Family Court of New Zealand

Affidavits of Applicable Law

Practitioners should note that most Central Authorities now require that an affidavit of the applicable NZ law accompany an application for the return of a child to New Zealand. The applicable law being the law which gives the applicant 'rights of custody' to the child removed from New Zealand. A right of custody under the Hague Convention on Child Abduction includes the right to determine the child's place of residence. Thus a guardian as defined in s6 of the Guardianship Act 1968 has a right of custody. The Court of Appeal in Dellabarca and Christie held that an applicant has a right of custody if they have any qualifying rights of custody relating to the care of a child.

Affidavits are required to be sworn by practitioners personally. Below is a precedent which practitioners may find useful. However, it will need to be amended to suit the facts of each application.

I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., Barrister & Solicitor of the High Court of New Zealand swear:

1. I am a Barrister & Solicitor practising in . . . . . . . . . . . . . . . . . . . . . . . . . . and have had. . . . . . . years experience practising family law. I am conversant with the principles of New Zealand law in relation to guardianship and custody. I have been instructed to act for . . . . . . . . . . . . . . . . . . . . . . . . . . . . the mother of the child the subject of this application.

2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . has alleged that the above-named child was removed from New Zealand and retained in Australia in breach of her rights of custody in respect of the above-named child.

3. The applicable law in New Zealand is the Guardianship Act 1968 and the Guardianship Amendment Act 1991 which was amended by the Guardianship Amendment Act No2 1994.

4. Section 9 of the Guardianship Amendment Act 1991 states: