LAWS310 Take in Notes PDF

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LAWS310 – Relationship Property and Family FinanceQuestion 1 is worth 35 marks and is compulsory. It is a detailed problem question that contains more than one legal issue. It involves you having to give advice to a client.Question 2 is worth 45 marks and is compulsory. It is a detailed problem ques...

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LAWS310 – Relationship Property and Family Finance Question 1 is worth 35 marks and is compulsory. It is a detailed problem question that contains more than one legal issue. It involves you having to give advice to a client. Question 2 is worth 45 marks and is compulsory. It is a detailed problem question that contains more than one legal issue. It involves you having to write a judgment as the Family Court Judge adjudicating the case. – 1 hour 20 mins 

Example question was about when de facto relationship began, division of property, and spousal maintenance

Question 3 and Question 4 are both worth 20 marks each and you must choose one of them to answer. They are both law reform focused essay questions. Question 3 is about unequal sharing of relationship property under the Property (Relationships) Act 1976. Question 4 is about diverse relationship structures under the Property (Relationships) Act 1976.

Child Support Act 1991 Section 4, Key Principles Act has 11 objects: 1. Affirm the right of children to be maintained by their parents 2. Affirm the obligations of parents to maintain their children 3. Parents to provide level of financial security according to capacity to provide financial support and levels of care  Court or IRD will take into account how much money you have/earn and your resources  A lot of discussion about whether this is taken into account enough 4. Parents with a like capacity to provide financial support for their children should provide like amounts of support  Supposed to be vaguely equivalent where possible 5. To provide legislatively fixed standards by which the level of financial support to be provided by parents should be determined  Lecturer says that this section is more accurate to what actually happens  This act does not prevent you from making your own arrangement with the other parent, but if you apply through IRD this is how it would work  The formula is fixed, very complicated, only way to understand is to use the IRD website 6. Affirm the right of careers to receive financial support from parents  Not always parents, carers also  Sometimes applies to grandparents, or other people who are looking after children on the behalf of others

7. Enable carers to receive support without needing to go to court  "supposed" 8. Ensure that equity exists between parents/carers for costs of supporting children 9. Ensure that obligations to birth and adopted children are not extinguished by obligations to stepchildren 10. Ensure that cost to the State of providing financial support for children offset by a fair contribution from liable parents 11. Provide a system whereby child support can be collected by the crown and paid to those entitled to the money Example - Aroha and Hiroki Aroha and hiroki have been together for two years. They have one child (Pania aged 1). Aroha is an accountant and earns 150k per ear. Hiroki is a hairdresser and earns 60k. Pania is in Aroha's care for six nights a week and is with Hiroki one night a week. Aroha wants Hiroki to pay child support. Is this fair?  IRD calculator gives amount of $379.40 per month  An important factor is how much time Aroha has to look after the child Same scenario:  But now Pania is with Hiroki for two nights every week  How much should Hiroki pay?  IRD calculator says he doesn’t have to pay any child support Same scenario:  But now H earns $600,000 per year  Pania is with Hiroki for two nights a week  How much should H pay?  Calculator says $933.40 per month Same scenario:  But now Pania is with Hiroki for one night a week  Calculator says $1,321.60 per month Same scenario:  Now Pania is with H 6 nights a week  Calculator says $295.80 month 

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After relationship ends, each party is liable to maintain the other to the extent that such maintenance is necessary to meet their reasonable needs o Important words here "reasonable needs" and "necessary" BUT ONLY IF the party cannot practicability meet their needs because of their ability to become self-supporting due to: o Effects of the division of functions o Their likely earning capacity o Any other relevant circumstances

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Obvious example is someone who has given up their career to look after children now when they break up the person at home cant earn the money Other examples is if they have to look after children at home after the relationship

OR   

The responsibilities of each spouse for the ongoing daily care of dependent children The standard of living while they lived together The undertaking of a reasonable period of education

Spousal maintained is argued through court, as opposed to a calculator  Spouses must assume responsibility for meeting their own needs "within a period of time that is reasonable in all the circumstances of the particular case" Is this fair? Anna and Sam have been together for 15 years and have 3 children (Joanna 8, Susie 6, Jo 2). Both Ana and sam are pilots. Sam gave up work when the children were born to raise them and support annas career. They have now broken up. They have divided all of their assets 50/50. Sam also wants spousal maintenance.  Anna earns 450k  Sam cant get work due to covid  She is earning 30k working for countdown  She cant find a house to rent  In court case would submit list of reasonable needs for costs Relationship Property - The Key Principles Property (Relationships) Act 1976 a) To reform the law relating to relationship property b) To recognize the equal contribution of both parties to relationship partnership c) To provide for a just division of property when relationship ends by separation or death, while taking account of the interests of any children Principles: a) Men and woman have equal status and their equality should be maintained and enhanced b) All forms of contribution to the relationship are treated equally c) A just division of property considers the economic advantages/disadvantages for both parties d) Matters should be resolved as cheaply, simply, and speedily as "consistent with justice" Each of the spouses or partners is entitled to share equally in: a) The family home b) The family chattels c) Any other relationship property  Where marriage of short duration (less than 3 years)  The share of each spouse in the relationship property is to be determined  No order for division of defecto relationship of less than 3 years unless: o Child in relationship

o o

The applicant has made substantial contribution Failure to make order would be injustice

Lecture 2 – Child Support Child Support Options 1. Single Individual - Choose to support child alone  Some people just prefer no support and want to do it alone  Often woman who have escaped violent relationships and don’t want the father involved at all - non legal remedy 2. Parents - Private agreement - not enforceable  Nothing to stop this, not enforceable - may often be easier to sort it out privately  May end up paying more or less, always an option 3. Parents - voluntary agreement - inland revenue to enforce  Parents come up with their own agreement, then have it formalized by IRD 4. Formula assessment via Inland Revenue Voluntary agreements and IRD - Child Support Act 1991, Part 3  Parties can request private child support agreements be administered and enforced by IRD - S47  Agreements qualify if require the payment of a periodical sum (weekly, fortnightly, or monthly) towards maintenance of qualifying child - S48  Minimum amount $10 per week ($520 per year) - S49  Commissioner of IRD shall accept a voluntary agreement if satisfied the application is properly made - S57  If accepted, the annual rate payable is that in the agreement and the agreement can be enforced under the Act - S58  Voluntary agreements are a good middle ground between letting people sort it out for themselves and also making it enforceable Some people have more choice than others - S9 

If you receive any form of social security benefit

AND 

provide at least 35% of a child's ongoing daily care

THEN  

you must apply for a formula assessment of child support The state wants this assessment made and the person will be paying, most likely to the state to try to recover some of the money form that benefit - state has a vested interest in that child support

Some Exceptions Beneficiary not required to apply for a formula assessment if:  Insufficient evidence of legal parentage  Seeking a formula assessment would create risk of violence  Parent died before assessment made

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Child conceived via incest or sexual violation Some other compelling circumstance

The Child Support Act 1991 Basic Premise of the Scheme  Parents must financially support their children regardless of whether they see their child  How much you pay is connected to how much you see your child - but having to pay is not  If you never ever see your child you still have to pay  “Natural and adoptive parents have a perpetual and almost exclusive obligation towards their children.” Child Support Act 1991  Majority of Act came into force 18 December 1991  Fully operational 1 July 1992  Massive reforms in 2015 via the Child Support Amendment Act 2013  Biggest change was the formula  A new Child Support Amendment Bill currently before the Social Services and Community Select Committee  Talks about changing penalty rules, provides a new definition of income, introduces 4 year bar to revisit child support,  Select committee report due back by the end of the year Objects of the Act: Child Support Act 1991, s4  Rights of children  Obligation of parents  Means of parents  Legislatively fixed standards  Rights of carers  Equity between parents/carers  Children v Stepchildren  Recoup State costs  Create system for collecting/paying Child Support (act) is very unpopular - lawyers, judges, those who work at IRD  “Perhaps no piece of family law legislation has generated as much hostility as the Child Support Act”  Bill Atkin “Financial Support: Who Supports Whom” in Mark Henaghan and others (eds) Family Law Policy in New Zealand 2020 How does child support work?  Qualifying child +  Liable parent or parents

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+ Someone applies for a formula assessment + Crazy formula = Child support calculation.

Who is a qualifying child? Child Support Act 1992, s5 A child qualifies for child support if:  Under 18; or  18 and enrolled and attending school; and  Not married, or in a civil union or de facto relationship  Not financially independent  NZ citizen or ordinary resident here  Or Australia where there is a reciprocal agreement  May be about to change, NZ signed international convention on child support - will make them be able to be enforced in different countries Who is liable to pay child support? Child Support Act 1992, s6 Child support may be sought from any person who:  Is a parent of the child; and  Who is a NZ citizen or ordinary resident in NZ; or  A country that NZ has a reciprocal agreement with  Some genetic parents are not liable to pay child support BUT some non-genetic parents are liable to pay Who counts as a parent? Child Support Act 1991, s7(1) Some genetic parents are not liable to pay child support BUT Some non-genetic parents are liable to pay child support  Name entered into Register of Births  Party to marriage that produced a child  Person who adopts a child  Court finds you to be a parent  Court made paternity order against you  The natural mother of the child  Court has appointed you to be a guardian (by reason of being the child's father) If you meet one of these criteria: Child Support Act 1991, s7(2)  BUT Commissioner is satisfied that you are NOT actually the child's parent  THEN you are not a parent for the purposes of the Child Support Act

Step Parents – Child Support Act s7(1)(h) 

Don’t automatically count, UNLESS Family court declares you be a step parent of the child Child Support Act 1991, s 99  A parent may apply to the Family Court for a declaration that another individual is a step parent 

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Or you can apply for such a declaration from a Family Court if you wish to be a recognized step parent The Court will have regard to: Child Support Act 1991, s99(4)  Extent to which they assumed responsibility for the child  Whether they did so knowing they were not the “natural parent”  Liability of other people to maintain child  Whether they ever lived with the child's parent  Whether they were ever the child's guardian

(4) In determining whether to grant a declaration that a person is a step-parent of a child, the court shall have regard to the following circumstances: (a) the extent (if at all) to which that person has assumed responsibility for the maintenance of the child, and the basis on which that person assumed that responsibility, and the length of time during which that person has discharged that responsibility; and (b) whether that person assumed or discharged any responsibility for maintenance of the child knowing that that person was not the natural parent of the child; and (c) the liability of any other person to maintain the child; and (d) whether or not that person was ever living with a parent of the child in a marriage, civil union or de facto relationship; and (e) whether that person has at any time been a guardian of the child. S994

Who can apply for a formula assessment? Any parent or carer of a qualifying child may apply to IRD for a formula assessment - s8 - Application must (s10)  Identify at least 1 qualifying child; and  Identify at least 1 person who provides at least 35% of child's ongoing care; and  Identify at least 1 person as a potentially liable parent of each qualifying child; and  Include each child's IRD number Refusal to make a formula assessment  IRD MUST refuse to make a formula assessment for the applicant and the other parent are living together in a marriage, civil union, or de facto relationship - s13A  Assumption that a child has 2 parents and that those parents are living apart - s7B BPS v MNS [1998] NZFLR 289 (HC)  Eight year old child who was born during the parties marriage  Husband couldn’t have children (tried artificial insemination with donors etc, but was unsuccessful)  Parties agreed wife should conceive the child with a friend (naturally)

The husbands name was entered on birth certificate  After separation the wife allowed the husband to have no contact o Discussion that the break up was due to the fact that the wife wanted to have another child using the same method  The mother tried to get husband declared to be a step-parent for child support purposes  Husband wanted to get his name removed from the birth certificate Family Court:  Husband assumed responsibility for child even though he knew he was not the genetic father  Wife made contact with the child impossible  Child was having contact with genetic father  Therefore, unjust to find husband to be a step-father High Court:  Step-parent question to be determined as at date of hearing (not at time of break up)  Both parties “express extreme hostility” towards each other  Wife’s motivation based on money – wanted the child support  Non-existent relationship for six years ( broke up when child was two)  Not in child’s best interests  The appeal was dismissed – he was not a step parent 

S v W [2006] NZFLR 925 (FC)  Two children aged 16 and 14  Both children were born during the parties marriage  Husband not genetic father of younger child – he was the result of an affair o Father had always suspected this because the kid was a ginger  They found this out early in the relationship, because wife got pregnant again after husband had had a vasectomy  Husbands name then removed from his birth certificate  Wife sought child support for both children – but was denied for the younger child  Wife sought order that husband was step-parent “The child support act is a fiscal statute that is intended to ensure that financial responsibility for children assumed during the course of a relationship continues in an equitable fashion afterwards” Family Court:  Had supported child for at least 10 years knowing he was not the genetic father  Continues to have contact with child  Husband wants the genetic father to contribute  Focus on wife’s “infidelity” and “deception” “The provision of support “knowing that he is not B’s natural father.. has resulted in Mr W feeling resentful, bitter, and abused by the system.. in the end one has to say that enough is enough. After providing support for the son of his wife’s lover for 12.5 years his dues are paid. It is the fathers turn to pay”

The Child Support Formula

How is the formula assessment calculated? Initial formula related things to note  Income cap $159,083  If earning more will be assessed with this as your income  Minimum annual amount of child support $950 Core child support formula (i% - c%) x p  i% - The liable parents income percentage  C% - The liable parents care cost percentage  P - The child's expenditure amount for a qualifying child

I% - The liable parents income percentage The Liable Parents Income Percentage - s33  A parents income percentage, in relation to a qualifying child, is the percentage figure derived by dividing the persons child support income amount (as demonstrated under section 34) by the sum of the child support amounts, in relation to that child, of all parents of the child. A Persons Child Support Income Amount - S34  A parents child support income amount is the persons adjusted taxable income for the child support year minus each of the following:  The persons living allowance for the child support year (s35A)  The sum of any dependent child allowances to which the person is entitled under section 35B  Any multi-group allowance that relates to the child and to which the person is entitled under section 36 for the child support year This tries to incorporate different family situations and take these into account A Persons Living Allowance - s35A  Living allowance - $20,223  Living allowance if receiving supported living payments - $23,117  Minimum rate of child support (annually) - $954  Inflation factor - 1.9% Dependent Child Allowance - s35B C% X (e / n) - This is to calculate the deduction allowed for a dependent child C% - The liable parents care cost percentage in relation to the dependent child E - Is the amount, determined in accordance with the child expenditure table that applies based on a) The combined child support income amounts of both parents; and b) The number of children in the child support group; and c) The age group of those children

N: is the number of children in the same child support group as the child

Multi-group allowance - s36

SO, to calculate the parents liable income – first take the total after tax income, and then deduct (living allowance), (dependent child allowance), and (Multigroup allowance). This gives the liable parents income percentage.

C% - The liable parents care cost percentage – s 30

Care cost percentage

P - The child expenditure amount – s 30(2) (e/n) E: is the amount, determined in accordance with the child expenditure table, that applies to the parent based on: a) The combined child support income amounts of both groups; and b) The number of children in the child’s child support group; and c) The age group of those children

N: is the number of children in the same child support group at the child

Departure Orders – s 104 When either the paying party or the receiving party is unhappy with the formula assessment they may apply to the Family Court for a departure order  Before applying for a departure order – you must first seek an administrative review with the Commissioner of Inland Revenue (Part 6A) The Family Court must be satisfied that: - s105  1 or more grounds for departure exists; and  It would be "just and equitable" or "otherwise proper" to vary...