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Administrative Reviews of Child Support

Please note I am not a lawyer and this is not legal advice. Here are some general hints that may be helpful.

Read the CSA Amendment Act 1994

Especially 5 New Part VIA inserted

This is the legislation that is used as the basis for the admin review process.Its a bit heavy going but its important to get yourself in the mindset of reading the relevant Legislation and commentaries.

Basically for a departure Order to be granted you have to "overcome" 3 what I will call obstacles.

  1. Has a ground for the departure been established? i.e do special circumstances exist?
  2. Is the granting of a departure order "just and equitable" considered from the point of view of
    1. the child?
    2. the custodian?
    3. the liable parent?
  3. Would granting a departure order be "otherwise proper"?

Each of these is dependent on the other. You can only proceed to (ii) if (i) is found to exist etc.

If you manage to overcome the Commissioner MAY decide to grant a departure order.

Re M (Child support)

Go to a law library and obtain a copy of Re M (Child support) (No2) (1992) 9 FRNZ 693,701.

Twice I have had this decision quoted to me at the Admin Review Process in relation to Special Circumstances.

IRD admin review officers use this decision for gatekeeping. (It is a narrow gate!) To understand special circumstances read this decision.

Butterworths "Family Law in NZ".

Also read Butterworths: Family law in NZ. Available from any Public Library. Look up the section on Child Support.

Try to come up with several "special circumstances". Put simply the argument is that each of these will constitute a special circumstance individually, but if not found to be individually special together they will constitute special circumstances. Remember, that very ordinary circumstances collectively may constitute special circumstances.

If you can get past the "Special Circumstances" test you still have to get through the "Just and Equitable" and "Otherwise Proper" gates.

Read Butterworths, it is an invaluable resource.

As to the process:

  1. Put your whole case in writing, be very detailed and tell IRD what the law is. The written application is all important. Take your time, pass it out to others for comment and positive criticism. Consider the "admin review hearing" as a veneer designed to make you feel good about the process.
  2. Take a support person with you. If you are "unwell" you may be able to use an advocate. This has to be agreed to by the Commissioner (and cannot be a lawyer), if an advocate is not possible insist on having a support person.
  3. Don't believe what IRD tell you. Force them to justify any response with caselaw (detailed explanation!) and reference to legislation.
  4. Any information you give, for the review will be passed to your children's mother. If you don't want her to received this information, eg financial, don't give it.
  5. If you "attend" the review - tape record it.
  6. There is no "evidential standard" - it's a balance of probabilities game. Read as: IRD can take as "evidence" anything they like and interpret it any way they like.

James Nicolle
jnicolle@slingshot.co.nz
Phone: (04) 971-7837