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LAWS408 Family Law

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LAWS408 Family Law

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Course Code: LAWS408
University: University Of Waikato

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Country: New Zealand

Questions:

1.Robert comes to see you for advice.  Advise him on the following issues, supporting your advice with relevant statutory provisions and any applicable case law.
a.Assuming it was a contracting out agreement that Robert had Maree sign, under the circumstances can it be set aside? Does the farm belong solely to Robert or does it form part of their relationship property?
 
b.Explain to Robert whether or not he is a guardian of the children and what guardianship means.
 
c.Robert does not want Lisa to be part of a test group for epidiolex and opposes any blood transfusions.  What can he legally do to try and prevent this medical treatment and procedure?
 
d.Robert wants the children returned to New Zealand immediately, he says that Maree has kidnapped them.  Advise Robert whether he meets the criteria to apply to have the children returned to New Zealand under the Hague Convention on Aspects of Child Abduction.
 
e.Robert wants a parenting order for day-to-day care of the children.  Advise Robert as to what matters the court would consider in determining whether or not the children should be in his day-to-day care or Maree’s day-to-day care and apply this to Robert and Maree’s situation.  
Include whether or not in your opinion Robert would be successful in an application for a parenting order granting him day-to-day care of the children?

2.Eddie seeks your legal advice. Support your advice with relevant statutory provisions and any applicable case law.
a.Eddie wants to have access with Saffy.  Who gets to make the decisions about Eddie’s access with Saffy?  Is there an order that Eddie can apply for so she can have access with Saffy?
 
b.Eddie admits to you that she has just found out she is three months pregnant.  The social worker does not know this yet.  Eddie is worried about CYFS trying to take her baby off her at birth.  Advise Eddie about what law would apply to her baby under the Children Young Persons and their Families Act 1989, and whether or not in your opinion the child will remain in her care?

Answers:
1.a.According to the case study, the issue is whether that firm was belonged to Robert or not.

The Property (Relationships) Act 1976 (‘PRA’) governs the division of relationship property in NZ.   It is a code.  See s4 PRA. It comes into effect either on separation or death.See Part 1 of the PRA.  It sets out a guide to the entire Act to explain its use and a guide to the various parts.  It is a very user friendly piece of legislation. Purpose of the Act as per s1M: Recognise the equal contribution of two people to a relationship. Provide for just division taking into account interests of any children. Principles of the Act as per s1N: Equal status to men and women. All forms of contribution to a relationship are treated as equal. A just division considers the economic advantages or disadvantages of parties. Questions under the Act should be resolved as inexpensively, simply and speedily as is consistent with justice. Division of matrimonial property was historically governed by Matrimonial Property Act 1963 which saw division of matrimonial property on basis of contributions to property.
Classification of property subject to division continued to disadvantage wives because of the division of functions within the marriage. Focus of legislation was on sharing of assets, not on remedying inequalities arising from the division of functions within the marriage. Act only applied to married couples. As per the case study, the contract which belongs to Robert which was mentioned in the agreement, Maree signs that out of pressure where she has no idea about the content of the agreement. The Property (Relationships) Act 1976,Part 4 of Division of relationship property, the Sec-11 defines that, each of the spouses or partners is entitled to share equally in family home, family chattels; and any other relationship property. Therefore, as per the agreement Robert is the sole owner of the firm and Maree is his spouse, so she has equal rights in the firm. The firm was his grandfather’s which he divided to his grandchildren and the part of the farm where Robert and Maree doing their business was his farm and Maree has equal rights. In the case,  B v F [2010] NZFLR 67 (HC)HC appeal against FC decision that parties were not in a qualifying de facto relationship. Ms B and Mr F formed a “relationship” while Mr F was supporting Ms B through her separation and divorce in 1994.    Mr F helped find a flat for her and her child that was close to his parent’s home.  Ms B and her children resided in one home. Mr F frequently stayed the night, socialised and cooked at that address.  Mr F’s clothes and personal possessions remained at his parents’ home, and he would shower and change his clothes there. FC Judge found relationship existed from May 1994 to November 2004.  Question was whether the nature of the relationship was de facto or not. FC considered:  

“Common residence” – to reside must mean that a person spends exclusive time  at that place, no.
Sexual relationship – yes
Financial affairs – Mr F provided financial support but Ms B claimed DPB.
Joint property purchases – no
Mutual commitment to shared life – “no coincidence of time when mutually committed”
Public aspects – yes.

b.as per the Care of Children Act 2004,  Part 2 Guardianship and care of children, Sec – 14 defines the guardianship which stated that guardianship of a child means having in relation to the child—all duties, powers, rights, and responsibilities that a parent of the child has in relation to the upbringing of the child: every duty, power, right, and responsibility that is vested in the guardian of a child by any enactment: every duty, power, right, and responsibility that, immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968, was vested in a sole guardian of a child by an enactment or rule of law.
The sec- 16 defines the exercise of guardianship where guardian must decide the child’s name, place of residence, medical treatment, education, child’s culture, language, and religious denomination and practice. They always exercise duties, powers, rights, and responsibilities in relation to the child, whether or not the child lives with the guardian, unless a court order provides otherwise. According to case study, Robert is father of their children.
c.According to the case study, Robert does not want Lisa to be part of a test group for epidiolex and opposes any blood transfusions because he thinks they need to wait for proper medical studies before they jump on the cannabis band-wagon.  He is anti-cannabis, always has been.  He has read a lot on the topic.  He is clear there is still much more research to be done about cannabis before he would allow his daughter to use it. When Maree went to hospital and late for home, Roert was totally against of the treatment. He has already read about the Adelaide test group.  He thinks it’s total quack medicine with no scientific or medical reasoning at all. As per Care of Children Act 2004,  Part 2 sec-16 of the act defines that a guardian always decide the child’s name, place of residence, medical treatment, education, child’s culture, language, and religious denomination and practice. Therefore, for the caring of his child he has right to prevent the medical procedure as a guardian. However the Sec- 37 defines that Immunity of health practitioners administering certain blood transfusions without consent which provides the right to Maree who is the mother of the child.
 
d. Now, Robert wants the children returned to New Zealand immediately, he says that Maree has kidnapped them. Here, Maree has the equal guardianship towards her child therefore, the mother takes her child with them which was no kidnapped but she did not informed her husband because he was against of the medical treatment of their daughter because he has already read about the Adelaide test group.  He thinks its total quack medicine with no scientific or medical reasoning at all.
The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH) that provides an expeditious method to return a child internationally abducted by a parent from one member country to another. The primary intention of the Convention is to preserve whatever status quo child custody arrangement existed immediately before an alleged wrongful removal or retention thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16. Therefore, Robert has rights to apply to have children returned to New Zealand.
If the country the child has been removed to is one of the 97 contracting states then an application can be made under the Hague Convention for the return of the child. In the sections of 94-124 of COCA which provide for “International Child Abduction” and incorporate the articles of the Hague Convention. Family Court Judges have the jurisdiction under s101 of COCA to exercise powers that are reasonably necessary to carry out its functions and duties under the Convention. Section 102 of COCA sets out the requirements for an application for the return of a child to NZ.  The following must apply:

The other country is a ‘contracting state’.
Removal of the child has breached the person’s rights of custody to the child.
Those rights of custody were being exercised at the time of removal.
The child was habitually resident in NZ immediately before the removal.

In the case of Gross v Boda [1995] NZFLR 49 it is stated that:

Parents separated but living in Arizona.  There is a parenting order in force which is registered in Arizona and records the child is in the custody of the mother but the father has visitation.
The mother leaves Arizona and arrives in NZ with the eight year old daughter in September 1993.  The father applies under the principles of the Hague Convention for the return of the child to her place of habitual residence as she has been wrongfully removed.  
The Family Court considers that although the removal was wrongful it was not in breach of his right of custody as the mother had sole custody under the order.  The decision was made in April 1994, some 7 months after removal of the child.  
The father appealed to the High Court which sent the matter to the Court of Appeal for the issue to be determined.
Parents separated but living in Arizona.  There is a parenting order in force which is registered in Arizona and records the child is in the custody of the mother but the father has visitation.
The mother leaves Arizona and arrives in NZ with the eight year old daughter in September 1993.  The father applies under the principles of the Hague Convention for the return of the child to her place of habitual residence as she has been wrongfully removed.  
The Family Court considers that although the removal was wrongful it was not in breach of his right of custody as the mother had sole custody under the order.  The decision was made in April 1994, some 7 months after removal of the child.  
The father appealed to the High Court which sent the matter to the Court of Appeal for the issue to be determined.

e.Now, Robert wants a parenting order for day-to-day care of the children. As a guardian both mother and father both are guardians of the child. Therefore it can be stated that according to sec- 17, Robert has the guardianship of his children therefore he have the right to take care of his children day to day care. When he refuse to take medical steps for lack of his information of his daughter’s disease, Maree had taken responsibilities of her daughter and went to another place without informing her husband. However the sec- 49A of the Care of Children Act 2004 defines the Interim parenting order where parent does not have day-to-day care for, or contact with, child where the parent get the order to meet with their children when they are out of the country.
 
2.a.According to the sec- 14 of CYFS Act child or young person in need of care or protection. It can be any one of the sub-sections listed, or it could be a combination of them that apply to the child and their particular situation. If MVCOT seek to remove a child from the care of their parents or family and instead have the child placed under the ‘custody’ of MVCOT, then the social worker will identify the sub-sections of s14 that apply and refer to these in their application for orders under the CYFS Act. When a report of concern is received it will be categorised and given a time response pathway, depending on the seriousness of the matters alleged. Each child or young person referred for a child and family assessment or investigation has a safety and risk screen completed within 24 or 48 hours where there is high risk and no immediate protection available and within 7 or 20 working days for all other cases. It is logged in their computer system know as CYRAS which holds all information relating to a child and the family.  This notification then becomes part of the CYFS record for that child and family.  An application may be made to the court on a without notice basis, see s276 of Family Courts Rules 2002. There are two orders usually sought by CYFS: A declaration that the child is in need of care and protection.  See s67-73 & 83 of CYFS Act. A custody order.  See s78-82 & 101-107 of CYFS Act.
According to the case study, Eddie wants to have access with Saffy. The social worker of the Child Youth and Families Services (‘CYFS’) have applied to the court for the care of Saffy who is the daughter of Eddie and according to the sec-101 of the Children Young Persons and their Families Act 1989 for the direct custody order from the court. The court can only make the decisions about Eddie’s access with Saffy. Eddie can apply to the court as per the sec- 87 of the restraining orders where the court makes a declaration under section 67 in relation to a child or young person, it may, on or at any time after making that declaration, make an order restraining any person named in the order from doing all or any of the residing with the child or young person. Anyone can apply for an access order – parent, any family member.  See s121 CYFS Act.
The Judge determines what access should occur.   If no agreement can be reached then there will have to be a hearing before a Judge where the Judge will consider the evidence of the parties and make a determination as to what access is in the welfare and interests of the child, applying the principles of the CYFS Act.
This is an underutilised tool for families who have children removed from their care and have difficulties with the social worker.

Not every parent / family will engage the services of a lawyer.
Many people do not know about this option to seek an access order from a Judge.
The general perception that the social worker holds all the power and can make the decisions.
Social workers do not readily advertise this option and have no obligation to do so.
Some parents are simply overwhelmed and ‘give up’.

b.As per the information from Eddie, that she was three months pregnant and thinking that the CYFS are trying to take her baby off her at birth. Provided for at s18A – 18D of CYFS Act. ‘Subsequent child’ is a child who has a parent that: Has been convicted of murder, manslaughter or infanticide of a child who was in his or her care at the time of their death or: Has already had a children removed from their care on the basis of a declaration and the court has made a custody order, guardianship order or parenting order, and the court has determined or the FGC has agreed that there is no realistic prospect that the other children will be returned to the parent’s care. It applies to children who are already born but also ‘unborn’ children.  See definition of ‘subsequent child’ at s2 of CYFS Act. MVCOT can make an application for a declaration and custody in relation to unborn children.  As per the case history, Eddie is already under alcohol rehab centre for her treatment and her daughter is already taken from her because she negligence her duties as a parent and failed to take care of her daughter.  When she discover that she is pregnant, the court may again give order to taken her daughter after the birth of that child. Therefore, Eddie can apply for an order under the sec-2 of the Children Young Persons and their Families Act 1989 for the protection for her unborn baby.
In the case of C and C v Chief Executive DCYFS [2003] NZFLR 643 (Appeal to the High Court) the facts is Parent’s appeal the decision from the Family Court where a declaration was made that the children are in need of care and protection. Two children removed from their parent’s care by the Ministry; 41/2 year old daughter & 7 year old son. Placed with their grandparents who they have been with for a year.  Parents want children returned to their care and grandparents support this. Children removed by the Ministry on belief that father had sexually abused daughter.  Father denied this. Evidence was disclosure to someone child was staying with. Child made statements while being bathed about father touching her.

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