Recommendations from the Child Support Review Committee include the following:

Section 105 (2) (b) provides for high costs of access incurred by either parent to be taken into account. In our view, this provides some financial relief to liable parents to meet the costs of having their children spend time with them.

We recommend that the definition of 40% of the nights for shared custody be retained. (p46)

In that this is in the context of discussion of the costs of having children stay with the non-custodial parent for a significant proportion of the time, it appears to be in direct contradiction of the following statement from Mark Aiono, Review Support Officer, Child Support Agency, in a letter to R Thomson dated 8 September 1995:

The definition of access in section 105 (3) subsection (2) (b) (i) refers to costs incurred in enabling access only, but not the cost of enjoying access.

I note that the non-custodial parent is said to "enjoy" access. Do the powers that be also assume that custodial parents "enjoy" their time with their children, or is it seen only as a burden and responsibility?

Also in another Notice of Determination (by Jane Signal, Review Officer at Palmerston North, dated 28 November 1995, case number 96/59/88), for a review under ground 10 (S.105 (2) (c) (iii) of the Act), the following paragraph appeared:

Finally, in considering this ground, it is necessary to determine whether there are special circumstances in addition to the factual which is satisfying of the grounds. Special circumstances were determined by the Court in the case of RE M 1993 NZFLR 74 as being "peculiar to a particular case which is set apart from other cases". The Court held that it was not sufficient that an applicant's financial hardship should be considered as special circumstances."

This would suggest that, even in cases where financial hardship is caused, child support would not be reduced. (This is a rather extreme interpretation of Re M, which includes a quote reproduced here, in that financial hardship could have been avoided). It is hard to see in general, and especially given this interpretation, how Judge Trapski can claim in the Child Support Review report that there is scope in the Act for financial relief for NCPs with high levels of access. The report to Thomson, mentioned earlier, also discusses "special circumstances", citing the same case as above, but also mentioning a later decision by Judge Keane (Chandler, Lower Hutt District Court, September 1994), in which the Judge said that "the focus is on economic considerations". I do not know how these two interpretations can be reconciled.

The sections of the Child Support Act 1991 referred to are:

105 (2) (b)That, in the special circumstances of the case, the costs of maintaining the child are significantly affected

because-

(i) Of high costs incurred by a liable parent or a qualifying custodian in enabling the liable parent access to the child; or

(ii) Of the special needs of the child; or

(iii) The child is being cared for, educated, or trained in the manner that was expected by either of his or her parents;

. . . .

105 (2) (c) (iii) The assessment results in an unjust and unfair amount because of the custodian's entitlement to continued occupation of a property still owned by the liable parent.

and:

105 (3) For the purposes of subsection (2) (b) (i) of this section, costs incurred in enabling a liable parent access to the child are not to be taken to be high unless the total of those costs during a child support year is more than 5 percent of the child support income amount for the year in relation to the person concerned.

The use of nights as the basic unit of measurement is discussed here.

Stuart Birks

Last updated 14 June, 1996