Dunedin Family Lawyer

Paternity testing - how it's done

7/7/2016

An earlier blog covered the situations when a paternity test might be required. This blog will discuss the practicalities of having the test done.

If you and the other party are in agreement, you can arrange and pay for a test yourselves. There is no need in that situation to make an application to the Family Court. You should however consider taking legal advice.

Typically after the application is made to the Family Court, the Court issues a recommendation that DNA testing is done. It is then up to the mother and the putative (possible) father to arrange for a sample of their DNA to be collected.

Generally, the mother takes the child to an approved laboratory, with photo ID for the mother, and a printed photograph of each of them. A blood sample is taken from the adult, and a cheek swab from the child. The photos are kept on file as proof of the person from whom the sample was taken. The father will also attend the laboratory (not at the same time), with photo ID and a photo of himself.

In Court proceedings, identification is a very important part of the process, so that the testing laboratory can conclusively report whether or not the alleged father is indeed the father. There is a clear "chain of custody" so there can be no doubt whose samples were taken.

The only laboratory who does this Court-approved testing in New Zealand is DNA Diagnostics. Their website has useful information about the testing process, and cost.

In Dunedin, the laboratory that takes the samples is Southern Community Laboratories at 95 Hanover Street. You will need to make an appointment first.

If a mother or father is eligible for legal aid, the costs of the test are usually covered by the legal aid grant. It may of course have to be paid back, but that is at an affordable rate.

If the test is not required for Court, then you could look into the various online companies who offer DNA testing. This could be appropriate if the mother and putative father get on well, can cooperate to send the samples away and can be trusted to accept the results once they are in. But if there are any doubts about the other parent’s ability to maturely and calmly accept the results of the test, a Family Court application is likely to be the best option. Contact a specialist family lawyer to discuss your options and the best way forward.

Paternity testing

29/6/2016

Sometimes it is necessary to carry out paternity testing on a child. Common cases include where the mother cannot be sure who is the father of her child, where a man is not convinced he is the father of a child, or where a mother knows who the father of her child is, but he refuses to acknowledge that.

This can be a very real issue for the child, who may grow up not knowing who his or her father is. Studies show that a child is likely to have better outcomes in life if they know who their parents are. Growing up not knowing who your father is will have a significant impact on a person's life. Just watch "Missing Pieces" or "Lost & Found" on TV if you need proof!

A more immediate issue can arise when a father is not named on the birth certificate, and will not acknowledge paternity in writing. In that case a mother receiving a sole parent benefit will have her benefit reduced until she is able to conclusively name the father. This is so that the father can then be required to support his child by paying child support. Typically the sole parent benefit is reduced by over $20 a week.

Back in the day all sorts of lurid information was required to prove a paternity claim. These days almost all applications are resolved by DNA testing. The Court can recommend DNA testing is done, although it cannot require it, and no person can be compelled to undergo a DNA test if they do not want to.

If a putative (possible) father refuses to take a DNA test, the Court can draw an inference from that. That is, the Court can assume that the man is refusing to take the test because he knows very well that he is the father, but he doesn't want it to be proven. In that case the mother will need to provide corroborating evidence as well, but it is quite possible for the Court to make a paternity order even without DNA testing.

The application is a relatively straightforward one for an experienced family lawyer to prepare, but there are a number of pitfalls for a person trying to make the application on their own. It is recommended that you consult a specialist family lawyer if you need to make, or respond to, an application for a paternity order.

Representing yourself in the Family Court

6/4/2016

More and more people are finding themselves having to consider acting for themselves in the Family Court. This could be because a "simple" application under the Care of Children Act must be filed by the litigant themselves, and not a lawyer. Or it could be because while a litigant is ineligible for legal aid, they cannot pay thousands of dollars for a lawyer.

Acting for yourself is always risky. Quite apart from the difficulties in understanding the law and Court process, you are unlikely to challenge your own position or "think outside the box" about other possible solutions.

A big part of a good lawyer's job is reality checking their clients' positions, to ensure that what they are asking for has at least a chance of being awarded by the Court. If you are acting for yourself with no advice, you will miss this vital step.

One option if you can't afford to engage a lawyer for the entire proceedings, is to seek advice at various steps and for specific jobs only. For example, you could meet with an expert family lawyer before filing an application, to get some advice about what to include (and what not to include). Then you might use the lawyer again only when the settlement conference occurs.

While traditionally lawyers work under a "full service retainer", carrying out every aspect relating to the proceedings, some are happy to work on a limited retainer, as described above. This is also known as "unbundled assistance" and more progressive lawyers are moving towards offering that service.

If you feel that you want to represent yourself, but you are wise enough to know that you don't know everything, I suggest finding a lawyer who can offer an unbundled service that fits your needs specifically.

Contribution to Lawyer for Child's costs

21/2/2016

In March 2014 the law changed to require parents to contribute to the costs of lawyer for child. Lawyer for child’s fees in even a fairly simple case can range from $1,000 to $3,000, and if your proceedings are complex or require a hearing to resolve, the lawyer for child’s costs could be even higher.

The starting point is that each parent will have to pay one third of the total fees. The Court will meet the other third. However, a parent could be ordered to pay up to two thirds of the fee.

To date it hasn’t been clear whether parents receiving legal aid would be liable for lawyer for child’s fees. The High Court has now confirmed that a legally aided parent will not have to pay anything towards lawyer for child’s costs, unless there are exceptional circumstances. The threshold to finding exceptional circumstances is very high, so it is safe to say that in the vast majority of cases, a legally aided person will not have to pay a contribution to lawyer for child’s costs.

The consequence of this ruling is of course very good news for legally aided parties.

There may however be significant consequences for parents who are not eligible for legal aid, where the other parent is. It is not hard to foresee situations where the legally aided party may take an unreasonable position, safe in the knowledge that they will not be liable for costs, but knowing that for every hour that lawyer for child spends on the case, their private-paying ex will have to pay more towards not only their own lawyer’s fees, but also lawyer for child’s.

Time will tell whether in these cases the private-paying parent will be ordered to pay two thirds of the costs, because their ex is on legal aid.

Why might I need a Family Lawyer?

18/2/2016

We are all a member of a family. A specialist Family Lawyer can assist you with the many legal issues that might arise out of your family relationships.

Family Law isn’t limited to issues that arise when people separate. You may need a Family Lawyer for these matters concerning children:

• Proceedings involving grandparents and other family/whanau members
• Acting for parents when Child, Youth and Family (CYF) are involved
• Obtaining parenting orders for CYF caregivers ("Home For Life")
• Paternity applications
• Applications by fathers or grandparents for guardianship of a child
• Adoption applications

A significant proportion of a specialist Family Lawyer’s work is to do with property, such as:
• “Pre-nuptial” property sharing agreements
• Overturning unfair relationship property settlement agreements.
• Challenging wills of deceased relatives
• Protection of Personal and Property Rights proceedings and Enduring Powers of Attorney
• Applications to review decisions by the Commissioner for Inland Revenue concerning child support

In the above situations, you will almost certainly benefit from a specialist family lawyer’s advice.

DIY NZ Divorce Online?

30/9/2015

Type “divorce” into Google and somewhere near the top of the searches there will likely be a link to a .com site suggesting you should start arranging your divorce with their help. Be careful of using such sites. Typically it will be a site registered outside of New Zealand. Typically you won’t be able to get far into the site until after you’ve paid your money. And certainly, all the site will do is give you access to documents already available FOR FREE from any District Court/Family Court or online from the Ministry of Justice.

In New Zealand, divorce is legally called “dissolution of marriage.” This is a separate process to sorting out care of children or dividing relationship property. You will need a lawyer for settling relationship property, you may not need a lawyer for negotiating care of children and you certainly don’t need a lawyer for the dissolution of your marriage.

A helpful, easy to use application pack is available from any Family Court or online from the Ministry of Justice. Most people are quite capable of filling out the forms themselves, for their DIY divorce. Save your money and don’t give it to off-shore internet companies. If you do need some legal advice, seek professional advice from a NZ-based specialist family lawyer, or a community law centre.

The BEST Lawyer in Dunedin

29/9/2015

When you're dealing with stressful issues concerning your family and property, of course you want to hire the BEST lawyer in town to represent your interests and fight for your corner. And so you should! But many clients are surprised when to learn that this doesn't mean they should hope their ex has the worst lawyer. Not at all. If your ex has a "bad" lawyer, such as one who doesn't know the law, who pursues un-winnable arguments, is unnecessarily aggressive or adversarial or even one who just never gets back to your ex, it will end up costing you - in frustration, time and money.

So, not only do you want to have an specialist family lawyer yourself, in most cases you'll find that your lawyer can achieve a more favourable outcome if your ex also has an experienced family lawyer acting for them. Unfortunately though, you will rarely be able to have a say about who your ex's lawyer is.

The upshot? By all means hire the best specialist family lawyer in town, but don't be too worried if your ex hires the second-best!

But a pre-nup is so expensive!

29/9/2015

Yes, a good contracting out agreement will cost you (probably over $1,000 each and maybe more) but this is not somewhere to skimp and save. Coming back to my insurance analogy from an earlier post – you probably pay in excess of $700 on house insurance each year. Not because you intend or know that your house will burn down this year, but just in case it does. And the chance of that happening in any one year is minuscule! Over 20 years of home ownership you may spend $14,000 on insurance and never make a claim.

Contrast that to the 100% likelihood that your relationship will eventually end (either by separation or death) and a one-off cost of, say, $3,000 suddenly doesn't seem so exorbitant.

And be warned about looking for the cheapest pre-nup around: a poorly drafted agreement will cost you an awful lot more in the long-run. Unless the agreement is well drafted in accordance with the law, based on full disclosure and written specifically for your individual circumstances, it will be left wide open to challenge in the future. Not only will the agreement not be worth the paper it is written on, but you could be out of pocket by many thousands of dollars in legal fees before you realise it.

It’s so unromantic to talk about a pre-nup!

24/9/2015

Sure, it isn’t a discussion you probably want to have while on a special date night, but it is a conversation every couple should have at some time, and certainly within the first year or so of a relationship.

Of course you don’t want or plan for your relationship to end, but hey, you don’t plan for your house to burn down or for your car to be stolen either, but you insure them, just in case. And in the same way you need to insure your precious and valuable assets against being halved when your relationship inevitably ends.

Hang on? Inevitably!? That's a very unromantic attitude! Well, yes, but sorry, every relationship ends eventually – either by separation or by the death of one of you. And with a well-drafted pre-nuptial (aka contracting out) agreement (and of course a will), you can be confident that what you and your partner intend to happen to your assets, will happen.

Having a pre-nup is especially important if you have children from an earlier relationship, or if you are bringing significantly more assets into the relationship than your partner is.

And don’t leave it too long – once you’ve been together for three years, the Property (Relationships) Act has taken hold, and the discussion will be a much more difficult one! Contact a specialist Family Lawyer now to discuss insuring your assets.

I've just separated - what do I need to do?

23/9/2015

Many clients will first instruct a Family Lawyer when they separate, or, even better, when they are contemplating separation. A specialist Family Lawyer can help with issues such as:

• Where will your children live after you separate? How can you set things up so that both parents continue to be involved?
• Guardianship disputes: both parents need to be involved in decisions about name changes, medical issues, schooling or moving out of town or overseas. If you can’t get your ex-partner to listen to your views, a lawyer may be able to!
• Relationship property will need to be identified, valued and divided. In most cases, the sooner this is done, the better.
• Often one party is in a much better financial position than the other. There may be child support or maintenance that should be being paid.
• If there has been domestic violence, you may need urgent assistance to obtain a protection orders to ensure your safety and that of your children.

A good Family Lawyer won’t rush you off to Court unless that is what is absolutely necessary, so be sure to engage a specialist Family Lawyer who knows the least divisive, least expensive and most effective solutions to the issues you are facing.

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