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THE LAW REFORM COMMISSION OF HONG KONG - page 145 / 360

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New Zealand

New Zealand child support and access

5.55There is now child support legislation in New Zealand, Australia and England which takes the calculation of child support away from judges and instead vests the discretion in an administrative agency that uses formulae to compute the contribution by the non-custodial parent.  In New Zealand some credit for child support is given if the child spends 146 nights with that non-custodial parent.  This influences custody and access orders which may or may not be in the best interests of the child.  If the motivation is to reduce child support payable to the other spouse, then this is an improper basis for access or shared physical parenting:

“The experience of some women strongly suggests that custody and access applications are increasingly related to the amount of child support required by Inland Revenue, rather than an interest in contact with the children.”643

5.56On the other hand, research has shown that when access has been denied, maintenance for the child and spouse tends to become erratic and may stop.  In ordering maintenance for children, the court should consider the impact on custody and access arrangements.

Children in the New Zealand Family Court

Welfare of the child

5.57The court has a duty to treat the best interests of the child as the paramount concern.644  The court has a duty to satisfy itself that the arrangements for the child are the best that circumstances will permit.645  The court has few guidelines for determining this issue.646  Theoretically, the court should have more information available at a hearing as the court frequently appoints Counsel for the Child and requests specialist reports.  In practice, the court has only had to proceed with a hearing in 27% of cases in 1988, compared to 52% in 1982.647

Wishes of the child

643 Neilson, “Women as Family Court consumers”, in Rights and Responsibilities, papers from Symposium on Rights and Responsibilities of the Family, Wellington, October 1994, 156.

644 Section 33 of the Guardianship Act 1968.

645 Section 45(1) of the 1980 Act.

646 Wilson, “Alternative Dispute Resolution”, Auckland University Law Review, vol. 7 (2), 362, 363, at 367, (1993) refers to Hall, The welfare of the child: a literature review, Family Court Custody and Access Research report No. 1 (1989), 17.

647 Chart, “Some New Zealand initiatives in Alternative Dispute Resolution”.  Commonwealth Law Ministers conference, Auckland (1990), 605, at 608.

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