new zealand law society legal executive diploma

Report
NEW ZEALAND LAW SOCIETY
LEGAL EXECUTIVE DIPLOMA
LITIGATION LAW AND PRACTICE
Term 2, Week 4
Revision of Chapter 3 & 4
Paternity
• Law presumes husband is father of any
children born during marriage
• Child’s right to financial support and
inheritance depends on paternity
• Father can sign birth registration documents
• Can apply to Family Court if there is a dispute
as to paternity
Paternity
• Who can apply for paternity order:
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Mother of child
Day-to-day carer of mother if mother under 16
Social worker (if mother gives written consent)
Parent of mother/guardian of child/Social Worker/anyone
with the Court’s leave if mother has died or abandoned
child
• Putative/alleged father cannot apply
• Normally need to apply before child turns 6 unless
alleged father has admitted paternity or has helped
maintain child or lived with mother in last 2 years
Establishing Paternity
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Paternity order made under s 51 FPA 1980
Registered as father on birth certificate
Married and child conceived during marriage
Adoption
Deed of Acknowledgment of Paternity
Step-parent declaration under Child Support Act
Court-appointed guardian
Declaration under Status of Children Act (alleged
father CAN apply under this Act)
Establishing Paternity
• Mother must show she had sexual intercourse
with alleged father around time of conception
and not with anyone else
• Usually done via affidavit evidence
• Corroborative evidence helpful but not required
• Proof on balance of probabilities
• Court can recommend blood/DNA testing
• Court cannot force alleged father to undergo
testing but can draw adverse inference from
refusal
Procedure
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Interview mother
Check that mother or alleged father reside NZ
Obtain copy of child’s birth certificate
Apply for legal aid
Write to alleged father and see if willing to acknowledge paternity
or undergo testing
If no response, prepare and file Application for Paternity Order,
Affidavit in Support and FC Info Sheet
Arrange blood/DNA testing if alleged father willing
Obtain corroborative evidence (Dr, family)
Request hearing
Advise client of hearing date
Brief witnesses for hearing
Care of Children Act 2004
• Key terms = parenting order, contact, day-to-day care,
guardianship
• Welfare and best interests of child are paramount (s
4)
• Children should be consulted and decisions affecting
them should happen in age-appropriate timeframe
• Lawyer for Child presents child’s views and advocates
in their best interests
• Focus on parents’ responsibilities rather than rights
• Parenting order covers child until age of 16 but
guardianship continues until 18
Guardianship
• Covers important decisions such as child’s name, education,
religion, where they live, major medical treatment
• Mother is automatically a guardian
• Father can be guardian if lived with mother between conception
and birth or if on birth certificate
• Parent can appoint someone as testamentary guardian under their
Will
• New partner of parent can become guardian if shared day-to-day
care for a year and other parent agrees
• Court-appointed guardian
• Guardianship of Court (overrides all other guardianship rights)
• Guardians can be removed by the Court but only in extreme cases
Parenting Orders
• A parenting agreement can be turned into a Court order
• If no agreement, counselling then mediation then full Court
hearing
• A parent, guardian, member of child’s family or anyone with leave
of Court can apply for parenting order
• Day-to-day care = daily responsibility for child
• Contact = time with non-custodial parent; can be supervised
professionally or by family member/friend; non-supervised
whether phone calls, emails, face-to-face
• Breaches of parenting order can be dealt with via admonishment
(formal Court telling-off), ordering payment of bond,
varying/cancelling order, warrant to uplift child, compensation
Parenting Orders
• Documents required:
– Application for Parenting Order or Application for
Appointment as Additional Guardian
– Affidavit in Support
– Family Court Information Sheet
• Judge will consider Lawyer for Child’s views
and may also order Social Worker’s or
psychologist’s report to help make decisions
Hague Convention
• International agreement about procedure
when child abducted to or from NZ
• NZ is signatory but only works if other
country is also signatory
• If aware someone trying to remove child
from NZ, can apply to FC for urgent nonremoval order and also border alert through
Interpol (CAPPS listing)
Child Support
• Payment made by non-custodial/liable parent to support children
• Aims of Child Support Act 1991 are that parents take financial
responsibility for children when relationships end and contribute
to DPB
• Child support payable until child turns 19 or gets married or
becomes financially independent
• Can be claimed from parent who is NZ citizen or normally lives in
NZ or in country with reciprocal agreeement
• If custodial parent is on a benefit they must apply for child support
• If custodial parent not on a benefit then parents can enter into
own agreement
Pros and Cons of Current System
• Pros:
– Efficient collection through IRD
– Obligation to support existing children if form new relationship
– Clear formula
• Cons:
– Self-employed parents can lower/avoid liability via creative
accounting
– Can avoid liability by going to country with no reciprocal agreement
– New partner and children may suffer financially
– Overseas income not included
– Departure orders complex and time-consuming to obtain
– Administrative problems, ie arbitrary assessments
Spousal Maintenance
• S 63 FPA 1980
• Provision of money by one partner to another to meet their
reasonable needs once relationship has ended
• Meant to be temporary measure only
• Court prefers periodic payments but can order lump sum
• For fixed term only and end if person enters new relationship
• Court looks at the likely earning capacity and living standards of
each partner and whether any disparity has been caused by
division of functions during relationship, ie Mum has stayed at
home and raised the kids so needs to retrain/study in order to
become self-supporting
• Can also apply for child maintenance distinct from child support
Voluntary Maintenance Agreements
• Need to be in writing and signed by both
parents, provide for periodic payments at
agreed annual rate and at least $10 per week
• This can then be registered with IRD
• Cannot enter voluntary agreement if one
parent on benefit and child support has been
applied for
Domestic Violence – Protection Order
• Can apply for order against current/ former partner, family
member or someone in close personal relationship
• Needs to show physical, sexual and/or psychological abuse
(threats, intimidation, damage to property, control over
movements/finances)
• Order automatically includes non-violence conditions and
non-contact conditions if parties not residing together
• Automatically covers any children residing with protected
person
• Respondent required to attend anger management
• Bailiff or Police will serve the order
• Penalty for breach of protection order is max 2 y prison
Domestic Violence – Other Orders
• Occupation Order:
– Right to stay in family home where owned
– Court will look at accommodation needs of parties and any children
– Need to already have protection order or be applying for one at
same time
– Can obtain one urgently if physical or sexual abuse and delay
would/might cause risk of harm
• Tenancy Order – as above but is right to tenancy
• Ancillary Furniture Order:
– Need to already have protection order or be applying for one at
same time
– Can apply for furniture order on its own if leaving property or with
occupation or tenancy order
– Right to specified furniture/household items
Restraining Orders
• Harassment Act 1997
• Establishes criminal offence of harassment
(where victim fears for their safety) and provides
for protection from civil harassment through
restraining orders
• Harassment – unwanted pattern of behaviour
over 12m period including at least 2 specified
acts, ie watching, loitering, accosting, unwanted
contact
• Typical situation is intrusive neighbour
Specialist Courts and Tribunals
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Employment Relations Authority:
– Established by Employment Relations Act 2000
– Investigative body
– Mediation is first port of call
– Establishes facts and makes determination on merits without undue regard
to technicalities
Employment Court:
– Equal in status to High Court
– Above Employment Relations Authority
– Chief Judge plus 2 other Judges
– Can appeal to Court of Appeal with leave
Environment Court:
– Established under Resource Management Act 1991
– Environment Judge and Commissioners
– Deals with resource consents, regional and district plans
– Limited right of appeal to High Court
Specialist Courts and Tribunals
• Youth Court:
– Generally deals with youths aged 14-16 (District Court
if 17 or older)
– Can deal with 10-13 y/o if charged with murder or
manslaughter
– Children under 10 cannot be prosecuted
– Charges may be transferred to DC or HC if YC penalties
insufficient
– Specialist Judges and Youth Advocates
– Family Group Conference must be held
– Private and informal
– Appeal right to HC
Specialist Courts and Tribunals
• Maori Land Court:
– Jurisdiction over Maori land
– Hearings may be conducted in Maori and along Maori protocols
– Appeal right to Maori Appellate Court
• Waitangi Tribunal:
– Permanent Commission of Inquiry
– Makes recommendations on actions/omissions by Crown which
breach Treaty of Waitangi
• Coroners Court:
– Investigates deaths which are violent, unnatural, w/o known
cause, suicides or while in state custody
– Can summons witnesses, order post-mortems, hold inquests
Specialist Courts and Tribunals
• Tenancy Tribunal:
– Adjudicates on residential tenancy disputes
– Residential Tenancies Act 1986 establishes dispute resolution
service and bond fund
– Ability to mediate prior to Tribunal hearing
– Parties usually self-represent unless dispute >$6k or other party
agrees to lawyer or Tribunal allows lawyer
– Tenancy Adjudicator hears evidence presented and makes
decision
– Can appeal to DC if dissatisfied but not if less than $1k in dispute
– Tribunal may formulate case stated for HC on point of law
Specialist Courts and Tribunals
• Disputes Tribunal:
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Quick, private and inexpensive way of resolving small civil disputes
Can deal with claims up to $15k as matter of course or $20k if both parties agree
Deals with claims in contract/quasi-contract and tort
Most common issues are car accidents and debts
Cannot deal with undisputed debts, ie debt recovery/enforcement
Can order payment of money, repairs, change or cancel agreement, dismiss claim,
order money is not owed
Private hearings
Decisions made on substantial merits and justice of the case
Have regard to the law but not bound to apply technicalities
No lawyers unless Tribunal specifically authorises
Relaxed evidential rules
Court bailiff will serve Notice of Claim (don’t have to organise service yourself)
Insurers need to be notified
Very limited ability to apply for rehearing or appeal (unfair/prejudicial)
Next Week
• No class as Amber will be in Wellington for
work

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