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Getting Free Legal Advice Pt 2: Legal Aid

There’s no such thing as a free lunch, right? In my last post, I showed that needn’t be true of legal advice. Under the Family Legal Advice Service,  you can receive initial legal advice and assistance about your parenting issue, free of charge, from Family Law Results. However, with Legal Aid, things take a slightly different turn. Rather than a free lunch, Legal Aid is probably a case of “eat your lunch now and pay later”.

Whether you are eligible to receive Legal Aid will depend on:

  • Your income;
  • The number of dependents you have – this includes children who do not live with you but for whom you pay financial support such as child support;
  • Your assets; and
  • The type of family law issue you have and the reasons you have for pursuing the issue. Legal Aid is available for most family law issues, including paternity, relationship property, domestic violence and urgent parenting proceedings.

If you want to apply for family Legal Aid, your first step should be to engage a lawyer. Not all lawyers are approved to offer Legal Aid services – you will need one who is an approved Legal Aid Provider in family law. Your lawyer will be able to assess whether you will be eligible to receive Legal Aid and will be able to help you complete the Legal Aid application form.

To apply for Legal Aid, you will need to complete an application form (that your lawyer can give you) and provide your lawyer with:

  • your last three months’ bank statements;
  • proof of your pay or WINZ benefit;
  • a rates notice for any home you may own;
  • proof of your debts (if Legal Aid requests this); and
  • a financial declaration form from any partner or spouse you may have.

Unless your matter relates to domestic violence proceedings, you will also need to pay a $50 user charge to your lawyer.

While you have a grant of Legal Aid, your lawyer will send his or her invoice for work undertaken for you to Legal Aid for payment. However, unless you are seeking assistance for a domestic violence application, Legal Aid will usually require that you repay some or all of the legal costs it pays for you. See what I meant about Legal Aid not being a free lunch? Legal Aid may require you to make automatic payments each week to it. If you sell a home you own or you receive any settlement payment in your legal dispute, you will be required to repay your debt to Legal Aid from the funds you receive. Legal Aid can also charge you interest on your debt.

If you are granted Legal Aid it will be for a very limited amount of funding for each step of your legal matter. It is important to be mindful of this when using the services of your lawyer.

Legal Aid services must be provided by approved lawyers. At Family Law Results, we are approved to provide  Legal Aid for family law matters so give us a call on (09) 297 2010.

Getting Free Legal Advice: The Family Legal Advice Service (FLAS)

Tiana called us recently with concerns about her son, Jarrod, who has lived with his father for a number of years. She was frustrated about a lack of information and consultation about Jarrod’s schooling. Tiana also wanted to secure more time caring for Jarrod. We were able to offer the Family Legal Advice Service (or FLAS) to Tiana. This enabled us to meet with her to provide initial free legal advice to her. During the initial advice session, we were able to help her develop a plan for resolving the issues about Jarrod’s care arrangements.

If you have an issue about the parenting or guardianship arrangements for your child then, like Tiana, you may qualify to receive some free legal advice under the Family Legal Advice Service.

The service is delivered in two parts. At the first session, you will receive legal advice about your responsibilities and options for resolving the issue, the factors a Court would consider if it were deciding the issue and the types of orders it may make. We are able to assist you to develop a plan for resolving the dispute and, if need be, refer you to the appropriate professionals to assist you with mediation (Family Dispute Resolution) and/or Parenting Through Separation.

If you try Family Dispute Resolution and are not able to resolve the issue there, you may wish to make an application to the Family Court. This is where the second part of the Family Legal Advice Service comes into play. We will assist you to fill out the application forms for your Court proceedings. You will usually need to file the proceedings after having received help to work out what forms you need to file and what information you need to include in them.

So, how do you know if the Family Legal Advice Service will be suitable for your situation? When you call us, we will assess your situation but generally, the Family Legal Advice Service will be appropriate if:

  • You meet the financial eligibility criteria. This is based on your income and the number of dependents you have. You can check here to see if you qualify. Your spouse or partner’s income is not taken into account but he or she must have no income to be considered a “dependent”. To be a dependent, your children do not need to live with you but you do need to be supporting their maintenance. For example, Jarrod was considered a dependent of Tiana’s because, even though he doesn’t primarily live with her, she does pay child support for him.;
  • The issue you need assistance with is one regarding the care arrangements or guardianship of children; and
  • There are no urgent issues requiring urgent Court intervention, for example: domestic violence or drug use. In these circumstances, legal advice will likely be available to you under Legal Aid if you are on a low income

FLAS must be provided by approved lawyers. At Family Law Results, we are approved to provide the service so give us a call on (09) 297 2010 if you wish to discuss the Family Legal Advice Service.

Getting Family Violence Information

If the Police were to tell you that your partner has a history of domestic violence against previous partners, would that information lead you to end your relationship?

The aim of New Zealand’s Family Violence Disclosure Scheme is to allow the Police to disclose information about a partner’s previous violence to a current partner so that person may make informed decisions about whether and how they continue their relationship. Our own scheme is based on a scheme in the UK known as “Clare’s Law” after 36 year old Clare Wood who was strangled and set alight in her home in 2009 by her ex-boyfriend. Clare was not aware that he had a history of violence against women, including kidnapping an ex-partner at knifepoint.

The scheme is relatively straightforward. Let’s use an example. Simone is in a relationship with Evan and has recently become concerned about his angry outbursts and her safety during those outbursts. Simone may make a request to the Police to have Evan’s family violence history made known to her. The request can be simply made by Simone attending a Police Station, calling a non-emergency Police phone number or speaking with a Police Officer on the street.

Let’s now consider the situation if Simone’s brother, Tane, and her friend, Wendy, have concerns for Simone’s safety in her relationship with Evan. Tane or Wendy may also make a request to the Police for Evan’s family violence history. However, the Police may decide not to release this information to Tane or Wendy. Instead, the Police may choose to approach Simone directly with the information or another person who can assist with her safety.

In some cases, the Police may decide to proactively inform Simone of Evan’s family violence history without any request having been made.

Of course, there are limitations to the scheme. So much family violence lies below the radar and is not reported to Police. This means Evan may have a history of unreported violence which Simone would not become aware of under the Scheme.

Furthermore, the psychological aspects of family violence mean a woman may be unable to seek out the information. Even if she does acquire the information, she may face considerable psychological and practical issues around bringing the relationship to an end.

At FLR we are concerned about how widespread knowledge of the Scheme is. The Police have information on its website as do a number of other Family Violence support agencies. The Scheme was also reported on at its inception. However, anecdotally, it seems to us the general public are not widely aware of it.

The Scheme has been in place for just over a year. In its first six months, 38 cases had been referred to the scheme for information and the Police opted to proactively disclose information where they were concerned for a person’s safety in 21 cases. Not huge numbers but that still represents 59 people who have received information that may be influential in their decision making about their relationship and the risks it may present to their own personal safety and that of any children they may have.

If you have concerns about domestic violence:

 

New Year, New Separation?

It is that time of year again. A time for reflection, resolutions and new beginnings. For a number, once the Christmas decorations and camping gear are packed away, they must face their marriage or significant relationship coming to an end. For lawyers specialising in family law, the phone rings hot in January as couples separate. Separating may be a decision that has been some time in the making for you but which you have delayed “to get through Christmas”. Possibly spending so much time together over the holidays has shone light on the reality that your relationship has run its course. Perhaps the credit card bills have come in and financial stress has become the final straw for your relationship to bear. Maybe you have been separated a while but are in need of a change to the post separation dynamic between you and your ex.

Whatever the circumstances behind your separation, whether it has just happened or you’ve been separated a while now, here’s four resolutions that you might like to consider:

Check: Is it Really Over? If you are newly separated or considering separating, take pause and check whether the relationship is really over. Separating is hard to come back from and has significant financial and personal implications for you, your spouse, any children you may have and your wider whanau. Being proactive and considered about the decision is important. Now is not the time for being impulsive. Spending some time with a lawyer to get an overview of what lies ahead if you separate allows you to make a fully informed decision. Counselling, individual and joint, may assist you to work through the issues that trouble your relationship and avoid separation. If it cannot be avoided, counselling may help you to be on the same page about how you both want to make this significant change to your family.

Doing it Differently: Most of us have seen and heard the horror stories. Separated friends or family members who have spent years and tens of thousands of dollars litigating issues about their children and property. Many couples aim for a simple, amicable separation only to end up in ever increasing conflict which they feel unable to bring themselves back from. Gwenyth Paltrow and Chris Martin’s “conscious uncoupling”? You could be forgiven for having cynically thought this is impossible. But, what if it weren’t? What if transitioning you and your family through a separation could be undertaken in a way that aims to focus on your important concerns and your children while avoiding rising acrimony?

Lawyers trained in Collaborative Practice work with their clients to achieve dignified, equitable outcomes that are personalised to their unique needs. Whether you are on the cusp of separating or are well along the path, it isn’t too late to look up a Collaborative professional and explore whether this process may be right for you and your family.

Save Money – Use the Right Professionals for the Right Stuff: One of the challenging issues around separations and legal issues is facing your altered financial position. So, it really doesn’t make sense spending more than you need to on legal costs, does it?

One way you can protect yourself from excessive legal costs is to ensure you are using the right professionals to deal with the right issues. This may mean having multiple professionals on board but ultimately, having each do what their skill base best equips them to do should mean reduced costs for you overall. Many professionals have lower charges than lawyers.

A common example is counselling. Clients often will come to their lawyer bearing the heavy emotion that accompanies separation. They share this with their lawyer (often at length). The sheer weight of their emotional state can mean they are unable to properly take on board the information the lawyer provides, let alone carry out any fruitful decision making about the legal issues. Do this several times and you end up with a large bill with little to show for it in a legal sense.

While most lawyers will be empathetic to your situation and may even be very good listeners, their skill base is in the law not mental health. Better to spend time and (usually less) money working with a counsellor or psychologist to help you work through the emotional challenges you are facing. These professionals usually have lower charges and you’ll have the right professional to support you. When you see your lawyer, you’ll have better focus on the legal issues and ultimately will likely spend less. Got finance/budgeting/business issues? Issues with assisting your child through a separation? Same deal!

Take the Higher Road: Struggling to move out of the conflict zone with an ex who seems to know just how to rile you up? Tired of constantly having to battle together over most issues? For the sake of your emotional wellbeing and the wellbeing of your children, its time to change that. While we’ve all heard the saying “It takes two to tango” and it is easy to believe change can’t happen unless the other person changes, it also only takes one to stop the tango. Perhaps what is required is a change in the method or timing of your communications. If you still have legal issues between you, deploying a process like Collaborative Practice or Mediation will usually not inflame the conflict between you in the same way litigation does.  It may be as simple as resolving to always take the higher road when faced with a challenging situation with your ex. For some, this may mean having to get the expertise of a conflict or divorce coach, counsellor or psychologist to give you the tools to respond differently when your ex presses those buttons.

Do Something You Couldn’t do Before: There is a lot of compromise in marriage but guess what? If you are separated you can choose to do things you couldn’t before your separation. For one lady I knew, this meant getting a dog which was something she couldn’t do during her marriage as her husband was allergic to dogs. For another client, it was travel while another chose to throw lavish dinner parties. I have heard another client speak positively about now simply being able to watch what she wants on the telly. Whatever it is for you, these small choices around shaping and constructing your post separation life can be liberating. Even if the decision to separate was not yours and you are struggling with it, making choices to do things you’ve had to compromise on previously can help you to create a silver lining and see the future more positively.

The feeling of renewal and fresh starts at the beginning of the year gives us a valuable opportunity to assess whether life is how we want it to be and to take action. Resolutions like those above will have long term implications for the wellbeing and future relationships for you and your children so its well worth putting some careful thought into them. Most of all, be gentle with yourself and those around you. We’re all just trying to do our best!

Thinking of separating? Separated and wanting to resolve your legal issues in a respectful way out of Court? Arrange a consult in person or by Skype/phone with Family Law Results by calling 0064 9 297 2010.

“How do I resolve this before Christmas?”

With only four weeks until the holiday season, do you still not have a confirmed agreement about how the children will split the holidays between you and your ex? Have you tried discussing it together, even recruiting family or lawyers to try to help broker an agreement but to no avail? Given my previous comments about how unlikely it is to be able to get Court time urgently before Christmas, you may be feeling slightly panicked about how and whether this issue is going to be resolved.

Never fear – there are other options for resolving parenting issues as quickly as possible before the holidays. I’ve previously blogged about Mediation and Collaborative Practice as alternatives to Court. When there are issues to be resolved urgently, these processes can be accessed and worked through quicker and more cost effectively than court proceedings can. Both processes have a focus on the future and on your children. These processes come with the added bonus that each are focussed on achieving resolution without inflaming relations between you and your ex. How perfect is that for the holiday season?!

To undertake Collaborative Practice, you will each need to engage a lawyer who is trained in the process. You can find collaboratively trained lawyers here. Engaging a collaborative lawyer and arranging a collaborative meeting can still likely occur before the holidays if you get things underway now. Collaborative Practice is focused on finding solutions that meet the future needs of you, your ex and your children in a respectful, dignified way. Your lawyers are there to advise you and support you through the process. Forget what you’ve seen on television courtroom dramas – collaborative lawyers are trained to facilitate the process in a way that is mindful of the future co-parenting relationship you will need to share and which allows you to find more creative solutions than the Court may well be able to impose.

A mediator may well be able to meet with you and your ex relatively quickly if you initiate mediation now. The mediator will guide you both through a discussion about the issues, help you consider the options and put your children’s needs front and centre. The mediator cannot decide what will happen for you and your children – that rests with you. I like to think of my role of mediator as being like the GPS in your car. I can guide you to a destination but ultimately you are in the driver’s seat and choose where to go and how to get there! In New Zealand, mediation can be accessed in one of the following ways:

  • contacting a mediator privately. You can find mediators through the Family Law Section of the New Zealand Law Society.
  • Contacting the Family Dispute Resolution Centre in Auckland.
  • Your local FDR supplier, particularly if you believe you qualify for government funded mediation. FairWay and FamilyWorks are good starting points.

The holiday season is said to be the season of peace and goodwill. I urge you to choose to use a resolution process that encourages both those things – and avoids Court delays!

shutterstock_352783865Want to look further into Collaborative Practice or Mediation? The Family Lawyer, Selina Trigg, is an experienced mediator and Collaborative Lawyer so give her a call on (09) 297 2010 to discuss what option may be appropriate for your situation.

‘Tis the Season: Sharing parenting at Christmas

Well, there it is – less than 30 days until Christmas! Are you sorted? You may be the type to have your Christmas gifts bought and wrapped, the menu planned and the relatives organised 6 months ago. You may have more of a “leave it to the last minute”, shop on Christmas Eve and forget to defrost the turkey approach. Whatever the case is, there is one thing that shouldn’t be left a minute longer – sorting out the parenting arrangements for your children at Christmas.

Some separated parents may have a standing arrangement, either in an order, parenting plan or through simply doing the same thing each year.  If this is you, then it is likely to be a simple matter of politely confirming this arrangement with your ex.

For those who don’t have such an arrangement in place or wish to try to negotiate something different, you need to start resolving this NOW. Forget about Christmas shopping or getting that ham glaze recipe from your aunt. This takes priority. If you leave it any longer, you will likely be unable to find anyone who can assist you to resolve the issue at short notice.

So, what should you do? First things first, before raising the issue think about what is important for you and what you think may be important for the children and their other parent. Then consider a range of options that you can propose to the other parent which may satisfy those important concerns.  There are a range of issues that you will likely have to consider, including:

  • What are the children’s views?
  • Do both parents celebrate Christmas? In some families, the holiday is more significant to one parent than the other.
  • How far away will you be from each other on Christmas Day? This will impact on how easily arrangements can be made for your children to spend time with each parent.
  • What arrangements with other family and people important to your children are there?
  • What happened last year? If the children missed out on time with one parent last Christmas, perhaps this year they should get time with that parent.
  • What family traditions do each parent’s families have around Christmas?
  • Are their family members or loved ones for whom this may be their last Christmas?
  • What ages and stages are your children at? For very young children, shorter blocks of contact may be more appropriate.

If you cannot resolve the issue with your ex then you will need to consider getting outside assistance quickly. This may be in the form of a trusted family member or friend who can facilitate the negotiations between you. Alternatively, you may need to approach a lawyer or seek Family Dispute Resolution through one of the FDR providers in your area. However, doing this sooner rather than later, will help to ensure you can find someone to assist you.

Once you have your arrangements in place, the following may help you survive the holiday season parenting arrangements:

  • Try to involve your children in the planning so that they have a say in what happens both in terms of what time they spend with each parent but also what they do during their time with you. However, don’t put the emotional burden of “deciding” on their shoulders.
  • Adopt a positive and encouraging attitude with your children towards them spending time with your ex and their family.
  • Communicate with your ex about important end of year celebrations and activities, such as end of year assemblies, Christmas concerts and parties and about the arrangements for attending these. This should be a time when your children get to enjoy having both their parents and loved ones attend such events without feeling stressed about how the adults are going to behave!
  • If you aren’t having the children on Christmas Day, this can be difficult. Try to ensure you make lots of plans to have a full day with other loved ones and friends or even volunteering at Mission. This way you will have less time to dwell on the fact you are without your children while also giving you the opportunity to create new Christmas traditions and build upon other relationships.
  • If you are having the children on Christmas Day, ensure they get contact with their other parent on the day by phone or Facetime/Skype etc. Arranging in advance for the children to have time with the other parent as close to Christmas Day as possible also means the children know they will be having a Christmas celebration with that parent.
  • Christmas is meant to be a magical time for children so take steps to ensure it is that way for your children. Parents arguing or sniping about each other or their families, spending hours in a car traipsing across the countryside between families (only to stop briefly before doing it again) and feeling pressured to ‘favour ’a parent is not the stuff magical Christmas memories are made of.
  • Carefully consider Santa and gift giving. Where possible, consult with your ex about where Santa will be delivering to (if he visits your children), the appropriateness of certain presents (should your 7 year old really be getting an iPhone?) sharing the cost of presents or setting a limit on how much you each spend. Also, think about what message it sends to your children and their other parent if you encourage and support your children to buy or make that parent a gift.

Above all,  a reasonable approach will go a long way towards making life easier at Christmas for yourself and your children. This isn’t always easy to achieve amid the emotion of a separation. However, the build up to Christmas can be stressful enough of itself so take a deep breath and be prepared to circumvent a lot of stress by being reasonable and compromising. Sometimes goodwill and a spirit of compromise and inclusiveness is what is required. ‘Tis the season after all.

Having difficulty agreeing on holiday parenting arrangements? Give us a call at Family Law Results on 09 297 2010 or at lawyers@familylawresults.co.nz (but don’t leave it too late!). 

When Saving Legal Fees Costs You

Rebecca had always been frugal. She and her husband, Brian, had scrimped and saved hard for everything they had. Where possible, they preferred to DIY as much as possible. This included avoiding legal costs.

Rebecca had been referred to me because she and Brian had separated and things were a bit of a mess.

When they met, Rebecca owned a home which she had bought her previous husband out of. She loved this home and although the mortgage payments were a struggle, she felt it was worth it to provide a family home for her young children. When she met Brian, he didn’t have any personal assets. He had a family trust which owned some investments which largely ticked along. The trust was for Brian’s children’s benefit. Brian moved into Rebecca’s home and they worked hard to pay down the mortgage.

I asked Rebecca whether she and Brian had completed a contracting out agreement to set out how their property was to be divided if they separated. Rebecca explained to me that she had trusted Brian completely and besides, she didn’t want to spend money on lawyers for something she was sure (at the time) would never happen.

Brian was now claiming half the home.

One of the reasons Rebecca and Brian had separated was due to the stress of financial issues within the Pomegranate business they established during their marriage. It had been Brian’s idea and Rebecca felt she really got dragged into it. Having said that, she enjoyed working in the business together with Brian. She felt they were a good team, trying to build this investment for their future. Things hadn’t been going well with the business recently, largely due to a particularly cold winter coupled with Brian being ill and unable to carry out some of the heavier labour required.

Brian borrowed $60,000 to prop the business up. He needed Rebecca to sign documents for the loan. She wasn’t happy about this and certainly didn’t want any borrowing that may threaten the family home. Brian assured her this wouldn’t happen and that the home was safe. Rebecca thought perhaps she should see a lawyer but she explained to me that she didn’t want to spend money on lawyer’s fees especially when money was already tight. Besides, she trusted Brian and he went as far as to write down on a piece of paper that should anything happen in their relationship, he alone would take responsibility for the loan.

Brian was now claiming that Rebecca should be liable for half the loan as it related to their family business. To make matters worse, he has told Rebecca there is a caveat against the home to secure the loan.

Shortly after the loan, Rebecca and Brian separated. Rebecca didn’t want to spend money on legal costs so she set about negotiating their property division directly with Brian. Rebecca desperately wanted to keep the family home. She got a valuation and arranged finance so she could pay Brian the price he had said he would consider. Brian then told her he had changed his mind. They kept trying to negotiate together and now some months had passed. The property market had increased considerably and the house value increased by another $80,000. The higher value of the home meant Rebecca could no longer afford to buy Brian out of the home.

At that point, she decided she needs the assistance of a lawyer to help her resolve things.

After meeting with Rebecca, I pondered the “cost” of her having “saved” on legal fees in the past. Ideally, Rebecca would previously have had a lawyer:

  • assist her to complete a contracting out agreement between her and Brian when they began living together. This could have preserved the home (or at least Rebecca’s initial interest in it) as her separate property. Instead, the law treats it as the family home which is to be equally divided. This has cost her $500,000.
  • advise her about the loan being incurred and how to create a legally enforceable agreement so Brian takes sole responsibility for paying the loan back. This has cost her $30,000.00.
  • assist her in early negotiations after separation and properly documenting the initial agreement for Rebecca to buy the home. The $80,000 increase in the house price has cost her the opportunity to keep her beloved home for her and her kids – for the sake of saving a few thousand in legal costs.

Her “savings” on legal fees over the years of probably less than $10,000, has cost Rebecca $530,000 in the divorce and the ability to keeping her beloved home.

I get it. Who wants to spend money on a lawyer, especially if money is tight. Legal costs are often a grudge purchase in the same way as a trip to the dentist is. However, just as spending a little on getting a filling now will save you pain and thousands on a later root canal, spending a little on good legal advice up front can save you a considerable sum later.

 

For help finding a cost effective solution to your family law issue, give us a call at Family Law Results on 09 297 2010 or email us at lawyers@familylawresults.co.nz.

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Dividing up the Kiwisaver

Ngaire was one unhappy woman. Her friend had warned her that she was about to lose half her carefully squirelled away Kiwisaver and superannuation funds to her husband, Greg. Greg and Ngaire had recently separated, a decision largely driven by Ngaire because she couldn’t carry on living with Greg’s “irresponsibility” any longer.

Ngaire had married Greg 5 years ago after a very whirlwind relationship. It was all quite a rush for Ngaire at the time. She was 45 years old when they met. Long before that she had watched friends marry and have families and had come to a level of acceptance that perhaps this wasn’t going to happen for her. So, meeting Greg was a pleasant and exciting surprise to Ngaire.

Ngaire, being keenly aware of her single status and need to financially provide for herself, was quite the planner and relatively conservative in her spending habits. Greg, on the other hand, was spontaneous and adventurous. Ngaire found his “it’ll be right, live for the day” approach to life intoxicating and exciting at first but, as time wore on, it began to wear thin and became a source of conflict for them. She now regards their early relationship as “a period of temporary insanity” for her.

Ngaire was a great saver. She had a solid sum already saved in her superannuation scheme when she met Greg. As soon as Kiwisaver was introduced, she joined and made the maximum contributions she could so there was a nice amount there too. On the other hand, Greg had little savings and no superannuation or Kiwisaver when they met. After they married, Ngaire managed to get Greg on board with Kiwisaver but he only ever made the minimum contribution from his wages as he felt it important to have money to spend on life’s pleasures as well.

Ultimately, Ngaire found it just too hard “living on the edge” from one adventure to another with Greg and she moved from their home. She thought they had come to relatively amicable agreements over a coffee together about dividing the home, their bank accounts and the chattels and that they were sorted. However, at a BBQ the other night, her friend announced that superannuation and Kiwisaver were also relationship property to be divided. This sent Ngaire scurrying to see me in a panic. All Ngaire could see was her years of careful spending and saving for her retirement (while Greg was “off having fun, being irresponsible”) being all for nothing if Greg could walk off with half of it. She was particularly appalled at the prospect of him “frittering it all away” on travel and mountain biking gear.

I first checked whether Ngaire, being the financially risk averse person she is, had entered into a contracting out (pre nup) agreement with Greg. This may have preserved her retirement savings as her own property should they separate. No such luck – so giddy with the romance of it all, Ngaire really didn’t feel one was needed and besides, getting Greg to a lawyer would have been almost impossible.

So, what was to happen to Ngaire’s superannuation and the Kiwisaver she and Greg had?

Ngaire’s friend was partly right.

Relationship property law treats superannuation and Kiwisaver funds as relationship property that to be divided equally between both spouses. Ngaire was beside herself – she had significantly more in her Kiwisaver and superannuation than Greg did because of the contributions she had made before they met!

However, all was not lost. The law recognises that often superannuation savings may have been in place before the relationship. In such cases, the relationship property amount that is to be divided is limited to the portion of the superannuation’s value that is attributable to the relationship. With an actuary’s help we were able to calculate what portion was attributable to Ngaire’s pre-marriage savings and what portion related to the marriage. It was still a bitter pill for Ngaire to swallow that her higher dedication to saving for retirement during the marriage was going to benefit Greg. After some discussion, she recognised that during the marriage she had benefitted from his income that was spent on their adventures and travel and ultimately she was relieved that her pre marriage retirement savings were to remain hers.

If, like Ngaire, you have a relationship property issue you need help to resolve then give Family Law Results a call on (09) 297 2010.

Culture and Adoption

The family who had just appeared in Court were all in tears as we walked out. There were hugs and expressions of gratitude all round and a huge sense of relief. A monumental event had just occurred for this family. My clients had successfully adopted a child born to other family members. The reasons why this arose are long and unnecessary to dwell on here. Suffice to say, the child’s parents were fully supportive of the adoption and a long family tradition and culture of informal and formal adoptions within the family preceded the child.

When I am approached to assist with an adoption of a child by members of its family, I begin by cautioning them that the Family Court may not grant an adoption. This is due to a concern that an adoption will legally distort the child’s relationships. For example, take an adoption by a grandmother of her daughter’s daughter (her granddaughter). After the adoption, in the eyes of the law, the grandmother is now the child’s mother, the child’s mother is now her sister, the child’s siblings are now her nieces and nephews… and so it goes on.

To avoid this distortion, parenting and guardianship orders are often used instead of an adoption.  Such orders don’t legally change the family relationships but give the family members who are caring for the child the rights of a guardian to make decisions about the child’s welfare and rights to the child’s day to day care. The child’s biological parents retain their guardianship and legal rights to seek contact with the child.

But what, as for my clients, the security and certainty of adoption is really what the family all seek?  There is no absolute rule against family members adopting a child of their family. The concern about the distortion of family relationships is just one factor to be taken into account by the Court. The Court must decide if the adoption will promote the child’s welfare and in doing so, must balance a range of factors.

Increasingly, one of the factors that may be relevant is the culture of the child and parties. This was a particularly important consideration in the adoption I began this blog referring to. What role, culturally, do wider family members have in the raising of a child? What is the relevant cultural perspective of adoption?

Over 20 years ago, the High Court indicated that it could not see why full regard shouldn’t be had to the cultural attitude to adoption of the family concerned. Time has marched on since then and with it, our society is increasingly multicultural. In step with this, the Court has recognised in several cases (including the case of my clients above) that adoption cannot be viewed through a European or Pakeha lens alone. An adoption that may be considered inappropriate in a European setting may well promote the welfare of a child in a Maori, Pasifika or Asian family.

The Adoption Act is widely regarded as outmoded and overtaken by changes in society’s values and make-up. This recognition of other cultural perspectives is an example of how the Courts will attempt to make the Act work as best as possible in response to those changes.

Got a query about adoption? Give us a call at Family Law Results on ph 0064 9 297 2010 or email us at lawyers@familylawresults.co.nz.

“Can She have my Child Adopted?”

Steven called me in a very stressed state. He had split up with his girlfriend, Angela, a few months ago. Angela is pregnant with their child – a girl due in 3 months. Steven is looking forward to becoming a father even though he and Angela are no longer together as a couple. Steven has just learned that Angela has contacted Child, Youth and Family about having their baby placed for adoption after birth. Steven told me that his biggest fear was that Angela would have his daughter adopted without him having any say in the matter. Can she do this?

Before an adoption can occur, the consent of the child’s father is required if he is (or was) married to the child’s mother or if he is (or was) a guardian of the child. If the father is not married to the child’s mother or isn’t a guardian of the child, the Family Court has a discretion to require a father’s consent to the adoption if it considers it “expedient” to do so. The Family Court will usually find it is expedient to obtain a father’s consent to adoption if the father has been involved in the support or upbringing of the child or if he has taken steps to apply for guardianship or parenting orders for the child.

Steven and Angela weren’t married but it is likely he will be a guardian of their child. As a guardian, his consent to any adoption would be required. A father will be a guardian of a child if he is registered on that child’s birth certificate as the child’s father. There is a legal obligation on both parents to register their child’s birth and have their details recorded on the birth certificate. The exceptions to this are very limited. A father can also become a guardian by being appointed as such by the Family Court.

Steven was concerned about how the Court will know of his role as the child’s father. Child, Youth and Family (CYF) is not legally obliged to identify or make contact with the birth father. That doesn’t prevent Steven from initiating contact with CYF about the proposed adoption although he may be frustrated by CYF having a duty of confidentiality to the child’s mother. Furthermore, an adoption cannot proceed without the birth certificate having been issued and provided to the Court. Furthermore, a child’s mother needs to provide evidence to the Court about who the child’s father is and CYF is encouraged to include information about the father in its report to the Court.

As Steven could see, the birth certificate registration process shortly after the birth of his daughter was important in establishing him as a guardian with the legal rights and responsibilities that come with that role. If you are a father who is concerned about your child being adopted or about your legal rights and responsibilities as a father then the best course of action is to seek advice sooner, rather than later.

If you have an adoption issue or question about your rights as a parent, then call Family Law Results on (0064) (9) 297 2010 or send us an email to lawyers@familylawresults.co.nz to discuss how we can help.