Father’s Coalition asks if IRD Commissioner can produce the body.
In the Auckland High Court last Friday an Auckland father brought an unprecedented question of law before Justice Allan. The questions had been framed by Judge Rogers from the Manukau District Court. The father appeared at Court with several supporters who were permitted to remain after an inquiry by the Crown if this was appropriate.
The questions asked firstly if the father was entitled a departure from child support given that his children had been abducted and secondly whether jurisdiction remained with the Court to hear the application of a stand alone departure Order. Justice Allan explained that the answer should be able to be given in a word or a sentence, yet the debate surrounding the issue was extensive and the questions that had been asked appeared too broad for the answer that would be required. The father had refined the question to inquire if it was not repugnant to justice to remove child support from a liable parent where no-one knew where the children were or even if they were alive. Robust comments from the father on what otherwise looked like money laundering brought spots of humour to the otherwise serious proceedings.
During the proceedings it was clear that the provisions in legislation to protect parents and children from abduction are significantly inadequate. This was made clear when Justice Allan defined that the primary purpose of the Child Support Act was to protect the right of children to be maintained by their parents. This statement of legislative inadequacy to protect this father at that time, or any parent and their children to any state protection or support against the most horrendous emotional trauma saw the first of two of the father’s supporters leave the Court in audible disgust.
Justice Allan to his judicial credit did not excuse the Court from recognition that there was no capacity for the child to be produced if proof should be demanded that they were the beneficiaries of the support. After hearing all of the facts and the submissions of all parties the judge has reserved his decision.
This report has been prepared and released with appropriate anonymity under publication strictures as required.
Benjamin Easton of a fathers coalition
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Justice Allan also gave Crown Law, amicus curiae and the Father final opportunity to provide a single page submission by tomorrow 16th May 2008.
Of course Father is ready and and has also supplied to the forum the following anonymised copy.
May It Please His Honour Justice Allan
Upon reflection of the matters raised before the Court for your presiding to give opinion gave rise to a suggestion of how an initial, but temporary relief from the “wider picture” or in your words “worst case scenario”might be sought using the Family Court and Care of Children Act 2004 as the vehicle to obtain a Suspension Order by making an Application for a Parenting Order, piggybacking an Application for a Departure Order therby giving avenue for the Suspension.
However the Application for the departure would still not meet the criteria of this supposedly non-negotiable “narrow gate” as would defined by section 105 (2) of the Child Support Act 1991 and therefore struck out.
It may reasonable to suggest that the Family Court may have not wished the case quashed on technicality but embraced the profound nature and that it has been brought for your opinion as the matters raised extend beyond the limited parameters of legislative provision.
Perhaps, the following bastions of public redress may provide answer.
In the event that the abduction or possible abduction is drawn to the attention of the Commissioner of Inland Revenue, or his staff, and then if the Commissioner is unable to verify that the conditions for assessment are still correct, there is an obligation in equity to review the assessment.
The Commissioner of Inland Revenue has claimed that he has no discretion to stop an assessment of Child Support, once it has been issued. If the conditions on which the assessment was made are no longer correct, then the assessment would clearly have to be made afresh, to comply with the Child Support Act. The custodial parent is required to keep IRD informed of relevant changes in circumstances, so that the Commissioner of Inland Revenue can keep the assessment aligned to the present situation, from which the legal obligation arises.
Can the Commissioner of Inland Revenue, or any other authority, when abduction has occured and lacking the discovery of unsanctioned location of the child/ren, defend the protection invoked that a Writ of Habeus Corpus has, when used to challenge implementation of their actions, claims, powers or authorities on behalf of the “missing child/ren”?
The answer is clearly, No
Although not codified, New Zealand has been recognised to have assumed a constitutional administration upon cessation of its Dominion Status
Ultra vires describes activities of officials within an organization or polity that fall outside the constitutional or statutory authority of those officials.
Ultra vires gives a legal justification for the forced cessation of such action, which might be enforced for the people with the support of a decision of the judiciary, in a case of judicial review. A violation of rights by an official would be ultra vires because a (constitutional) right is a restriction on the powers of government, and therefore that official would be exercising powers he doesn’t have.
When an official act is unconstitutional that act is null and void, and the nullification is ab initio, that is, from inception, not from the date of the finding. It was never “law”, even though, if it had been a statute or statutory provision, it might have been adopted according to the procedures for adopting legislation.
Sometimes the problem is not that a statute is unconstitutional, but the application of it is, on a particular occasion, and a court may decide that while there are ways it could be applied that are constitutional, that instance was not allowed or legitimate. In such a case, only the application may be ruled unconstitutional.
A further factor provided by the applicant to the Court gives equation that Parental Abduction is internationally recognisd as Child Abuse.The collection of revenue that therefore would provide for continuance and assisting the same would be Repugnant to Justice.
This same collection of revenue, would it categorically fall within the term of upholding defined Natural Justice? Frankly not.
Legislative measures are enacted by Government based upon a theoretical perception that will provide an all encompassing remedy, this never addresses the cracks in the sidewalk that require the case by case evolution by our learned Judiciary who are then able to provide the seperation and safeguards as is required by New Zealands Society. I would ask his honour Justice Allan to reinforce the unalienable rights of Common Law and thereby provide judgement for the applicant rather than further erosion of the same.
We now await an unpredujicialed and balanced opinion of this member from the Higher Judiciary.
This opinion will be posted as soon as receivd.
Kindest Regards
Anonymous
P.S.
Get caught short, life in the crapper
get yourself like I did to the
East Auckland Refuge for Men and Families
(09) 940 6236
Comment by Anonymous — Thu 15th May 2008 @ 11:59 pm
I came across an interesting site worth reading.
http://www.stiassny.org
An insite into the Judicial workings in this country. What chance has the layperson to receive justice from any court.
Comment by High Hope — Tue 20th May 2008 @ 10:52 am