Vaccinations, throuples, child support disputes – authors of "Family Law in New Zealand, 21st edition" discuss family law’s biggest changes and challenges
One of the most complex and deeply personal areas of law, family law deals with people and relationships – and this makes it a unique challenge for legal practitioners.
For practising lawyers, there are some substantial reviews and changes either implemented recently or on the horizon. These include changes to the Child Support Act; disputes regarding the Property (Relationships) Act; and increased parliamentary directions to have children’s views heard in court. And with a new government incoming, the pace of change won’t be slowing down anytime soon.
In a timely move, LexisNexis New Zealand recently published the 21st edition of Family Law in New Zealand. Speaking to NZ Lawyer, two of the edition’s co-authors discussed some of the biggest changes currently happening, what we can expect from a new National-ACT-NZ First government, and some of the most interesting cases they’ve come across over the last several years.
Family law: the biggest legislative changes
According to Bill Atkin, Emeritus Professor, Faculty of Law at Te Herenga Waka - Victoria University of Wellington, changes to the Child Support Act – particularly with regards to parents on social security – is one of the most significant changes still ongoing.
“Until recently, a social security beneficiary had to apply for child support through Inland Revenue, but in most situations they received none of the payments as they went to the state,” Atkin explains.
“The change was made to get rid of these rules, so that the money which is paid where the other parent is on a benefit now goes to the beneficiary. It’s a very important change because several thousand children are lifted out of poverty under this provision.”
Atkin notes that there is also a “constant flow” of cases with regards to relationship property, and says the law needs to be tidied up in this area – particularly with regards to relationship property and trusts.
Mark Henaghan, Professor of Law at the University of Auckland, says there have been some significant changes based on the 2019 review of the Family Court. While lawyers previously couldn’t appear before the court on care of children’s matters, apart from the exception of an urgent case, a new reform now allows them to do so. The Family Court must hear the views of children in the decision-making process, and it is now a requirement to give children a “reasonable opportunity” to participate in proceedings. The family dispute resolution process is now also required to give children a reasonable opportunity to participate.
“Children generally don’t want to choose between parents, but they can have a say in what school they go to, what they do in their spare time, and what activities are important to them,” Henaghan says.
“Those things are important for the court to know, so that judges can actually make decisions that take those things into account. One of the things being done in Canada is that a specially appointed person listens to the child and takes a transcript, word for word, of what the child says, and that is presented to the court. That way, you can hear the child in their own voice without them needing to be in court.”
Henaghan adds, however, that the recent Oversight of Oranga Tamariki System Act formed part of the prior government’s initiative to separate advocacy, monitoring and complaints into three organisations – thereby increasing the risk that children will fall through the cracks. Also, the recent replacement of the Children’s Commissioner with a committee body runs the risk that the voices of children will be lost in committee.
Modern questions require creative solutions
As society and relationships evolve, family law has to keep up. This means a constant flow of new questions, and challenges to existing precedents.
A recent example is the “throuple” case, which dealt with the division of assets in a three-way relationship. Atkin notes that the case was “a real toss-up” as to whether it fell under the Property (Relationships) Act or not, as that legislation was specifically designed for relationships with two people.
“One of the big questions is whether polyamorous relationships come under the Property (Relationships) Act, which has an equal division rule as a basic starting point,” Atkin explains.
“How do you divide property when you have several relationships involved? In the recent case, the majority took the view that if you have three people in a relationship, then by law, they represent three couples. The courts are going to have to wrestle with what some sections of the Act mean in the future, so it is a ‘watch this space’ despite the Supreme Court giving a bit of clarity to start off with in terms of which law applies.”
The Family Court has also seen a surge in vaccination-related cases, usually where the parents do not agree on whether or not to vaccinate their children. Henaghan says the Court has largely been successful in dealing with these, and in some cases where the child was older and understood the issues at hand, it went with the child’s decision.
“There was an increase in these cases with regards to COVID, but general child vaccinations as required by the Ministry of Health also still give rise to disputes, so I think we’ll see an ongoing flow of these,” Atkin comments.
A new government, new changes?
As National, ACT and NZ First finalise the formation of the new government, Atkin and Henaghan say the changeover could mean several things for family law.
Atkin notes that National wants to bring social investment back as a fundamental policy, and ACT is pushing to remove Treaty references in the Oranga Tamariki Act. He says there are also likely to be some changes to paid parental leave, along with a more punitive approach to social security.
“A reform of adoption law has also been slowly pushed along, and there is a reform of surrogacy before Parliament,” he adds. “The latter seems to have cross-party support, so we may see surrogacy legislation passed under the new government.
“There are question marks as to where the new government is going to go with a number of matters related to family law, and it’ll be interesting to see who the new Minister is and how they go about it.”
Henaghan notes that a lack of judges of Māori descent was one of the key things picked up in the review of the Family Court, and there have been disputes in decisions between judges of Māori and Pākehā descent on how to interpret tikanga principles such as whakapapa. He says removing these references is likely to have a poor impact on Māori whānau, particularly as Māori tamariki are already disproportionately removed from their whānau.
“This all goes back to 1989, where the Puao-te-ata-tu report found that the then Children and Young Persons Act didn’t understand how Māori families function,” Henaghan says.
“The Family Court still has a long way to go in order to be trusted by Māori families when decisions are made about their tamariki and mokopuna. It would be a major backward step if the incorporation of tikanga principles and Te Ao Māori values in family law legislation were weakened; they need to be strengthened and understood more deeply.”
Advice for the next generation of family lawyers
Atkin and Henaghan’s careers have both spanned over 45 years, and they have each made extensive contributions to the publications, reviews and teaching of family law. As such, they are in a unique position to understand the complexities and challenges of practising in this area.
When it comes to graduating law students, Atkin says anyone wishing to practise family law needs to go in “with their eyes open.”
“There will be some stressful situations to deal with,” Atkin says.
“To an extent, you need to be dispassionate about that so that you don’t become personally involved. But it’s a very important area, and people need legal support so often. Some people resolve their disputes in an amicable and sensible way, but many don’t – you need to go in prepared for that.”
“It’s important that you know your law and your rules of evidence really well, and that you work in an environment with others who give you support,” Henaghan adds.
“It’s too tough to make the calls in this area on your own, you need to work with a team and have support people around you. It’s also important to have people who will support your learning – this is an area where you want to gradually take on more complex cases, not be thrown into the deep end.
“And finally, always have your Family Law in New Zealand title beside you wherever you go!”
The new edition of the Family Law in New Zealand (21st edition) was released on the 9th of October 2023 and can be purchased on LexisNexis eStore by clicking HERE (a free delivery option applies when buying this title).