Comprehensive child support law reform urged

11 November 2010

Comprehensive child support law reform urged 

New Zealand’s current child support system is outdated and comprehensive legislative reform is needed to create an improved, fair and efficient system, the New Zealand Law Society says.

In a submission on the Government discussion document “Supporting Children”, the Society says the current system lacks flexibility because it fails to reflect the changes in New Zealand since it was introduced nearly 20 years ago. This is both in the way the courts now approach day-to-day care and contact issues, and in the way families operate.

The submission, prepared by the Society’s Family Law Section, encourages the Government to use the review as a chance to consider all aspects of the current child support system.

Looking at the objects of the Child Support Act 1991, the Society says that while there is reference to the child’s right to be maintained, the welfare and best interests of the child are “notably and regrettably absent”.

“This means that the Act is in breach of Article 3 of the United Nations Convention on the Rights of the Child, which states that ‘In all actions concerning children … the best interests of the child shall be a primary consideration’,” it says.

The submission also points to a philosophy in comparable Australian legislation of children being entitled to continue to benefit from the wealth of both their parents, even if their parents separate. It recommends that the New Zealand legislation should include the welfare and best interests of the child in its objects, together with the Australian provisions.

“As it stands, the [New Zealand] Act is very adult-focused. A change to the objects will signify a much-needed change in perspective. While the inclusion of the welfare and best interest of the child will not as such affect the child support formula and basis assessment process, it may be a significant consideration in relation to the many powers and discretions in the Act.”

A Maori perspective is also seen to be entirely missing from both the current New Zealand Act and also the discussion document. It is also recommended this this be taken into account and included in the Act’s objects.

Noting that the discussion document presents two options for reform of the formula for improving the child support system – comprehensive change or component change – the Society recommends adoption of comprehensive change.

“The Act was passed nearly 20 years ago at a time when circumstances were rather different. The Society recognises that there have been changes in New Zealand life, in particular modified employment patterns and a much greater trend towards shared parenting after separation,” it says.

“Legal practitioners with experience in the child support area are aware that the present system is no longer flexible enough to produce fair outcomes. While it is not possible to create a perfect system that meets the needs of parties in all cases, the Society is nevertheless of the view that the recently enacted Australian formula broadly speaking offers a better solution than the existing New Zealand one. Comprehensive reform rather than tinkering is called for.”

The Society outlines a number of ways in which that comprehensive reform could be achieved. These include linking contributions to income and not using a flat-rate basis, taking a child’s age into account, maintaining an income cap with an increase in the current cap, making the income of both parents comprise part of the formula, taking into account the liable parent’s dependent children, and basing child support on a more flexible scheme for recognising shared care.