, suggest to a party to the proceedings that it may be of assistance to the court to hear a person or persons called by the party on any of the matters specified in subsection (1). 2002 No 9 s 27(1), (4), (5)
137: Attendance at hearings generally
1: Only the following persons may attend a hearing of proceedings (other than criminal proceedings) under this Act:
a: officers of the court:
b: parties to the proceedings:
ba: lawyers acting for the parties (if any):
c: lawyers appointed under section 7 130
d: witnesses:
e: persons the court agrees to hear under section 136
f:
g: accredited news media reporters:
h: persons whom the Judge permits to be present as support persons for a party on a request by that party:
i: any other persons whom the Judge permits to be present.
2: The Judge must agree to a request under subsection (1)﻿(h) unless the Judge considers there is a good reason why the named support persons should not be permitted to be present.
3: No support persons for a party for whom no lawyer is acting may help the party conduct his or her case.
4: If, during a hearing, the Judge requests a person of any of the following kinds to leave the courtroom, the person must do so:
a: a witness:
b: a person the court agrees to hear under section 136
c:
d: an accredited news media reporter:
e: a support person whom the Judge permits to be present under subsection (1)﻿(h).
5:
6: Nothing in this section limits any other power of the court—
a: to hear proceedings in private; or
ab: to permit a McKenzie friend to be present; or
b: to exclude any person from the court. 1968 No 63 s 27 Section 137(1)﻿(b) replaced 31 March 2014 section 31(1) Care of Children Amendment Act (No 2) 2013 Section 137(1)﻿(ba) inserted 31 March 2014 section 31(1) Care of Children Amendment Act (No 2) 2013 Section 137(1)﻿(c) replaced 31 March 2014 section 31(2) Care of Children Amendment Act (No 2) 2013 Section 137(1)﻿(f) repealed 31 March 2014 section 31(3) Care of Children Amendment Act (No 2) 2013 Section 137(4)﻿(c) repealed 31 March 2014 section 31(4) Care of Children Amendment Act (No 2) 2013 Section 137(5) repealed 31 March 2014 section 31(5) Care of Children Amendment Act (No 2) 2013 Section 137(6)﻿(ab) inserted 18 May 2009 section 16 Care of Children Amendment Act 2008
138: Attendance at hearings of persons involved in counselling or conciliation under Family Proceedings Act 1980
Section 138 repealed 31 March 2014 section 32 Care of Children Amendment Act (No 2) 2013
139: Publication of reports of proceedings
Sections 11B to 11D Family Court
a: in the Family Court
b: in any other court, in which case references in those sections to the Family Court or court must be read as references to that other court. Section 139 replaced 18 May 2009 section 17 Care of Children Amendment Act 2008 Section 139 amended 1 March 2017 section 261 District Court Act 2016 Section 139(a) amended 1 March 2017 section 261 District Court Act 2016
139A: Leave required in certain cases to commence substantially similar proceedings
1: A proceeding (a new proceeding section 46R 48 56
a: is substantially similar to a proceeding previously filed in the Family Court previous proceeding
b: is to be commenced less than 2 years after the final direction or order was given in the previous proceeding.
2: The leave of the court may only be given under subsection (1) if, since the final direction or order was given in the previous proceeding, there has been a material change in the circumstances of—
a: any party to the previous proceeding:
b: any child who was the subject of the previous proceeding.
3: In this section, a new proceeding is substantially similar
a: the party commencing the new proceeding was a party to the previous proceeding; and
b: a child who is the subject of the new proceeding was the subject of the previous proceeding; and
c: the new proceeding—
i: is commenced under the same provision of this Act as the previous proceeding; or
ii: is for an order varying the order made in the previous proceeding; or
iii: is for an order discharging the order made in the previous proceeding.
4: This section does not apply if every party to the new proceeding consents to its commencement. Section 139A inserted 31 March 2014 section 33 Care of Children Amendment Act (No 2) 2013 Section 139A(1)﻿(a) amended 1 March 2017 section 261 District Court Act 2016
140: Power to dismiss proceedings
The court may dismiss proceedings before it under this Act if it is satisfied—
a: that the proceedings relate to a specified child, and that the continuation of the proceedings is, in the particular circumstances, clearly contrary to the welfare and best interests of the child; or
b: that the proceedings are frivolous or vexatious or an abuse of the procedure of the court. 1980 No 94 s 163 1989 No 24 s 207
141: Power to restrict commencement of proceedings
if vexatious proceedings previously instituted
1: This section applies to a court if, and only if, the court—
a: is satisfied that a person has persistently instituted vexatious proceedings under this Act or under any former Act (whether those proceedings were in respect of the same person or matter or different persons or matters); and
b: has given the person a reasonable opportunity to be heard.
2: The court may order that the person may commence either of the following only with the leave of the court:
a: proceedings under this Act of any kind; or
b: proceedings under this Act of any specified kind or in respect of any specified person or matter.
3: Nothing in this section limits sections 166 to 169 1980 No 94 s 163 1989 No 24 s 207 Section 141 heading amended 31 March 2014 section 34 Care of Children Amendment Act (No 2) 2013 Section 141(3) amended 1 March 2017 section 183(b) Senior Courts Act 2016
142: Costs
1: In any proceedings under this Act, the court may make any order as to costs it thinks fit.
2: An order under this section may be made either in addition to, or instead of, an order under section 71 section 87 section 121
3: This section is subject to sections 131 135 1968 No 63 s 27B Section 142(3) inserted 31 March 2014 section 35 Care of Children Amendment Act (No 2) 2013
143: Appeals to High Court
1: This subsection applies to a decision of the Family Court
a: make or refuse to make an order (other than an interlocutory or interim order); or
b: dismiss the proceedings; or
c: otherwise finally determine the proceedings.
2: A party to proceedings in which there is made a decision to which subsection (1) applies, or a child to whom those proceedings relate, may appeal to the High Court against the decision. However, if the proceedings are under section 46C 46R
3: A party to proceedings under this Act in the Family Court
3A: However, no appeal may be made to the High Court under subsection (3) in relation to—
a: any interlocutory or interim order made in the following kinds of proceedings:
i: criminal proceedings; or
ii: proceedings under section 46C
iii: proceedings under section 46R
b: a decision under—
i: section 7
ii: section 130
iii: section 133
c:
4: The High Court Rules 2016 sections 125 to 130 section 124
5: On the ex parte section 126(1)
6: Subsection (5) overrides subsection (4). 1968 No 63 s 31 Section 143(1) amended 1 March 2017 section 261 District Court Act 2016 Section 143(2) amended 31 March 2014 section 36(1) Care of Children Amendment Act (No 2) 2013 Section 143(3) amended 1 March 2017 section 261 District Court Act 2016 Section 143(3) amended 31 March 2014 section 36(2) Care of Children Amendment Act (No 2) 2013 Section 143(3A) inserted 31 March 2014 section 36(3) Care of Children Amendment Act (No 2) 2013 Section 143(3A)﻿(c) repealed 1 July 2020 section 5 Family Court (Supporting Families in Court) Legislation Act 2020 Section 143(4) replaced 1 March 2017 section 261 District Court Act 2016 Section 143(5) amended 1 March 2017 section 261 District Court Act 2016
144: Effect of High Court’s order or decision
Except as provided in section 145(1)﻿(b) section 143 1968 No 63 s 31A
145: Appeal to Court of Appeal
1: An appeal lies to the Court of Appeal from an order or decision of the High Court under this Act, but—
a: no appeal lies from an order or decision under section 46C 46R
b: if the order or decision was made on appeal from the Family Court or the District Court
2: The Court of Appeal may, in its discretion, if it thinks that the interests of justice so require,—
a: rehear the whole or any part of the evidence; or
b: receive further evidence. 1968 No 63 s 31B Section 145(1)﻿(a) amended 31 March 2014 section 37 Care of Children Amendment Act (No 2) 2013 Section 145(1)﻿(b) amended 1 March 2017 section 261 District Court Act 2016 Miscellaneous provisions
146: Rules of court
1: Rules may be made in the manner prescribed by the Senior Courts Act 2016
2: Rules may be made under section 16A the Family Court Act 1980 of the Family Court
3:
4: In addition to the powers conferred by section 228
a: regulating the practice and procedure of the District Court
b: providing for any matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
5: Rules under subsection (4)﻿(b) are secondary legislation ( see Part 3
6: As to rules referred to elsewhere in this section, see section 148 section 228 section 16A 1968 No 63 s 32(1)–(1B), (4) The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 146(1) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 146(2) amended 1 March 2017 section 261 District Court Act 2016 Section 146(3) repealed 31 March 2014 section 38 Care of Children Amendment Act (No 2) 2013 Section 146(4) amended 1 March 2017 section 261 District Court Act 2016 Section 146(4)﻿(a) amended 1 March 2017 section 261 District Court Act 2016 Section 146(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 146(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
147: Regulations
1: The Governor-General may, by Order in Council, make regulations under section 156
2: The Governor-General may, by Order in Council, make regulations—
aa: prescribing for the purposes of section 46H
ab: prescribing for the purposes of section 46I
i: that the approval was given on the basis of information that was false or misleading in a material respect; or
ii: that the organisation no longer satisfies any criteria for approval prescribed by regulations made under paragraph (aa); or
iii: that the organisation has requested the suspension or cancellation of the approval; or
iv: that the organisation has been wound up, dissolved, or otherwise has ceased to exist:
ac: prescribing for the purposes of section 46K
i: to be a member of a professional body that the Secretary identifies as a professional body by notice in the Gazette
ii: to have a specified qualification:
iii: to have a specified level of counselling experience:
ad: prescribing for the purposes of section 46K
ae: prescribing for the purposes of section 46M section 46G
af: prescribing for the purposes of section 46N section 46G
ag: specifying for the purposes of sections 46O 47B(2)
i: how a child may be affected when parents separate; and
ii: how the needs of a child may be met when parents separate:
a: providing for the determination, for the purposes of section 60(2) section 59(2)
b: providing for the determination, for the purposes of section 60(3) section 59(2)
i: according to the number of sessions of supervised contact determined to be carried out under section 60(2)
ii: according to whether supervision services are to be provided in a specified number of proceedings during a specified period:
c:
d: prescribing, for the purposes of section 135A
i: section 131(1)﻿(b)
ii: section 135(1)﻿(b)
e: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
3: Regulations under subsection (2) are secondary legislation ( see Part 3 1968 No 63 s 32(2), (3) 1980 No 94 s 187(ca), (cc) The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 147(1) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 147(2)﻿(aa) inserted 25 September 2013 section 39(1) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(ab) inserted 25 September 2013 section 39(1) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(ac) inserted 25 September 2013 section 39(1) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(ad) inserted 25 September 2013 section 39(1) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(ae) inserted 25 September 2013 section 39(1) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(af) inserted 25 September 2013 section 39(1) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(ag) inserted 25 September 2013 section 39(1) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(a) amended 31 March 2014 section 39(2)﻿(a) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(a) amended 31 March 2014 section 39(2)﻿(b) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(b) amended 31 March 2014 section 39(3)﻿(a) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(b) amended 31 March 2014 section 39(3)﻿(b) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(b)﻿(i) amended 31 March 2014 section 39(3)﻿(c) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(c) repealed 31 March 2014 section 39(4) Care of Children Amendment Act (No 2) 2013 Section 147(2)﻿(d) replaced 25 September 2013 section 39(5) Care of Children Amendment Act (No 2) 2013 Section 147(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
148: Other Acts not affected
1: Nothing in this Act affects the following Acts:
a: Oranga Tamariki Act 1989
b: Family Proceedings Act 1980
2: This section is subject to sections 66 149 to 151 Schedules 2 to 4 1968 No 63 s 34 Section 148(1)﻿(a) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 148(2) amended 31 March 2014 section 40 Care of Children Amendment Act (No 2) 2013 Amendments to Family Proceedings Act 1980 (extending counselling and conciliation provisions to same-sex de facto partners)
149: Amendments in Schedule 2
The Family Proceedings Act 1980 Schedule 2 Amendments to Family Proceedings Act 1980 (parentage tests in civil proceedings)
150: Amendments in Schedule 3
The Family Proceedings Act 1980 Schedule 3 Other amendments and repeal
151: Other amendments in Schedule 4
The Acts listed in Schedule 4
152: Repeals
The following Acts are repealed:
a: Guardianship Act 1968 (1968 No 63):
b: Care of Children Amendment Act 2008
c: Care of Children Amendment Act 2013 2014-03-31 Care of Children Amendment Act 2013 Care of Children Amendment Act 2008 Section 152 replaced 31 March 2014 section 41 Care of Children Amendment Act (No 2) 2013 Saving and transitional provisions on enactment of this Act Heading replaced 31 March 2014 section 42 Care of Children Amendment Act (No 2) 2013
153: Orders under 1968 Act appointing person as guardian
1: Orders made under provisions of the Guardianship Act 1968 The following table is small in size and has 3 columns. Column 1 is headed Kind of guardian. Column 2 is headed Provision of 1968 Act. Column 3 is headed Provision of this Act. Kind of guardian Provision of 1968 Act Provision of this Act father section 6(3) section 19(4) testamentary section 7(3) section 26(3) court-appointed section 8 section 27
2: The guardianship of a person appointed as guardian by an order referred to in subsection (1) terminates in accordance with section 28
154: Declarations under section 6A of 1968 Act as to guardianship of fathers
Declarations made under section 6A of the Guardianship Act 1968 section 20
155: Appointments of testamentary guardians under section 7(2) of 1968 Act
1: Appointments of testamentary guardians under section 7(2) of the Guardianship Act 1968 section 26(2)
2: The guardianship of a testamentary guardian appointed under section 7(2) of the Guardianship Act 1968 section 28
156: Orders under 1968 Act about guardianship of court
An order that is made under section 10B(1)﻿(a) or (as the case requires) section 10B(1)﻿(b) or section 10D(1)﻿(c)﻿(ii) of the Guardianship Act 1968 section 31(1)﻿(a) section 33(1)﻿(c)﻿(ii)
157: Orders under 1968 Act about custody
Orders about custody of a child that are made under the Guardianship Act 1968
158: Orders under 1968 Act about access
Orders about access to a child that are made under the Guardianship Act 1968
159: Other references to custody and access under 1968 Act
Unless the context otherwise requires, every reference in any document whatsoever (other than in this Act or in an enactment specified in Schedule 4
a: to custody of Guardianship Act 1968 the role of providing day-to-day care for
b: to access to Guardianship Act 1968 contact with
160: Existing proceedings under 1968 Act
1: This section applies to proceedings under the Guardianship Act 1968 section 12 of the Guardianship Amendment Act 1991
a: that were commenced before the date on which this Act comes into force; and
b: that are not withdrawn or finally determined by the date on which this Act comes into force.
2: Proceedings to which this section applies continue under this Act (whether the hearing of those proceedings commenced before or after the date on which this Act comes into force) as if those proceedings were commenced under this Act.
161: Appointments under section 30 of 1968 Act
1: Appointments of a barrister or solicitor under section 30(1)﻿(a) of the Guardianship Act 1968 section 130(1)
2: Appointments of a barrister and solicitor under section 30(1)﻿(b) of the Guardianship Act 1968 section 7(1)
162: Applications under 1991 Amendment Act
1: This section applies to applications under the Guardianship Amendment Act 1991 section 7(1) of that Act
a: that were made before the date on which this Act comes into force; and
b: that are not withdrawn or finally determined by the date on which this Act comes into force.
2: Applications to which this section applies continue under this Act as if they were made under this Act to the Central Authority for New Zealand designated by section 100(1)
163: Appointments under section 23 of 1991 Amendment Act
Appointments of a barrister or solicitor under section 23 of the Guardianship Amendment Act 1991 section 116
164: Orders saved by section 31(2) of 1991 Amendment Act
The repeal of the Guardianship Amendment Act 1991 section 152 section 31(2) of that Act
a: as if the United Kingdom of Great Britain and Northern Ireland were a prescribed country under this Act; and
b: if the order was registered under section 22A of the Guardianship Act 1968 section 81
c: if the order was not registered under section 22A of the Guardianship Act 1968 section 31(2) of the Guardianship Amendment Act 1991 section 81 Transitional provision applying on enactment of Care of Children Amendment Act (No 2) 2013 Heading inserted 31 March 2014 section 43 Care of Children Amendment Act (No 2) 2013
165: Proceedings commenced before commencement of this section but not completed
1: This section applies to proceedings under this Act that were commenced before the date of commencement of this section but were not by that date completed (a pending proceeding
2: The following provisions do not apply to a pending proceeding:
a: section 7A
b: section 135A
c: section 135B
3: The following provisions, as in force immediately before the date of commencement of this section, continue to apply to a pending proceeding with any necessary modifications as if the Care of Children Amendment Act (No 2) 2013
a: section 131
b: section 135
c: section 137
4: If section 57 section 57 Care of Children Amendment Act (No 2) 2013
5: If in any pending proceeding there is in force immediately before the date of commencement of this section an order for supervised contact between a child who is the subject of the proceeding and any party, sections 62 147(2)﻿(a) and (b) Care of Children Amendment Act (No 2) 2013
6: If in any pending proceeding a referral to counselling was made either on the court's initiative (under section 45 section 65
a: sections 66 67 69 138 Care of Children Amendment Act (No 2) 2013
b: the counselling may not start or continue 4 months after the date of commencement of this section. Section 165 inserted 31 March 2014 section 43 Care of Children Amendment Act (No 2) 2013