Family Court (Family Court Associates) Legislation Bill
2022 No 148-1

Family Court (Family Court Associates) Legislation Bill

Government Bill

148—1

Explanatory note

General policy statement

The Family Court (Family Court Associates) Legislation Bill is an omnibus Bill introduced under Standing Order 267(1)(a). That Standing Order provides that an omnibus Bill to amend more than 1 Act may be introduced if the amendments deal with an interrelated topic that can be regarded as implementing a single broad policy. The single broad policy implemented by the amendments in this Bill is to improve outcomes for people participating in Family Court proceedings, particularly children, by creating a new role to take on some of the Family Court Judges’ workload in order to reduce delay.

The Bill amends the Family Court Act 1980 to provide for the appointment of Family Court Associates and to confer on Family Court Associates some of the functions and powers of Family Court Judges. The Bill also expressly modifies a number of other family law statutes, including the following:

  • Adoption Act 1955:

  • Care of Children Act 2004:

  • Child Support Act 1991:

  • Family Proceedings Act 1980:

  • Family Violence Act 2018:

  • Marriage Act 1955:

  • Oranga Tamariki Act 1989:

  • Property (Relationships) Act 1976:

  • Protection of Personal and Property Rights Act 1988:

  • Status of Children Act 1969.

The Family Court Associate role is based on a recommendation made by the Independent Panel that examined the 2014 reforms to the Family Court in their report, Te Korowai Ture ā-Whānau.

The Independent Panel found that the delay in the resolution of issues before the Family Court is widespread and impacts on most other areas in the family justice system. Judges’ high administrative workload contributes towards that delay. Delay is a significant factor in undermining confidence in the Family Court and can contribute to deepening parent, family, and whānau conflict.

A Family Court Associate will be a judicial officer (but not for the purposes of section 12B of the Remuneration Authority Act 1977). As judicial officers, Family Court Associates will be independent of the Executive and will have powers additional to those of a Registrar. They will be able to take on some work currently undertaken by Judges, including decisions made at the early stages of proceedings. This will enable Judges to focus on progressing casework. Substantive decisions in proceedings will continue to be made by Judges because of the social significance of those decisions, the impact those decisions have on human rights, and the complexity of the decisions.

Departmental disclosure statement

The Ministry of Justice is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact statement

The Ministry of Justice produced a regulatory impact statement on 9 February 2022 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. The following provisions come into force on the day after the date of Royal assent:

  • clause 4, to the extent it inserts new sections 7A, 7B, 7E, and 7F into the Family Court Act 1980 relating to the appointment and remuneration of Family Court Associates (FCAs); and

  • subpart 10 of Part 2, which amends the Remuneration Act 1977 to provide that the remuneration of FCAs is determined by the Remuneration Authority.

The rest of the Bill comes into force 4 months after the date of Royal assent, allowing a period of time for completion of the appointment process for FCAs and for the necessary administrative processes to be put in place. It also allows amendments to be made to the Family Court Rules 2002 and for those amendments to be brought into force concurrently.

Part 1Amendments to the Family Court Act 1980

Clause 3 provides that Part 1 amends the Family Court Act 1980 (the principal Act).

Clause 4 inserts new sections 7A to 7H into the principal Act.

New section 7A provides for the appointment of FCAs. One or more FCAs may be appointed by the Governor-General on the recommendation of the Attorney-General and an FCA may be appointed on a full-time or part-time basis. A person is eligible to be appointed an FCA if—

  • the person has held a New Zealand practising certificate as a barrister, or barrister and solicitor, for at least 7 years; and

  • by reason of their training, experience, and personality the person is suitable to hold the office of FCA.

New section 7B provides that an FCA is appointed for a term of up to 7 years and may be reappointed for further terms. An FCA may be removed from office by the Governor-General, on advice from the Attorney General, for neglect of duty, inability, bankruptcy, or misconduct, proved to the satisfaction of the Governor-General. An FCA may at any time resign by written notice to the Attorney-General.

New section 7C provides that the jurisdiction and powers of an FCA are set out in new Schedule 2 (inserted by clause 6).

An FCA has the jurisdiction and powers of a Family Court Judge to—

  • appoint a lawyer to represent a child or young person in proceedings:

  • appoint a lawyer to represent a person lacking capacity to whom section 67 of the Family Violence Act 2018 applies:

  • appoint a lawyer to represent an applicant in proceedings under the Civil Union Act 2004 or the Marriage Act 1955:

  • appoint a lawyer to represent a care recipient in proceedings under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:

  • appoint a lawyer to put to a witness questions on behalf of a party who fails or refuses to engage a lawyer and is precluded from cross-examining the witness under section 95 of the Evidence Act 2006:

  • appoint a lawyer to assist the court:

  • review a Registrar’s decision relating to the fees and expenses of lawyers appointed by a Family Court Judge or an FCA:

  • order certain parties to reimburse the Crown an amount in respect of the fees and expenses of a lawyer appointed by the court:

  • order parties to reimburse the Crown an amount in respect of the fees and expenses incurred in relation to a report prepared under section 132 or 133 of the Care of Children Act 2004:

  • obtain cultural reports in proceedings under the Care of Children Act 2004, Civil Union Act 2004, or Marriage Act 1955:

  • obtain medical, psychiatric, or psychological reports in proceedings under the Care of Children Act 2004:

  • obtain medical, psychiatric, psychological, or other reports in proceedings under the Protection of Personal and Property Rights Act 1988.

An FCA also has—

  • the jurisdiction under specified enactments:

  • the powers of a Family Court Judge to deal with any matter that an FCA has jurisdiction to deal with under an enactment, unless otherwise specified:

  • the jurisdiction and powers conferred on a Registrar of the Family Court under any enactment:

  • the jurisdiction and powers conferred on a Registrar of the District Court under sections 77, 77B, 117, and 118 of the Care of Children Act 2004.

New section 7D enables an FCA, on the application of a party to a proceeding before the FCA or on the FCA’s own initiative, to transfer the proceeding, or a matter in the proceeding, to a Family Court Judge because of its complexity. A Family Court Judge may also, on the application of a party to a proceeding before an FCA and if the Judge thinks it desirable to do so, order that the proceeding, or any matter in the proceeding, be transferred to a Family Court Judge.

New section 7E provides for the remuneration of FCAs. FCAs are paid a salary, or a fee, or an allowance at the rate determined by the Remuneration Authority. FCAs may also be paid any additional allowances (including travelling allowances and expenses) in accordance with the Fees and Travelling Allowances Act 1951.

New section 7F provides that the remuneration payable to an FCA must not be reduced while the FCA holds office.

New section 7G provides that an FCA must not undertake certain employment or hold certain offices.

New section 7H affords immunity to an FCA who acts within their jurisdiction.

Clause 5 amends section 15A of the principal Act to provide that references to judicial officer in sections 10, 11(2), and 25(2) of the Contempt of Court Act 2019 include an FCA. This ensures that an FCA can deal with disruptive behaviour in proceedings over which they are presiding.

Clause 6 inserts into the principal Act new Schedule 2, which sets out the jurisdiction and powers of FCAs.

Part 2Amendments to other legislation

Subpart 1—Amendments to Adoption Act 1955

Clause 7 provides that subpart 1 amends the Adoption Act 1955 (the principal Act).

Clause 8 amends section 7 of the principal Act to add FCAs to the list of persons who are able to witness in New Zealand the signing of a document consenting to an adoption.

Clause 9 amends section 8 of the principal Act to afford to an FCA the same jurisdiction as a Family Court Judge to dispense with the consent of a parent or guardian to the adoption of a child and to make orders relating to service of an adoption application on a parent or guardian who has a mental disability.

Clause 10 amends section 23 of the principal Act to afford to an FCA the same jurisdiction as a Family Court Judge to order that adoption records be produced, or open for inspection, in certain circumstances.

Clause 11 amends section 23A of the principal Act to afford to an FCA the same power as a Family Court Judge to require the preparation of a social worker’s report if an application is made under section 23 of the principal Act on any special ground for the production or inspection of any adoption records.

Subpart 2—Amendments to Care of Children Act 2004

Clause 12 provides that subpart 2 amends the Care of Children Act 2004 (the principal Act).

Clause 13 amends section 46E of the principal Act to enable a Registrar to refer an application for a guardianship order or parenting order to either an FCA or a Family Court Judge for a decision on whether it may be accepted for filing on the basis that there is sufficient evidence of certain matters that demonstrate it would not be appropriate for the parties to attend family dispute resolution.

Clause 14 amends section 46F of the principal Act to afford to an FCA the same power as a Family Court Judge to direct the parties to an application to attend family dispute resolution.

Clause 15 amends section 46G of the principal Act to afford to an FCA the power to refer the parties to an application to attend counselling. A referral may be made at any stage of the proceedings.

Clause 16 replaces section 46O of the principal Act to afford to an FCA the same power as a Family Court Judge to direct 1 or more parties to an application for a parenting order to attend a parenting information programme. A direction under this section may be made at any time after an application has been filed.

Clause 17 amends section 46P of the principal Act to reflect that an FCA or a Family Court Judge may preside over a settlement conference.

Clause 18 amends section 46Q of the principal Act to enable an FCA to convene a settlement conference at any time before the hearing of a proceeding. This is additional to the jurisdiction of a Family Court Judge to direct the Registrar to convene a settlement conference at any time before the hearing of a proceeding.

Clause 19 amends section 47 of the principal Act to enable an FCA, as well as a Family Court Judge, to grant a person who is not a parent or guardian of a child, or a spouse or partner of a parent of a child, leave to apply for a parenting order in respect of the child.

Clause 20 amends section 49A of the principal Act to enable an FCA to assign a hearing date if an interim parenting order has been made in respect of a child, the parents of the child are the parties to the order, and a parent who has neither the role of providing day-to-day care for nor contact with the child has not given notice that they wish to be heard.

Clause 21 replaces section 59 of the principal Act. New section 59 carries over existing section 59, which enables a Family Court Judge to make an order for supervised contact when making or varying an interim or final parenting order if the Judge has concerns about the safety of the child when the child has contact with a parent. New section 59 also provides that an FCA may, on an application made by both parents of the child or by the lawyer appointed to represent the child (if the parents consent), vary an interim parenting order to provide that a parent (who under that order has neither the day-to-day care for, nor contact with, the child) have supervised contact with the child facilitated by an approved provider.

Clause 22 amends section 77 of the principal Act to enable an FCA to exercise the powers of an authority under that section in the event that no High Court Judge, District Court Judge, or Family Court Judge is available. If an authority believes on reasonable grounds that a person may take a child out of New Zealand with intent to defeat an application or compliance with a parenting order, the authority may exercise certain powers, including the power to uplift the child.

Clause 23 amends section 77A of the principal Act as a consequence of the amendment to section 77 (by clause 22).

Clause 24 amends section 77B of the principal Act as a consequence of the amendment to section 77 (by clause 22).

Clause 25 amends section 117 of the principal Act to enable an FCA to issue a warrant under this section in the event that no District Court Judge or Family Court Judge is available. A warrant may be issued to uplift a child if an application is made under section 103 of the principal Act claiming that a child has been abducted to New Zealand and there are reasonable grounds to believe a person will attempt to conceal the whereabouts of the child with intent to defeat the application.

Clause 26 amends section 118 of the principal Act to enable an FCA to exercise the powers under this section in the event that no High Court Judge, District Court Judge, or Family Court Judge is available. The powers (which include the power to issue a warrant to uplift a child) may be exercised to prevent the removal of a child from New Zealand in circumstances where there are reasonable grounds to believe that a person is intending to defeat an application under section 103, 105, or 113 of the principal Act, or compliance with an order under section 105(2) of the principal Act for the return of the child.

Clause 27 amends section 132 of the principal Act to afford to an FCA the same power as a Family Court Judge to direct that a copy of an application for guardianship or for a parenting order be given to the chief executive of Oranga Tamariki—Ministry for Children. If this is done, a social worker is required to prepare a report on the application and may appear personally or by a lawyer at the hearing of the application.

Clause 28 amends section 134 of the principal Act to afford to an FCA the same jurisdiction as a Family Court Judge to order that a report prepared under section 132 or 133 of the principal Act not be shown to a party or to the child who is the subject of the report.

Clause 29 amends section 137 of the principal Act to enable an FCA to grant a request for 1 or more support persons for a party to be present at a hearing.

Clause 30 amends section 139A of the principal Act to enable a Family Court Judge or an FCA to grant a person leave under that section to commence a proceeding that is substantially similar to an earlier proceeding determined less than 2 years ago.

Clause 31 amends section 141 of the principal Act to enable a Family Court Judge or an FCA to order that a person who has persistently instituted vexatious proceedings may only commence further proceedings under the principal Act with leave of the court.

Subpart 3—Amendments to Child Support Act 1991

Clause 32 provides that subpart 3 amends the Child Support Act 1991 (the principal Act).

Clause 33 amends section 99 of the principal Act, which provides that, on an application made to it, the Family Court may grant a declaration that a specified person is a step-parent of a child. Section 99 is amended to provide that an FCA may grant a declaration under this section if the application is undefended.

Clause 34 amends section 103A of the principal Act to provide that a Family Court Judge or an FCA may allow an appeal under that section (appeals against a determination or decision made by the Commissioner of Inland Revenue under subpart 3 of Part 5A of the principal Act) to be lodged later than the specified 2-month period. However, an FCA does not have jurisdiction to hear an appeal under that section.

Clause 35 amends section 103B of the principal Act to provide that a Family Court Judge or an FCA may allow an appeal under that section (appeals against a determination made by the Commissioner of Inland Revenue under Part 6A of the principal Act) to be lodged later than the specified 2-month period. However, an FCA does not have jurisdiction to hear an appeal under that section.

Clause 36 amends section 103C of the principal Act to provide that a Family Court Judge or an FCA may allow an appeal under this section (appeals in relation to a determination made by the Commissioner of Inland Revenue under Part 6B of the principal Act) to be lodged later than the specified 2-month period. However, an FCA does not have jurisdiction to hear an appeal under that section.

Clause 37 amends section 104 of the principal Act to provide that a Family Court Judge or an FCA may decide whether an application may be made under that section (to depart from the formula assessment) on the ground that it would be appropriate for the court to consider the application at the same time as it hears another application pending in the court.

Clause 38 amends section 105 of the principal Act to afford to an FCA the same jurisdiction and powers as a Family Court Judge to determine an application made under section 104 of the principal Act.

Clause 39 amends section 106 of the principal Act as a consequence of the amendment to section 105 of the principal Act (by clause 38), to refer to the types of orders an FCA (or a Family Court Judge) may make under that section.

Clause 40 amends section 107 of the principal Act, also as a consequence of the amendment to section 105 of the principal Act (by clause 38).

Clause 41 amends section 117 of the principal Act to provide that a Family Court Judge or an FCA may make an order under that section suspending or altering the liability of any person to make payments under the principal Act pending the hearing and final determination of a proceeding.

Clause 42 amends section 184 of the principal Act to afford to an FCA the same power as a Judge of the Family Court or District Court to order that financial support payable, or to become payable, under the principal Act be a charge on any property, and to vary or discharge that order.

Clause 43 makes a consequential amendment to section 185 of the principal Act to reflect that an order under section 184 of the principal Act (as amended by clause 42) may be made by an FCA.

Subpart 4—Amendments to Family Proceedings Act 1980

Clause 44 provides that subpart 4 amends the Family Proceedings Act 1980 (the principal Act).

Clause 45 amends section 51 of the principal Act to enable an FCA to hear and determine an undefended application for paternity orders.

Clause 46 amends section 54 of the principal Act so that in any proceedings in the Family Court in which the parentage of a child is in issue an FCA has the same jurisdiction and power as a Family Court Judge to recommend that parentage tests be carried out on the child and on any person who may be a natural parent of the child. However, unlike a Family Court Judge, an FCA may only make a recommendation of this kind on the application of a party and not on their own initiative.

Clause 47 amends section 55 of the principal Act to afford to an FCA the same powers as a Family Court Judge to require a person who has carried out a parentage test and submitted a report of the test to the court to provide a written statement explaining or amplifying any matter in the report. However, unlike a Family Court Judge, an FCA may only impose this requirement on the application of a party and not on their own initiative.

Clause 48 amends section 56 of the principal Act to afford to an FCA the same powers as a Family Court Judge to summon as a witness in proceedings the person who compiled a parentage test report or any other person involved in carrying out the parentage test or preparing the report.

Clause 49 makes a consequential amendment to section 57 of the principal Act to reflect that a recommendation under section 54 of the principal Act (as amended by clause 46) may be made by an FCA.

Clause 50 amends section 91 of the principal Act to afford to an FCA the same powers as a Family Court Judge in any maintenance proceedings to request the submission of a report on the financial circumstances of a party and that the report-writer appear as a witness in respect of any matter referred to or arising out of the report.

Clause 51 replaces section 145F of the principal Act, which provides that an application made by a person in a Convention country claiming to be entitled to recover maintenance from a person residing in New Zealand, or an application for the variation, suspension, or discharge of a maintenance order made against a person residing in New Zealand, must be heard and determined in the Family Court. This section is amended so that an application of this kind may be determined by a Family Court Judge or an FCA without a holding a hearing if the respondent consents to the making of the orders sought in the application and before the orders are made the respondent has been given the opportunity to obtain legal advice.

Subpart 5—Amendments to Family Violence Act 2018

Clause 52 provides that subpart 5 amends the Family Violence Act 2018 (the principal Act).

Clause 53 makes a consequential amendment to section 189 of the principal Act to reflect that an objection to a direction made under section 188 of the principal Act (a direction to undertake an assessment for a non-violence programme or prescribed service, attend a non-violence programme, or engage with any prescribed standard service) may be dealt with by a Family Court Judge or an FCA under section 190 of the principal Act (as amended by clause 54).

Clause 54 amends section 190 of the principal Act so that an FCA is able to deal with an objection made under section 189 of the principal Act and to provide that an FCA may confirm, vary, or discharge the direction.

Clause 55 amends section 193 of the principal Act to provide that on receiving notice from an assessor that an assessor has decided not to undertake or complete an assessment, or to make a determination, the Registrar must bring the matter to the attention of an FCA or a Family Court Judge.

Clause 56 amends section 194 of the principal Act to provide that on receiving notice from an assessor that an assessor has decided that a respondent’s attendance at a non-violence programme should be delayed, or that the respondent’s engagement with a prescribed standard service should be delayed, or that both of these things should be delayed, the Registrar must bring the matter to the attention of an FCA or a Family Court Judge.

Clause 57 amends section 196 of the principal Act to provide that on receiving notice from an assessor that an assessor has made a determination under section 192(b) of the principal Act (whether there is an appropriate non-violence programme for the respondent to attend) or section 192(c) of the principal Act (whether there are types of prescribed services that may be appropriate the respondent to attend), the Registrar must bring the matter to the attention of an FCA or a Family Court Judge.

Clause 58 amends section 198 of the principal Act to provide that on receiving from an assessor the results of an assessment and all relevant information, the Registrar must bring the matter to the attention of an FCA or a Family Court Judge. The FCA or Family Court Judge can then direct the respondent to engage with a particular prescribed non-standard service and make further directions relating to the respondent’s attendance.

Clause 59 amends section 199 of the principal Act to provide that on receiving notice from an assessor that a service provider is not able to provide a non-violence programme or prescribed service to a respondent, and all relevant information, the Registrar must bring the matter to the attention of an FCA or a Family Court Judge.

Clause 60 amends section 200 of the principal Act to provide that on receiving notice from a service provider that the service provider has made a determination that the respondent’s attendance at a non-violence programme or engagement with a prescribed service should be delayed, or that it would not be appropriate for the respondent to attend the programme or engage with the service, or both, the Registrar must bring the matter to the attention of an FCA or a Family Court Judge.

Clause 61 amends section 201 of the principal Act to provide that on receiving notice from a service provider that the service provider has not been able to settle with the respondent the terms of attendance at a non-violence programme or engagement with a prescribed service, the Registrar must bring the matter to the attention of an FCA or a Family Court Judge.

Clause 62 amends section 203 of the principal Act to provide that on receiving notice from a service provider under section 203(3)(a) of the principal Act about the continued provision of a non-violence programme or a prescribed service, the Registrar must bring the matter to the attention of an FCA or a Family Court Judge.

Clause 63 amends section 204 of the principal Act to provide that an FCA or a Family Court Judge may release to a respondent or a lawyer acting for a child a report prepared by a service provider after the respondent has completed a non-violence programme or has completed engagement with a prescribed service. The report may be released on any terms and conditions the FCA or Family Court Judge considers necessary or desirable to protect the safety of a protected person.

Clause 64 amends section 206 of the principal Act to set out the things that an FCA can do when a matter is brought to their attention under sections 193(3), 194(3), 196(3)(b), 199(4), 200(2), 201(5)(b), or 203(4)(b) of the principal Act. An FCA has more limited powers than a Family Court Judge. In particular, an FCA may not make a parenting order, or vary or discharge the terms of a parenting order.

Clause 65 amends section 207 of the principal Act to reflect that a Family Court Judge or an FCA may make a direction under section 198 of the principal Act (as amended by clause 58).

Clause 66 amends section 208 of the principal Act to provide that on receiving notice of certain matters that raise concerns about the safety of a protected person the Registrar must bring the matter, without delay, to the attention of an FCA or a Family Court Judge for consideration as to whether the respondent should be called before the court.

Clause 67 replaces section 209 of the principal Act to reflect that under section 208 of the principal Act (as amended by clause 66) an FCA or a Family Court Judge may call a respondent before the court.

Clause 68 replaces section 210 of the principal Act to set out the things that an FCA can do when a respondent is called before the court. An FCA has more limited powers than a Family Court Judge. In particular, an FCA may not make a parenting order, or vary or discharge the terms of a parenting order.

Subpart 6—Amendments to Marriage Act 1955

Clause 69 provides that subpart 6 amends the Marriage Act 1955 (the principal Act).

Clause 70 replaces sections 26 and 27 of the principal Act.

New section 26 affords to an FCA the same jurisdiction as Family Court Judges to discharge a caveat that has been lodged against an intended marriage.

New section 27 reflects that an FCA may discharge a caveat under new section 26 of the principal Act and enables the FCA to award damages against a caveator if the FCA is satisfied that the grounds on which the caveat was lodged were vexatious and unreasonable.

Subpart 7—Amendments to Oranga Tamariki Act 1989

Clause 71 provides that subpart 7 amends the Oranga Tamariki Act 1989 (the principal Act).

Clause 72 amends section 39 of the principal Act to enable an FCA to issue a warrant under this section in the event that no District Court Judge is available. A warrant may be issued authorising the search for and, if necessary, the uplifting of a child or young person suspected to be suffering ill-treatment, neglect, deprivation, abuse, or harm.

Clause 73 amends section 40 of the principal Act to enable an FCA to issue a warrant under this section in the event that no District Court Judge is available. A warrant may be issued authorising the search for and, if necessary, the uplifting of a child or young person who is believed to be suffering ill-treatment, serious neglect, abuse, serious deprivation, abuse, or serious harm, or who is believed to be so seriously disturbed as to be likely to act in a manner harmful to themselves or others or to cause serious damage to property.

Clause 74 amends section 74 of the principal Act to afford to an FCA the same power as a Family Court Judge to direct persons involved in care or protection proceedings to participate in counselling.

Clause 75 amends section 169 of the principal Act to afford to an FCA the same power as a Family Court Judge to grant leave to any person (not being a legal representative) to make representations to the court on behalf of a party to proceedings who is a parent, guardian, or other person having the care of a child or young person.

Clause 76 amends section 170 of the principal Act to enable an FCA to ask the Registrar to convene a mediation conference in proceedings before the Family Court.

Clause 77 amends section 201 of the principal Act to afford to an FCA same power as a Family Court Judge to adjourn the hearing of any proceeding before the Family Court. However, unlike a Family Court Judge, an FCA may not, when granting an adjournment, make any order relating to the custody of, or access to, a child or young person.

Subpart 8—Amendments to Property (Relationships) Act 1976

Clause 78 provides that subpart 8 amends the Property (Relationships) Act 1976 (the principal Act).

Clause 79 amends section 25 of the principal Act by inserting new subsection (4A), which affords to an FCA the same jurisdiction and powers as a Family Court Judge to make an interim order for the sale of any relationship property and directions with respect to the proceeds. However, an FCA may only make an order of this kind if the parties to the proceedings consent.

Clause 80 amends section 37 of the principal Act to afford to an FCA the same power as a Family Court Judge to direct that notice be given to any person having an interest in property that would be affected by an order made on an application under the principal Act.

Clause 81 replaces section 40 of the principal Act to afford to an FCA the same jurisdiction and power as a Family Court Judge to make an order as to costs in any proceedings under the principal Act.

Clause 82 amends section 42 of the principal Act, to afford to an FCA the same jurisdiction as a Family Court Judge under section 143 of the Land Transfer Act 2017 to make orders on an application for the lapse of a notice of claim registered under the latter Act to protect a claim to an interest, under the principal Act, in any land.

Clause 83 amends section 43 of the principal Act by inserting new subsection (1B), which affords to an FCA the same jurisdiction and power as a Family Court Judge to make an order restraining the disposition of any property or to direct that the proceeds of a disposition be paid into court. However, an FCA may only make an order of this kind on the application of a party, not on the FCA’s own initiative.

Subpart 9—Amendments to Protection of Personal and Property Rights Act 1988

Clause 84 provides that subpart 9 amends the Protection of Personal and Property Rights Act 1988 (the principal Act).

Clause 85 amends section 15 of the principal Act to afford to an FCA the same jurisdiction as a Family Court Judge to make orders by consent under section 10, 11, 12, or 14 of the principal Act.

Clause 86 amends section 48 of the principal Act to enable the Registrar of the court to draw to the attention of an FCA or a Family Court Judge the failure of a manager of any property to file in court a statement required by section 45(2) of the principal Act. The FCA or Family Court Judge must then, unless they think it inappropriate to do so, direct the manager to remedy the default within a specified time.

Clause 87 amends section 66 of the principal Act to provide that, at any time after an application has been made under the principal Act, an FCA may direct the Registrar to convene a pre-hearing conference.

Clause 88 amends section 68 of the principal Act to provide that a pre-hearing conference may be presided over by a Family Court Judge or an FCA.

Clause 89 amends section 69 of the principal Act so that an FCA presiding over a pre-hearing conference must record the matters on which the parties reach agreement and the matters on which the parties do not reach agreement.

Clause 90 amends section 70 of the principal Act to enable an FCA to make consent orders when presiding over a pre-hearing conference.

Clause 91 amends section 72 of the principal Act to provide that privilege does not extend to records made by an FCA under section 69 of the principal Act (as amended by clause 89) at a pre-hearing conference or to consent orders made by an FCA under section 70 of the principal Act (as amended by clause 90) at a pre-hearing conference.

Subpart 10—Amendments to Remuneration Authority Act 1977

Clause 92 provides that subpart 10 amends the Remuneration Authority Act 1977 (the principal Act).

Clause 93 amends Schedule 4 of the principal Act to insert a reference to FCAs. This amendment and new section 7E(1)(a) of the Family Court Act 1980 (inserted by clause 4) enable the salary, fees, and allowances of FCAs to be determined by the Remuneration Authority.

Subpart 11—Amendments to Status of Children Act 1969

Clause 94 provides that subpart 11 amends the Status of Children Act 1969 (the principal Act).

Clause 95 amends section 10 of the principal Act to provide that an FCA may make a declaration of paternity.

Hon Kiritapu Allan

Family Court (Family Court Associates) Legislation Bill

Government Bill

148—1

Contents

Explanatory note
1Title
2Commencement
3Principal Act
4New sections 7A to 7H inserted
7AAppointment of Family Court Associates
7BTerm of appointment of Family Court Associates
7CJurisdiction and powers of Family Court Associates
7DTransfer of proceeding to Family Court Judge
7ERemuneration of Family Court Associates
7FRemuneration of Family Court Associates must not be reduced
7GRestrictions on Family Court Associates
7HImmunity for Family Court Associates
5Section 15A amended (Application of Contempt of Court Act 2019)
6New Schedule 2 inserted
7Principal Act
8Section 7 amended (Consents to adoption)
9Section 8 amended (Cases where consent may be dispensed with)
10Section 23 amended (Inspection of adoption records)
11Section 23A amended (Report on application for inspection)
12Principal Act
13Section 46E amended (Family dispute resolution mandatory before commencement of proceedings)
14Section 46F amended (Family dispute resolution after proceedings commenced)
15Section 46G amended (Counselling after proceedings commenced)
16Section 46O replaced (Judge may direct party to undertake parenting information programme)
46OParty may be directed to undertake parenting information programme
17Section 46P amended (Purpose of settlement conferences)
18Section 46Q amended (Settlement conferences)
19Section 47 amended (Who may apply for parenting order)
20Section 49A amended (Interim parenting order where parent does not have day-to-day care for, or contact with, child)
21Section 59 replaced (Court may order supervised contact)
59Order for supervised contact
22Section 77 amended (Preventing removal of child from New Zealand)
23Section 77A amended (Orders under section 77(3)(c) in respect of children of or over 16 years)
24Section 77B amended (Orders under section 77(3)(c) may be suspended for specified period)
25Section 117 amended (Preventing concealment of whereabouts of child)
26Section 118 amended (Preventing removal of child to defeat application)
27Section 132 amended (Reports from chief executive or social worker)
28Section 134 amended (Distribution, etc, of reports under sections 132 and 133)
29Section 137 amended (Attendance at hearings generally)
30Section 139A amended (Leave required in certain cases to commence substantially similar proceedings)
31Section 141 amended (Power to restrict commencement of proceedings if vexatious proceedings previously instituted)
32Principal Act
33Section 99 amended (Declarations in respect of step-parents)
34Section 103A amended (Appeal in relation to determination or decision under subpart 3 of Part 5A)
35Section 103B amended (Appeal by respondent from determination under Part 6A)
36Section 103C amended (Appeal from determination under Part 6B)
37Section 104 amended (Application for departure from formula assessment in special circumstances)
38Section 105 amended (Matters as to which court must be satisfied before making order)
39Section 106 amended (Orders that may be made)
40Section 107 amended (Implementation of orders)
41Section 117 amended (Suspension orders)
42Section 184 amended (Charging orders)
43Section 185 amended (Charging orders on life insurance policies)
44Principal Act
45Section 51 amended (Paternity orders)
46Section 54 amended (Parentage tests)
47Section 55 amended (Contents of report)
48Section 56 amended (Right of examination)
49Section 57 amended (Refusal of parentage tests)
50Section 91 amended (Reports as to maintenance)
51Section 145F replaced (Power of court to make maintenance orders in respect of children)
145FPower of court to make maintenance orders in respect of children
52Principal Act
53Section 189 amended (Objection process if direction made on application without notice)
54Section 190 amended (Court may confirm or discharge direction after considering objection)
55Section 193 amended (When assessments or determinations need not be undertaken or made)
56Section 194 amended (Order of, and delaying, respondent’s attendance or engagement)
57Section 196 amended (When assessor must refer respondent back to court)
58Section 198 amended (Court may direct respondent to engage with prescribed non-standard service)
59Section 199 amended (Referral to different service provider)
60Section 200 amended (Referral back to court if programme or service to be delayed or inappropriate)
61Section 201 amended (Terms of attendance at or engagement with non-violence programme or prescribed service)
62Section 203 amended (Referral back to court if continued provision no longer appropriate or practicable or affected significantly by non-compliance)
63Section 204 amended (Report and notice of completion and outcome of programme or service)
64Section 206 amended (Powers if matter brought to attention of Judge)
65Section 207 amended (Notice of non-compliance with direction)
66Section 208 amended (Registrar’s response to notice of safety concerns or non-compliance)
67Section 209 replaced (Judge may call respondent before court)
209Family Court Associate or Judge may call respondent before court
68Section 210 replaced (Respondent called before court)
210Respondent called before court
69Principal Act
70Sections 26 and 27 replaced
26Discharge of caveat
27Vexatious caveat
71Principal Act
72Section 39 amended (Place of safety warrants)
73Section 40 amended (Warrant to remove child or young person)
74Section 74 amended (Court may require parties to undergo counselling)
75Section 169 amended (Right to make representations)
76Section 170 amended (Calling of mediation conference)
77Section 201 amended (Adjournments)
78Principal Act
79Section 25 amended (When court may make orders)
80Section 37 amended (Persons entitled to be heard)
81Section 40 replaced (Costs)
40Costs
82Section 42 amended (Notice of interest against title)
83Section 43 amended (Dispositions may be restrained)
84Principal Act
85Section 15 amended (Orders by consent)
86Section 48 amended (Enforcement of manager’s duty to prepare and file statements)
87Section 66 amended (Calling of pre-hearing conference)
88Section 68 amended (Procedure at pre-hearing conference)
89Section 69 amended (Identification of issues)
90Section 70 amended (Power of presiding Judge to make consent orders)
91Section 72 amended (Privilege)
92Principal Act
93Schedule 4 amended
94Principal Act
95Section 10 amended (Declaration as to paternity)

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Family Court (Family Court Associates) Legislation Bill 2022.

2 Commencement

(1)

The following provisions come into force on the day after the date on which this Act receives the Royal assent:

(a)

section 4, to the extent it relates to new sections 7A, 7B, 7E, and 7F of the Family Court Act 1980:

(b)

subpart 10 of Part 2.

(2)

The rest of this Act comes into force 4 months after the date on which it receives the Royal assent.

Part 1 Amendments to Family Court Act 1980

3 Principal Act

This Part amends the Family Court Act 1980.

4 New sections 7A to 7H inserted

After section 7, insert:

7A Appointment of Family Court Associates

(1)

The Governor-General may, on the recommendation of the Attorney-General, appoint 1 or more Family Court Associates.

(2)

The Governor-General appoints a Family Court Associate by a signed warrant of appointment.

(3)

A Family Court Associate may be appointed on a part-time or full-time basis.

(4)

A person may be appointed a Family Court Associate if the person—

(a)

has, for at least 7 years, held a New Zealand practising certificate as a barrister or as a barrister and solicitor; and

(b)

is, by reason of their training, experience, and personality a suitable person to hold the office of Family Court Associate.

7B Term of appointment of Family Court Associates

(1)

A Family Court Associate is appointed for a term of not more than 7 years and may be reappointed for 1 or more further terms.

(2)

A Family Court Associate may be removed from office by the Governor-General, on the advice of the Attorney-General, for neglect of duty, inability, bankruptcy, or misconduct, proved to the satisfaction of the Governor-General.

(3)

A Family Court Associate may at any time resign by writing addressed to the Attorney-General.

7C Jurisdiction and powers of Family Court Associates

A Family Court Associate has the jurisdiction and powers specified in Schedule 2.

7D Transfer of proceeding to Family Court Judge

(1)

A Family Court Associate may, on the application of a party to a proceeding before the Family Court Associate or on the Family Court Associate’s own initiative, refer the proceeding or a matter in the proceeding to a Family Court Judge if the Family Court Associate is satisfied that because of the complexity of the proceeding or matter it is desirable to do so.

(2)

A Family Court Judge may, on the application of a party to a proceeding that is being, or is to be, dealt with by a Family Court Associate, order that the proceeding or a matter in the proceeding be transferred to and dealt with by a Family Court Judge if the Judge making the order is satisfied that it is desirable to do so.

(3)

A Family Court Judge to whom a proceeding or matter has been referred to under subsection (1) or (2) may—

(a)

dispose of the proceeding; or

(b)

refer the proceeding or matter back to the Family Court Associate with any directions the Family Court Judge thinks fit.

7E Remuneration of Family Court Associates

(1)

A Family Court Associate must be paid, out of public money and without further appropriation than this section,—

(a)

a salary, a fee, or an allowance at the rate determined by the Remuneration Authority; and

(b)

any additional allowances, (including travelling allowances and expenses) in accordance with the Fees and Travelling Allowances Act 1951.

(2)

Expenses may be incurred, without further appropriation than this section, to meet the salaries, fees, or allowances determined under subsection (1)(a).

(3)

For the purposes of subsection (1)(b), the Fees and Travelling Allowances Act 1951 applies as if a Family Court Associate were a member of a statutory Board as defined in section 2 of that Act.

7F Remuneration of Family Court Associates must not be reduced

The remuneration payable to a Family Court Associate must not be reduced while the Family Court Associate holds office.

7G Restrictions on Family Court Associates

A Family Court Associate must not—

(a)

hold any office or engage in any employment or occupation that will, in the opinion of the Governor-General, impair the proper discharge of the functions of a Family Court Associate; or

(b)

practise as a lawyer; or

(c)

be employed by the Ministry of Justice or the Department of Corrections.

7H Immunity for Family Court Associates

No proceeding may be commenced against a Family Court Associate for any act done unless the Family Court Associate has exceeded the jurisdiction of a Family Court Associate or has acted without jurisdiction.

5 Section 15A amended (Application of Contempt of Court Act 2019)

After section 15A(2)(b), insert:

(c)

references to a judicial officer in sections 10, 11(2), and 25(2) include a Family Court Associate.

6 New Schedule 2 inserted

After the Schedule, insert as Schedule 2 the schedule set out in the Schedule of this Act.

Part 2 Amendments to other legislation

Subpart 1—Amendments to Adoption Act 1955

7 Principal Act

This subpart amends the Adoption Act 1955.

8 Section 7 amended (Consents to adoption)

In section 7(8)(a), after “District Court Judge,”, insert “a Family Court Judge, a Family Court Associate,”.

9 Section 8 amended (Cases where consent may be dispensed with)

(1)

In section 8(5A), after “District Court”, insert “or Family Court”.

(2)

After section 8(8), insert:

(9)

In subsections (1) to (5), the jurisdiction of the Family Court may be exercised by a Family Court Judge or Family Court Associate.

10 Section 23 amended (Inspection of adoption records)

In section 23(3)(b), replace “the Family Court” with “a Family Court Associate, a Family Court Judge”.

11 Section 23A amended (Report on application for inspection)

After section 23A(2), insert:

(3)

In subsection (1), the jurisdiction of the Family Court may be exercised by a Family Court Judge or Family Court Associate.

Subpart 2—Amendments to Care of Children Act 2004

12 Principal Act

This subpart amends the Care of Children Act 2004.

13 Section 46E amended (Family dispute resolution mandatory before commencement of proceedings)

Replace section 46E(6) with:

(6)

A Registrar who is unsure, under subsection (5), whether to refuse to accept an application for filing may refer the application and accompanying affidavit to a Family Court Associate or Family Court Judge, and the Family Court Associate or Judge must determine whether the affidavit provides sufficient evidence of either of the matters set out in subsection (4)(f).

14 Section 46F amended (Family dispute resolution after proceedings commenced)

(1)

In section 46F(2), before “Family Court Judge”, insert “Family Court Associate or”.

(2)

In section 46F(3), before “Judge”, insert “Family Court Associate or” in each place.

15 Section 46G amended (Counselling after proceedings commenced)

Replace section 46G(2), (3), and (4) with:

(2)

A Family Court Judge may direct the Registrar of the court to refer the parties to the application to counselling services, or a Family Court Associate may 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 or referral under subsection (2) may only be made if the Family Court Judge or Family Court Associate 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 with both of those matters.

(4)

A direction or referral under subsection (2) may be made—

(a)

at any stage of the proceedings, including by the Family Court Judge when making a final order; but

(b)

once only.

16 Section 46O replaced (Judge may direct party to undertake parenting information programme)

Replace section 46O with:

46O Party may be directed 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, a Family Court Associate or Family Court Judge may direct 1 or more parties to the application to attend a parenting information programme.

(2)

However, a direction may not be made under subsection (1) in respect of a party if that party has undertaken a parenting information programme within the preceding 2 years.

17 Section 46P amended (Purpose of settlement conferences)

In section 46P, before “Family Court Judge”, insert “Family Court Associate or”.

18 Section 46Q amended (Settlement conferences)

(1)

Replace section 46Q(1) with:

(1)

At any time before the hearing of a proceeding—

(a)

a Family Court Associate may convene a settlement conference; or

(b)

a Family Court Judge may direct the Registrar of the court to convene a settlement conference.

(2)

In section 46Q(3) and (4), before “Family Court Judge”, insert “Family Court Associate or”.

19 Section 47 amended (Who may apply for parenting order)

In section 47(1)(d) and (e), replace “the court” with “a Family Court Associate or Family Court Judge”.

20 Section 49A amended (Interim parenting order where parent does not have day-to-day care for, or contact with, child)

(1)

In section 49A(3), replace “the court” with “a Family Court Associate or Family Court Judge”.

(2)

In section 49A(4), replace “the court” with “a Family Court Judge”.

21 Section 59 replaced (Court may order supervised contact)

Replace section 59 with:

59 Order for supervised contact

(1)

Subsection (2) applies if a Family Court Judge—

(a)

is making or varying a parenting order (whether interim or final) 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 Family Court Judge may make an order for supervised contact between the child and that person, and, if the Judge does so, the Judge 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 Judge (for example, a relative, a friend of the family of the child, or any other person whom the Judge considers suitable).

(3)

Subsection (4) applies if—

(a)

an interim parenting order has been made; and

(b)

the parents of the child in respect of whom the interim order is made are parties to the order; and

(c)

under the interim parenting order one of the parents (A) has neither the role of providing day-to-day care for, nor contact with, the child; and

(d)

the other parent (B) is not satisfied that the child will be safe with A.

(4)

A Family Court Associate may vary the interim parenting order to provide that A have contact with the child under the supervision of an approved provide—

(a)

on an application made by A and B jointly; or

(b)

on an application made by the lawyer appointed to represent the child that is undefended.

22 Section 77 amended (Preventing removal of child from New Zealand)

Replace section 77(1) with.

(1)

In this section and sections 76 and 77A, authority means a High Court Judge, District Court Judge, or Family Court Judge or, if no High Court Judge, District Court Judge, or Family Court Judge is available, a Family Court Associate or any Registrar of the High Court or District Court (not being a constable).

23 Section 77A amended (Orders under section 77(3)(c) in respect of children of or over 16 years)

In section 77A(2), replace “court” with “authority”.

24 Section 77B amended (Orders under section 77(3)(c) may be suspended for specified period)

In section 77B(1), replace “or a Family Court Judge” with “a Family Court Judge, or a Family Court Associate”.

25 Section 117 amended (Preventing concealment of whereabouts of child)

In section 117(3), before “Registrar”, insert “Family Court Associate or”.

26 Section 118 amended (Preventing removal of child to defeat application)

In section 118(4), before “Registrar”, insert “Family Court Associate or”.

27 Section 132 amended (Reports from chief executive or social worker)

In section 132(1), replace “the court” with “a Family Court Associate or Family Court Judge”.

28 Section 134 amended (Distribution, etc, of reports under sections 132 and 133)

(1)

In section 134(2), (4), and (5), replace “the court” with “a Family Court Judge or Family Court Associate”.

(2)

In section 134(3), replace “the court is satisfied” with “a Family Court Judge or Family Court Associate is satisfied”.

(3)

In section 134(3), replace “the court may” with “the Judge or Family Court Associate may”.

(4)

Replace section 134(7) with:

(7)

A Judge or Family Court Associate may, if the Judge or Family Court Associate thinks fit, call as a witness the person who made or prepared the report.

29 Section 137 amended (Attendance at hearings generally)

(1)

In section 137(1)(h), after “Judge”, insert “or a Family Court Associate”.

(2)

In section 137(2), after “Judge”, insert “or Family Court Associate” in each place.

30 Section 139A amended (Leave required in certain cases to commence substantially similar proceedings)

(1)

In section 139A(1), replace “the court” with “a Family Court Associate or Family Court Judge”.

(2)

In section 139A(2), delete “of the court”.

31 Section 141 amended (Power to restrict commencement of proceedings if vexatious proceedings previously instituted)

(1)

In section 141(1), replace “to a court if, and only if, the court” with “if, and only if, a Family Court Associate or Family Court Judge”.

(2)

In section 141(2), replace “The court may” with “The Family Court Associate or Family Court Judge may”.

Subpart 3—Amendments to Child Support Act 1991

32 Principal Act

This subpart amends the Child Support Act 1991.

33 Section 99 amended (Declarations in respect of step-parents)

After section 99(5), insert:

(5A)

If an application made under subsection (1) or (2) is undefended, a Family Court Associate may exercise the jurisdiction of the Family Court under this section and grant a declaration.

34 Section 103A amended (Appeal in relation to determination or decision under subpart 3 of Part 5A)

In section 103A(2)(b), replace “the Family Court” with “a Family Court Judge or Family Court Associate”.

35 Section 103B amended (Appeal by respondent from determination under Part 6A)

In section 103B(3)(b), replace “the Family Court” with “a Family Court Judge or Family Court Associate”.

36 Section 103C amended (Appeal from determination under Part 6B)

In section 103C(2)(b), replace “the Family Court” with “a Family Court Judge or Family Court Associate”.

37 Section 104 amended (Application for departure from formula assessment in special circumstances)

In section 104(2)(b)(iii), replace “the court is satisfied” with “a Family Court Judge or Family Court Associate is satisfied”.

38 Section 105 amended (Matters as to which court must be satisfied before making order)

After section 105(6), insert:

(7)

The jurisdiction of the Family Court under this section may be exercised by a Family Court Judge or Family Court Associate, and for the purposes of this section a Family Court Associate has the same powers as a Family Court Judge.

39 Section 106 amended (Orders that may be made)

In section 106(1), replace “court” with “Family Court Judge or Family Court Associate exercising the jurisdiction of the Family Court”.

40 Section 107 amended (Implementation of orders)

In section 107(1), replace “a decision of a court making an order in determination of” with “an order determining”.

41 Section 117 amended (Suspension orders)

After section 117(5), insert:

(6)

The jurisdiction of the Family Court under this section may be exercised by—

(a)

a Family Court Judge; or

(b)

a Family Court Associate having the same powers as a Family Court Judge.

42 Section 184 amended (Charging orders)

(1)

In section 184(1), replace “the Family Court or the District Court” with “a Family Court Judge, Family Court Associate, or District Court Judge”.

(2)

In section 184(4), replace “the court” with “a Family Court Judge, Family Court Associate, or District Court Judge”.

43 Section 185 amended (Charging orders on life insurance policies)

In section 185, delete “on the court”.

Subpart 4—Amendments to Family Proceedings Act 1980

44 Principal Act

This subpart amends the Family Proceedings Act 1980.

45 Section 51 amended (Paternity orders)

After section 51(2), insert:

(3)

If an application made under section 47 is undefended, a Family Court Associate or Family Court Judge may make an order under this section.

46 Section 54 amended (Parentage tests)

After section 54(2), insert:

(3)

A Family Court Associate has the jurisdiction and powers of a Family Court Judge under subsection (1) in respect of an application made by a party to the proceedings.

47 Section 55 amended (Contents of report)

Replace section 55(3) with:

(3)

Where a report on parentage tests has been submitted to a court under this section, the person who made the report must provide a written statement explaining or amplifying any matter in the report if required to do so by—

(a)

a Family Court Judge, on the Judge’s own initiative or on the application of a party to the proceedings; or

(b)

a Family Court Associate, on the application of a party to the proceedings.

48 Section 56 amended (Right of examination)

In section 56, insert as subsection (2):

(2)

A Family Court Associate has the jurisdiction and powers of a Family Court Judge under subsection (1).

49 Section 57 amended (Refusal of parentage tests)

In section 57(1), replace “the court has recommended” with “a recommendation has been made”.

50 Section 91 amended (Reports as to maintenance)

After section 91(5), insert:

(6)

A Family Court Associate has the jurisdiction and powers of a Family Court Judge under subsections (1) and (5).

51 Section 145F replaced (Power of court to make maintenance orders in respect of children)

Replace section 145F with:

145F Power of court to make maintenance orders in respect of children

(1)

An application referred to in section 145A(b) must be heard and determined by a Family Court Judge.

(2)

However, if the respondent consents to the orders sought in the application no hearing is required and the orders sought may be made by—

(a)

a Family Court Judge; or

(b)

a Family Court Associate exercising the powers of a Family Court Judge.

(3)

Before making any orders under subsection (2), the Family Court Judge or Family Court Associate must—

(a)

advise the respondent to obtain legal advice; and

(b)

afford the respondent the opportunity to obtain that advice.

Subpart 5—Amendments to Family Violence Act 2018

52 Principal Act

This subpart amends the Family Violence Act 2018.

53 Section 189 amended (Objection process if direction made on application without notice)

(1)

Replace section 189(3)(b) with:

(b)

the direction is suspended from the date on which the court receives the notice of objection until the objection is dealt with under section 190.

(2)

In section 189(4), replace “the court” with “a Judge or Family Court Associate”.

54 Section 190 amended (Court may confirm or discharge direction after considering objection)

(1)

Replace the heading to section 190 with Direction may be confirmed, varied, or discharged.

(2)

In section 190(1), replace “the court” with “a Judge or Family Court Associate”.

(3)

Replace section 190(2) with:

(2)

If a Judge or Family Court Associate confirms or varies a direction and the respondent is before the court, the Judge or Family Court Associate, as the case may be, must warn the respondent that non-compliance with the direction is an offence punishable by imprisonment.

55 Section 193 amended (When assessments or determinations need not be undertaken or made)

In section 193(3), before “Judge”, insert “Family Court Associate or”.

56 Section 194 amended (Order of, and delaying, respondent’s attendance or engagement)

In section 194(3), before “Judge”, insert “Family Court Associate or”.

57 Section 196 amended (When assessor must refer respondent back to court)

In section 196(3)(b), before “Judge”, insert “Family Court Associate or”.

58 Section 198 amended (Court may direct respondent to engage with prescribed non-standard service)

(1)

Replace the heading to section 198 with Respondent may be directed to engage with non-standard service.

(2)

In section 198(2)(b), (3), (4), and (5), before “Judge”, insert “Family Court Associate or” in each place.

59 Section 199 amended (Referral to different service provider)

In section 199(4), before “Judge”, insert “Family Court Associate or”.

60 Section 200 amended (Referral back to court if programme or service to be delayed or inappropriate)

In section 200(2), before “Judge”, insert “Family Court Associate or”.

61 Section 201 amended (Terms of attendance at or engagement with non-violence programme or prescribed service)

In section 201(5)(b), before “Judge”, insert “Family Court Associate or”.

62 Section 203 amended (Referral back to court if continued provision no longer appropriate or practicable or affected significantly by non-compliance)

In section 203(4)(b), before “Judge”, insert “Family Court Associate or”.

63 Section 204 amended (Report and notice of completion and outcome of programme or service)

Replace section 204(3) with:

(3)

A Family Court Associate or Judge may release a report under subsection (1) to either or both of the following people on any terms and conditions the Family Court Associate or Judge considers necessary or desirable to protect the safety of a protected person:

(a)

a respondent:

(b)

a lawyer acting for a child who, under section 62(2), made the application for the protection order.

64 Section 206 amended (Powers if matter brought to attention of Judge)

(1)

In the heading to section 206, before Judge, insert Family Court Associate or.

(2)

In section 206(1), before “Judge”, insert “Family Court Associate or”.

(3)

Replace section 206(2) to (4) with:

(2)

A Family Court Associate may take all or any of the following actions:

(a)

make a direction under section 188(3)(a) and (b) (that the respondent undertake an assessment for prescribed services, and engage with any prescribed standard service, provided by a service provider, that an assessor determines may be appropriate for and may benefit the respondent):

(b)

suspend, vary, replace, or discharge the direction (to attend a non-violence programme or engage with a prescribed standard service) made under section 188(1)(b) or (3)(b):

(c)

suspend, vary, or replace, or discharge a direction (to engage with a prescribed non-standard service) made under section 198:

(d)

make a direction (to engage with a prescribed non-standard service) under section 198 in respect of the respondent:

(e)

make, under section 199, a referral to a different service provider that is able to provide a non-violence programme or prescribed service to the respondent:

(f)

settle the terms of attendance or (as the case requires) the terms of engagement with the respondent and the service provider under section 201:

(g)

make an order or direction under section 204(3) releasing a report under section 204(1) to either or both of the people specified in section 204(3)(a) and (b) on any terms and conditions the court considers necessary or desirable to protect the safety of a protected person:

(h)

refer the matter to a Judge to consider whether to take the action set out in subsection (3)(b), or to make any other order or direction under subsection (3)(c).

(3)

A Judge may—

(a)

take all or any of the actions specified in subsection (2):

(b)

make, or vary or discharge terms or conditions of, a parenting order (interim or final) under the Care of Children Act 2004 relating to or affecting the respondent (in which case the provisions of that Act apply with all necessary modifications):

(c)

make any other order or direction the Judge thinks fit in the circumstances.

65 Section 207 amended (Notice of non-compliance with direction)

In section 207(1), after “section 188 or”, insert “a Family Court Associate or Judge makes a direction under section”.

66 Section 208 amended (Registrar’s response to notice of safety concerns or non-compliance)

After section 208(2)(a), insert:

(aa)

bring the matter to the attention of a Family Court Associate so that the Family Court Associate may consider whether to exercise the power conferred by section 209 in relation to the respondent; or

67 Section 209 replaced (Judge may call respondent before court)

Replace section 209 with:

209 Family Court Associate or Judge may call respondent before court

(1)

This section applies if the Registrar brings a matter to the attention of—

(a)

a Family Court Associate under section 208(2)(aa); or

(b)

a Judge under section 208(2)(b).

(2)

The Family Court Associate or Judge, as the case may be, may exercise the powers under section 169 to call the respondent before the court.

(3)

If the Family Court Associate or Judge exercises those powers, section 169 applies, so far as applicable and with all necessary modifications, as if the respondent were a witness in proceedings.

68 Section 210 replaced (Respondent called before court)

Replace section 210 with:

210 Respondent called before court

(1)

If a respondent appears before the court under section 208(2)(a) or section 209(2), a Family Court Associate may, after hearing from the respondent, do all or any of the following:

(a)

admonish the respondent:

(b)

confirm, vary, replace, or discharge the direction (under section 188 or 198), or change the terms of attendance at or engagement with the programme or prescribed service under section 201:

(c)

make a replacement direction (under section 188 or 198) that requires the respondent to attend or engage with a further, or different, assessment, programme, or prescribed service:

(d)

refer the matter to a Judge to consider whether to—

(i)

take the action set out in subsection (2)(d); or

(ii)

make any other order or direction under subsection (2)(e).

(2)

If a respondent appears before the court under section 208(2)(a) or section 209(2), a Judge may, after hearing from the respondent, do all or any of the following things:

(a)

admonish the respondent:

(b)

confirm, vary, or replace, or discharge the direction (under section 188 or 198), or change the terms of attendance at or engagement with the programme or prescribed service under section 201:

(c)

make a replacement direction (under section 188 or 198) that requires the respondent to attend or engage with a further, or different, assessment, programme, or prescribed service:

(d)

make, or vary or discharge terms or conditions of, a parenting order (interim or final) under the Care of Children Act 2004 relating to or affecting the respondent (in which case the provisions of that Act apply with all necessary modifications):

(e)

make any other order or direction the Judge thinks fit in the circumstances.

(3)

If a Family Court Associate or Judge confirms or varies a direction, the Family Court Associate or Judge must warn the respondent that non-compliance with the direction is an offence punishable by imprisonment.

(4)

Failure to give the warning required by subsection (3) does not affect the validity of the direction confirmed or varied.

Subpart 6—Amendment to Marriage Act 1955

69 Principal Act

This subpart amends the Marriage Act 1955.

70 Sections 26 and 27 replaced

Replace sections 26 and 27 with:

26 Discharge of caveat

(1)

A caveat is to be treated as discharged 1 year after the date on which it was lodged unless within that time a notice of the marriage to which the caveat relates is given under section 23.

(2)

If the Registrar receives a notice under section 23 of an intended marriage against which the Registrar is aware a caveat has been lodged, the Registrar must submit the caveat to—

(a)

a Family Court Judge; or

(b)

a Family Court Associate; or

(c)

a District Court Judge, if no Family Court Judge or Family Court Associate is immediately available.

(3)

On receiving the caveat, the Judge or Family Court Associate must immediately—

(a)

inquire into the grounds of objection stated in the caveat; and

(b)

discharge the caveat if they are of the opinion that those grounds should not prevent the solemnisation of the marriage.

(4)

If a Judge or Family Court Associate has refused to discharge a caveat, any person may apply to a Family Court Judge for the discharge of the caveat.

(5)

On receiving an application under subsection (4), the Judge must discharge the caveat if the Judge is of the opinion that there is no longer any reason why the intended marriage should not be solemnised.

27 Vexatious caveat

A person who lodged a caveat is liable for damages if the Judge or Family Court Associate considers the grounds on which the caveat was lodged vexatious and unreasonable.

Subpart 7—Amendments to Oranga Tamariki Act 1989

71 Principal Act

This subpart amends the Oranga Tamariki Act 1989.

72 Section 39 amended (Place of safety warrants)

In section 39(1), after “available,”, insert “a Family Court Associate or”.

73 Section 40 amended (Warrant to remove child or young person)

In section 40(1), after “available,”, insert “a Family Court Associate or”.

74 Section 74 amended (Court may require parties to undergo counselling)

(1)

Replace the heading to section 74 with Parties may be directed to undergo counselling.

(2)

In section 74(1), replace “the court may” with “a Judge or Family Court Associate may”.

(3)

In section 74(1), replace “nature specified by the court” with “specified nature”.

(4)

In section 74(3), replace “court” with “Judge, Family Court Associate,”.

75 Section 169 amended (Right to make representations)

Replace section 169(2)(d) with:

(d)

with the leave of a Family Court Judge or Family Court Associate, any other person.

76 Section 170 amended (Calling of mediation conference)

In section 170(1), after “Judge”, insert “, a Family Court Associate,”.

77 Section 201 amended (Adjournments)

(1)

In section 201(1), replace “the court” with “a Family Court Judge or Family Court Associate”.

(2)

In section 201(2), replace “court shall” with “Judge or Family Court Associate must”.

(3)

In section 201(3), replace “the court” with “a Judge”.

Subpart 8—Amendments to Property (Relationships) Act 1976

78 Principal Act

This subpart amends the Property (Relationships) Act 1976.

79 Section 25 amended (When court may make orders)

After section 25(4), insert:

(4A)

If proceedings under this Act are pending, a Family Court Associate has the jurisdiction and powers of a Family Court Judge under subsection (4) if—

(a)

the Family Court Associate considers it appropriate in the circumstances to make an interim order of the kind referred to in that subsection; and

(b)

the parties to the proceedings consent to the making of the order and the giving of directions by the Family Court Associate with respect to the proceeds.

80 Section 37 amended (Persons entitled to be heard)

In section 37(1), replace “the court directs shall” with “a Family Court Judge or Family Court Associate directs must”.

81 Section 40 replaced (Costs)

Replace section 40 with:

40 Costs

(1)

In any proceedings under this Act, a Family Court Judge or Family Court Associate may make any order as to costs that they think fit.

(2)

Subsection (1) is subject to any rules of procedure made for the purposes of this Act.

82 Section 42 amended (Notice of interest against title)

Replace section 42(3)(a) with:

(a)

any application under section 142 of that Act in respect of any notice lodged under subsection (2) may be made to, and determined by, the Family Court, District Court, or High Court; and

(aa)

any application that may be made to a court under section 143 of that Act in respect of any notice lodged under subsection (2), may be made to and determined by a Family Court Associate, a Family Court Judge, the District Court, or the High Court; and

83 Section 43 amended (Dispositions may be restrained)

After section 43(1A), insert:

(1B)

A Family Court Associate has the jurisdiction and powers of a Family Court Judge under subsection (1) to make an order on the application of party B.

Subpart 9—Amendments to Protection of Personal and Property Rights Act 1988

84 Principal Act

This subpart amends the Protection of Personal and Property Rights Act 1988.

85 Section 15 amended (Orders by consent)

(1)

In section 15, replace “the court may” with “a Family Court Judge or Family Court Associate may”.

(2)

In section 15, replace “the court is satisfied” with “the Judge or Family Court Associate is satisfied”.

86 Section 48 amended (Enforcement of manager’s duty to prepare and file statements)

In section 48(1), after “Judge”, insert “or Family Court Associate” in each place.

87 Section 66 amended (Calling of pre-hearing conference)

In section 66(2), replace “any Family Court Judge” with “a Family Court Judge or Family Court Associate”.

88 Section 68 amended (Procedure at pre-hearing conference)

(1)

In section 68(1), after “Family Court Judge”, insert “or Family Court Associate (the presiding officer)”.

(2)

In section 68(3) and (4), replace “Judge” with “officer”.

(3)

Replace section 68(5) with:

(5)

The presiding officer may from time to time adjourn the pre-hearing conference to another time and place.

89 Section 69 amended (Identification of issues)

In section 69(1), (2), (3), and (4), replace “Judge” with “officer”.

90 Section 70 amended (Power of presiding Judge to make consent orders)

(1)

In the heading to section 70, replace Judge with officer.

(2)

In section 70(1) and (2), replace “Judge” with “officer” in each place.

91 Section 72 amended (Privilege)

In section 72(2), replace “Family Court Judge” with “presiding officer”.

Subpart 10—Amendment to Remuneration Authority Act 1977

92 Principal Act

This subpart amends the Remuneration Authority Act 1977.

93 Schedule 4 amended

In Schedule 4, insert in its appropriate alphabetical order:

The Family Court Associates

Subpart 11—Amendment to Status of Children Act 1969

94 Principal Act

This subpart amends the Status of Children Act 1969.

95 Section 10 amended (Declaration as to paternity)

After section 10(6), insert:

(7)

In this section, Family Court means a Family Court Judge or a Family Court Associate.

Schedule New Schedule 2 inserted into Family Court Act 1980

s 6

Schedule 2 Jurisdiction and powers of Family Court Associates

s 7C

1 Jurisdiction and powers: appointment of lawyers and obtaining reports

A Family Court Associate has the jurisdiction and powers of a Family Court Judge to—

(a)

appoint, under any of the following provisions, a lawyer to represent a child who is the subject of, or who is a party to, proceedings:

(i)

section 7 of the Care of Children Act 2004:

(ii)

section 226 of the Child Support Act 1991:

(iii)

section 162 of the Family Proceedings Act 1980:

(b)

appoint, under section 166(1)(b), (c), or (d) of the Family Violence Act 2018, a lawyer to represent a child, or a person lacking in capacity to whom section 67 of that Act applies:

(c)

appoint, under section 37A of the Property (Relationships) Act 1976, a lawyer to represent any minor or dependent children in proceedings under that Act:

(d)

appoint, under any of the following provisions, a lawyer to represent an applicant:

(i)

section 20(1) of the Civil Union Act 2004:

(ii)

section 19(1) of the Marriage Act 1955:

(e)

appoint, under section 124(1) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, a lawyer to represent a care recipient:

(f)

appoint, under section 95(5)(b) of the Evidence Act 2006, a lawyer to put to a witness a party’s questions if the party fails or refuses to engage a lawyer and is precluded by an order made under section 95(2) of that Act from personally cross-examining a witness:

(g)

appoint, under any of the following provisions, a lawyer to assist the court:

(i)

section 130(a) of the Care of Children Act 2004:

(ii)

section 226A(a) of the Child Support Act 1991:

(iii)

section 20(2)(a) of the Civil Union Act 2004:

(iv)

section 162A(a) of the Family Proceedings Act 1980:

(v)

section 166(1)(a) of the Family Violence Act 2018:

(vi)

section 19(2)(a) of the Marriage Act 1955:

(vii)

section 160(a) of the Oranga Tamariki Act 1989:

(viii)

section 65A(a) of the Protection of Personal and Property Rights Act 1988:

(h)

review, under any of the following provisions, a decision of a Registrar relating to the invoice of a lawyer for fees and expenses:

(i)

section 131(3) of the Care of Children Act 2004:

(ii)

section 226B(3) of the Child Support Act 1991:

(iii)

section 20(5) of the Civil Union Act 2004:

(iv)

section 162B(3) of the Family Proceedings Act 1980:

(v)

section 167(4) and (5) of the Family Violence Act 2018:

(vi)

section 124(6) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:

(vii)

section 19(5) of the Marriage Act 1955:

(viii)

section 162(3) of the Oranga Tamariki Act 1989:

(ix)

sections 65(7) and 65B(3) of the Protection of Personal and Property Rights Act 1988:

(i)

order, under any of the following provisions, the parties to reimburse the Crown an amount in respect of the fees and expenses of a lawyer appointed by the court:

(i)

sections 131(4) and 135A of the Care of Children Act 2004:

(ii)

sections 226B(4) and 226C of the Child Support Act 1991:

(iii)

sections 162B(4) and 162C of the Family Proceedings Act 1980:

(iv)

sections 65(8) and 65B(4) of the Protection of Personal and Property Rights Act 1988:

(j)

obtain any of the following reports:

(i)

a cultural, medical, psychiatric, or psychological report under section 133 of the Care of Children Act 2004:

(ii)

a cultural report under section 20A of the Civil Union Act 2004:

(iii)

a cultural report under section 20 of the Marriage Act 1955:

(iv)

a medical, psychiatric, or psychological, or other report under section 76 of the Protection of Personal and Property Rights Act 1988:

(k)

order, under sections 135(2) and 135A of the Care of Children Act 2004, the parties to reimburse the Crown an amount in respect of the fees and expenses incurred in relation to a report prepared under section 132 or 133 of that Act.

2 Jurisdiction and powers: under specific enactments

A Family Court Associate has jurisdiction under the following enactments and, unless otherwise provided, has the powers of a Family Court Judge to exercise that jurisdiction:

(a)

sections 7(8)(a), 8, 23, and 23A of the Adoption Act 1955:

(b)

sections 46E, 46F, 46G, 46O, 46Q, 47, 49A, 59, 132, 134, 137, 139A, and 141 of the Care of Children Act 2004:

(c)

sections 99 (if an application is undefended), 103A, 103B, and 103C (in respect of the latter 3 preceding provisions, extending the time for lodging an appeal), 104, 105, 106, 117, and 184 of the Child Support Act 1991:

(d)

sections 51 (if an application is undefended), 54 and 55 (in respect of both provisions, only on the application of a party), 56, 91, and 145F (if the respondent consents to the orders being made) of the Family Proceedings Act 1980:

(e)

Part 7 of the Family Violence Act 2018 (except section 188):

(f)

sections 26 and 27 of the Marriage Act 1955:

(g)

sections 39 and 40 (in respect of both provisions, as if a Family Court Associate were an issuing officer), 74, 169, 170, and 201(1) and (2) of the Oranga Tamariki Act 1989:

(h)

sections 25 (only with the consent of the parties), 37, 40, 42, and 43 (only on the application of a party) of the Property (Relationships) Act 1976:

(i)

sections 15, 48, 66(2), 68, 69, and 70 of the Protection of Personal and Property Rights Act 1988:

(j)

section 10 of the Status of Children Act 1969.

3 Jurisdiction and powers: generally

A Family Court Associate has the powers of a Family Court Judge to deal with any matter in respect of which a Family Court Associate is conferred jurisdiction by any other enactment.

4 Powers of Registrars

(1)

A Family Court Associate has the jurisdiction and may exercise the powers conferred on a Registrar of the Family Court by or under any enactment.

(2)

A Family Court Associate has the jurisdiction and may exercise the powers conferred on a Registrar of the District Court under sections 77, 77B, 117, and 118 of the Care of Children Act 2004.