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New Zealand: Family Law

We handle international family law cases that concern New Zealand always acting in collaboration with New Zealand or other local counsel as appropriate.

CHILD ABDUCTION TO NEW ZEALAND

By Jeremy Morley

 

New Zealand takes its responsibilities under the Hague Convention on International Child Abduction extremely seriously.

We have successfully represented the "taking parent" in legal proceedings in New Zealand, through local New Zealand counsel, and we have found the New Zealand courts to be zealous in protecting the rights of parents and children and insistent on abiding fully by the country's treaty obligations.

In our experience, New Zealand interprets rights of custody in an extremely broad fashion, in sharp contrast to the approach in most American states. Thus, in some cases, even when the left-behind parent had no custody order and no equivalent rights under the law of the child's habitual residence, but only had rights of access to the child, the courts in New Zealand have equated such rights to rights of custody and have ordered that the children be returned to their original country. On occasion this has yielded harsh results.

The following information is taken from the U.S. State Department's information circular:

New Zealand provides free legal representation for left-behind parents in Hague cases and absorbs all legal costs for requests. If the location of the child and taking parent is unknown, the Central Authority may call on the services of the New Zealand police to locate the taking parent and child. Once the location of a child is known, the file is referred to the nearest District Court. The court appoints a private lawyer, known as a solicitor, to represent the applicant. The solicitor applies to the court for an order preventing the removal of the child from New Zealand and files an application for return, which is then served on the taking parent. An initial hearing will be scheduled within a few days and negotiations for a voluntary return will start. Further hearings will depend on the circumstances of the case and existing court schedules. Official communications and documents should be channeled through the Central Authorities. However, in some cases the New Zealand solicitor may initiate communication directly with the applicant and/or his/her U.S. lawyer.

The left-behind parent will not be required to attend the New Zealand court proceedings unless there are unusual circumstances. The taking parent will be given at least three weeks notice of the final hearing but is not normally present in court.

The application will be heard in the New Zealand Family Court. All judges of the Family Court are familiar with the Convention and New Zealand's implementing legislation. If an order for return is made and the taking parent chooses not to comply, the solicitor acting for the left-behind parent will apply to the court for a warrant directing the police and/or social worker to take control of the child (known as "uplifting") until he/she can be returned to the country of habitual residence.

The Convention requires that cases be heard expeditiously. On average, most cases take between two and four months to resolve. However, the length of time required depends entirely on the circumstances of each individual case. For example, is the location of the child and the taking parent known? Will the taking parent consent to returning the child voluntarily? Are there many arguments and counter-arguments that need to be examined by the court?

New Zealand's Hague access obligations are provided for in the Guardianship Amendment Act of 1991. Upon receiving an access application, the New Zealand Central Authority will appoint a solicitor in private practice who will attempt to negotiate an access arrangement between the two parties. If that is not successful, the solicitor will file proceedings in court.

Child Abduction Prevention

The following is an extract from New Zealand's answers to a questionnaire submitted by the Hague Conference on Private International Law concerning the Hague Convention on the Civil Aspects of International Child Abduction:

1. Please give details of any civil legislative provisions which exist in your State which may act as a deterrent to a potential abductor, or may have a preventive effect.

Section 4 of the Passports Act 1992 provides that --

 

(1)     --

 

(2)     --

(3)     The Minister may refuse to issue a New Zealand passport in any of the following cases:

 

The applicant is required by an order made by any New Zealand Court to remain in New Zealand, or to refrain from obtaining a passport, or to surrender a passport:

2. Please give details of any criminal legislative provisions which exist in your State which may act as a deterrent to a potential abductor, or may have a preventive effect.

 

Section 210 of the Crimes Act 1961 refers to the kidnapping of children. Abduction of child under 16--

 

(1)     Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to deprive any parent or guardian or other person having the lawful care or charge of any child under the age of 16 years of the possession of the child, or with intent to have sexual intercourse with any child being a girl under that age, unlawfully-

 

(a)     Takes or entices away or detains the child: or

(b)     Receives the child, knowing that the child has been so taken or enticed away or detained.

(2)     It is immaterial whether or not the child consents, or is taken or goes at the childs own suggestion, or whether or not the offender believed the child to be of or over the age of 16.

 

(3)     No one shall be convicted of an offence against this section who gets possession of any child, claiming in good faith a right to the possession of the child.

3. Please give details of any court orders which can be obtained during, for example, divorce or custody proceedings which prohibit, restrict or criminalise removal or retention of a child.

Section 20 of the Guardianship Act 1968 provides for the following preventive measures to be taken:

20.Preventing removal of children from New Zealand-- [[(1)Any High Court Judge or District Court Judge or, if no High Court Judge or District Court Judge is available, any Registrar of the High Court or of a District Court (not being a constable) who has reason to believe that any person is about to take a child out of New Zealand with intent to defeat the claim of any person who has applied for or is about to apply for custody of or access to the child, or to prevent any order of any Court (including an order registered under section 22A of this Act) as to custody of or access to the child from being complied with, -- 

(a) May issue a warrant directing any constable or Social Worker to take the child (using such reasonable force as may be necessary) and place it in the care of some suitable person pending the order or further order of the Court having jurisdiction in the case; and  

 

(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 Court for such period and upon such conditions as the Court thinks fit.

(1A)[Section 19B] of this Act shall apply, with all necessary modifications, in relation to every warrant issued under subsection (1)(a) of this section as if every such warrant were a warrant issued under section 19(1) of this Act.

(2) Any person against whom an order under subsection (1)(b) of this section is in force may apply to the Court for the discharge of the order, and the Court, in its discretion, may discharge the order accordingly. 

(3) Every person commits an offence and is liable on summary conviction to fine not exceeding $500 or to imprisonment for a term not exceeding 3 months or to both who, without the leave of the Court, takes or attempts to take any child out of New Zealand -- 

(a) Knowing -- 

 

(i) That proceedings are pending or are about to be commenced under this Act in respect of the child; or 

(ii) That an order of any Court (including an order registered under section 22A of this Act) conferring custody of or access to the child on any other person is in force; or 

 

(b) With intent to prevent any order of any Court (including an order registered under section 22A of this Act) as to custody of or access to the child from being complied with. 

(4) No proceedings for contempt of Court shall be taken against any person in respect of any act to which this section applies.
 
These orders can be obtained ex parte and after hours.

4. Do you have any comments relating to relocation orders? The New Zealand Central Authority is unfortunately not in a position to comment as the Authority performs a facilitative role only.   

5. Do you have any other comments relating to legislative provisions, court orders or administrative measures including any comments on the effectiveness of these provisions, and how often they are used in practice?

6. Please give details of any court orders which can be obtained in emergency situations. Can these orders be obtained out-of-hours and ex parte?

The above orders may be obtained ex parte.

This office handles many cases that have a New Zealand connection, working with counsel in New Zealand as appropriate.

Mr. Morley is quite familiar with New Zealand, having worked on many matters involving children and assets in New Zealand. In addition, Mr. Morley's sister-in-law and brother-in-law live in Methven -- ski country -- in the South Island.

More Information on New Zealand Family Law:
enforcing overseas parenting orders in New Zealand  continue

An interview of Jeremy Morley by a New Zealand website  continue

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