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Disputes about which country or city a child should live in after parents separate (relocation disputes) are becoming more common. Travels costs have become cheaper, meaning that an increasing number of people move overseas for work or to live closer to family members. Inter-cultural marriages have also increased. Even within New Zealand, people may want to move cities/towns for a variety of reasons – work, finances or to be closer to family support. In these situations, what are each parent’s rights and obligations and how important are the views/wishes of the child?

 

Who has the right to decide where a child should live?

Both parents generally have a right to determine questions about important matters affecting their child. One of these matters is any proposed changes to a child’s place of residence. Therefore, if one parent wishes to relocate elsewhere in New Zealand or overseas with the child, they will either need the consent of the other or an order of a court before doing so.

This means that in the first instance both parents of the child should discuss any intended move by one parent and try to reach agreement.

What happens if the parents/guardians can’t agree on where a child should live?

If the parents can’t agree, there are two options;

a) The parents can request counselling through the Family Court. The Court will provide 6 free sessions of counselling to see whether any agreement can be reached; or

b) Apply to the Court for directions/an order as to where the child is to live. If this option is chosen, the court may still refer the parties to counselling in the first instance.

A court hearing can be a long and costly experience, so it always preferable if parents can come to their own decision as to where a child is to reside.

How does the court primarily decide where a child should live?

The child’s welfare and best interests is the first and most important consideration. This will involve a fact-specific enquiry, focusing on the individual circumstances of the parents and child.

In that context, the Court will consider eight general key principals set out in the Act, assessing their relevance against the circumstances of the particular case (e.g. not all will necessarily be taken into account).

These eight principals are:

(a) Parents and guardians have primary responsibility for their children’s care, development and upbringing.

Because parents have a shared responsibility for their children, any arrangements for their care should involve input from both parents.

(b) Parents and guardians have responsibility to agree arrangements for their children

Parenting is to continue to be a shared responsibility notwithstanding parental alienation or separation. Where parents live some distance apart (especially where they live in different countries) making and implementing arrangements for shared care or contact are likely to be more difficult.

(c) There should be continuity of care arrangements and the need for continuing relationships with wider family/whanau.

This principle stresses the need for continuity in arrangements for the child. Relocation to a different town, city or country is likely to involve discontinuities in the child’s education, friendships, family and local community.

(d) The child should have continuing relationships with both parents.

(e) There should be co-operation and consultation between parents and guardians.

Consultation may be more difficult if the child moves some distance away. It is likely that the role of the contact parent will be harder to sustain because of the geographical distance.

(f) Relationships with extended family/whanau should be preserved and strengthened.

(g) The child’s safety must be protected.

The safety of the child from violence will largely depend on the people with whom the child will be associating in the new location and the degree to which parents, step-parents, family and other carers will be able to ensure the child’s safety and protection.

(h) The child’s identity, culture, language and religion should be preserved and strengthened.

Are there any other factors the court will take into account?

Yes, while the Court must take into account the eight principals set out above (where relevant), it is not prevented from taking into account any other matters relevant to the child’s welfare and best interests.

Other relevant factors have been held to include:

  • The relocating parent’s capacity to value the input of the other parent, and to facilitate and encourage contact by the other person;
  •  The non-moving parent’s capacity to demonstrate continued interest in the children after relocation;
  • The extent and focus of the conflict between the parents, either underlying or resulting from a decision to relocate;
  • The practical consequences of relocation (transport, costs accommodation) and of declining relocation (financial and employment consequences for both parents;
  • The distance between the two parents homes currently and post-relocation;
  • The impact of granting (or declining) relocation on the children’s family and social support networks;
  • Cultural and spiritual considerations;
  • The children’s previous living arrangements (ie, number of previous moves) and the suggested new living arrangements (ie, whether the children have lived there before);
  • The merit and reasonableness of the parent’s wish to relocate;
  • The emotional wellbeing or psychological welfare of a parent;
  • The nature and quality of the child’s relationship with each parent and the extent to which that relationship maybe affected by relocation;
  • The wishes and needs of the child or children; and
  • The impact on the children of granting or declining relocation.

What if a parent has reason to believe that the other parent may take a child out of the district or country without their consent?

If you believe on reasonable grounds that the other parent may take your child out of the district or New Zealand without your consent, you can apply through the Family Court for an Order Preventing Removal of child from the district/or New Zealand. If the order is made, the other parent will not be allowed to remove the child from the defined area without the Court or the other parents’ permission. Where an order is made that the child not be removed from New Zealand, a listing is placed on the child’s passport which will prevent them from leaving the country.

If you are applying for this order on an urgent basis, you will need reasonable grounds before a judge will make the order. This could include evidence such as the other parent purchasing plane tickets for the child, packing up their possessions or telling people that they are leaving.

Relocation disputes can involve a number of difficult issues. If you are intending to relocate or your child(ren)’s other parent is, we strongly recommend that you seek advice from your lawyer as early as possible.

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Should you need any assistance with this, or with any other Family matters, please contact Lois Flanagan at Parry Field Lawyers (348-8480) loisflanagan@parryfield.com

Dealing with the death of a friend or family member can be taxing but, if you have been appointed a trustee in their Will, there is often more work to do after the funeral. What does it all mean?

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If you are married, or in a civil union or de facto relationship, New Zealand’s Property (Relationships) Act 1976 will have an impact on what happens to your property in the event of separation or death.

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The inclusion of de facto relationships within New Zealand’s Property (Relationships) Act 1976 (“the Act”) effectively means de facto couples receive similar treatment, concerning disputes about property, to those who are married.

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Do you and your married spouse own and live in your home? Are either of you self-employed or involved in some occupation that involves personal exposure to financial risks(e.g. personal guarantees)?  If you answer ‘yes’ to both these questions you should seriously consider registering your home under the Joint Family Homes Act 1964. It could prove to be very cheap protection against losing equity in your home in the event of being sued or bankrupted.

 

What is a Joint Family Home?

Most people think their home is registered as a joint family home because both their names are on the title. This is WRONG! It requires a special application to the Land Titles Office for your home to be registered as a Joint Family Home (“JFH”) under New Zealand’s Joint Family Home Act 1964.

The cost is between $500.00 – $1,000.00 plus GST. Costs vary depending on whether or not you wish to publicly advertise the application. The advantage of advertising is that the protection takes effect within six months rather than the standard two years after application. Also your bank may charge a small fee if you have a mortgage.

What is the Protection?

You will not be protected against secured creditors e.g your mortgagee, but part of your property will be protected against unsecured creditors; e.g. trade creditors to your business, if it is not a company.

Essentially the Joint Family Home Act 1964 creates a protected fund of $103,000 which is safe from unsecured creditors. This fund is to assist in the purchase of a replacement home unless unsecured creditors convince the High Court of New Zealand to exercise its discretion and agree to the sale of the home. (In practice creditors are reluctant to apply to the Courts because of high cost, and the reason that a judge has to balance the general desirability of preserving the matrimonial home for the family on the one hand against the just claims of creditors on the other.)

The Court cannot order the sale of a JFH home if there is less than $103,000 equity in the home. A mortgagee,however, can sell the home (in the event of default) no matter what equity the owners have. The protection is all the more worthwhile if the matrimonial home has previously only been registered in the name of one spouse.

Summary

For quick protection against creditors, some lawyers think a JFH application is more secure than selling the property to a family trust and dealing with the debt back. While this is debatable ,especially at higher levels of equity, it is certainly more affordable. Protection, however, can be lost if it is found at the time of application that the parties were unable to pay all their debts (other than those charged against the house) without recourse to the house sale proceeds.

One way to view the application is as a type of insurance. The insurance is cheap and involves a once only payment which is good for as long as you own the house. It is a simple procedure and the loss is small even if, at the end of the day, protection is not achieved.

Also for a small fee the registration can be transferred to your next home, and registration does not preclude transferring ownership to a family trust later on.

There are a couple of catches : a) you must be legally married to apply for a JFH, and b) if you die, the property automatically goes to the surviving spouse regardless what your Will says!

There are other criteria to satisfy also, so you should contact your Parry Field Lawyer to see if there are advantages for you in registering your home as a Joint Family Home.

 

This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Should you need any assistance with this, or with any other Relationship Property matters, please contact Lois Flanagan at Parry Field Lawyers (348-8480) loisflanagan@parryfield.com

You may be aware that the Domestic Violence Act 1995 provides a means to give protection to any person who has shared a domestic relationship with another person, and who has then been subjected to violence by that other person. But are you aware that there is also an Act that protects those being victimised by someone other than a person with whom they have shared a domestic relationship? 

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Section 15 of New Zealand’s Property Relationships Act 1976 was introduced to address issues of inequality between partners following a breakdown of their relationship. The section empowers the Court, following a division of relationship property, to compensate a spouse/partner if his or her living standards and income will be significantly less than the other party because of the division of functions in the relationship.

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Parry Field Lawyers provide legal advice on a range of trust matters including formation and operation of both family trusts and charitable trusts.

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In the course of trusteeship, trustees make decisions that will impact on the assets of the trust.

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Parry Field Lawyers provide legal advice on a range of trust matters including entry into and operation of family trusts and charitable trusts.

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