Imagine a justice system that is not open to the public, does not allow you to hire a lawyer to represent you, has no jury to decide who is guilty and no judge to deliver a verdict.
Child support review officers appear to have the power to make decisions on whatever they decide is right and fair. From what we can tell, they don’t have to worry about anyone challenging their decisions.
Child Support Admin reviews are for both paying parents and receiving parents. The theory is that if the standard assessed formula is unfair in some way then you can get a review done and perhaps get an adjustment made to the formula.
From a number of reviews experienced ourselves (liable and receiving), and the feedback from our community we would have to say that overall they appear to be a sham.
Here are our six reasons why:
1. Admin reviews are an abuse of privacy
If you are the person applying for an admin review, the entire submission and every aspect of your financial situation that you submit to IRD, will be given to the other party (should they want to see it).
But here is the kicker – there is no need for the other party to supply the same.
They get to see all your stuff.. but don’t have to show you theirs.
It is not the other party deciding what is fair or not, so there is no good reason as to why they need to see your financials.
Full disclosure should go both ways – or no way at all. Why do IRD have the power to send private information to those that do not need to see it?
2. The decision cannot be shared or published
The review decision itself, even though you may think it is completely unfair and others would to, must be kept secret and you cannot show anyone.
If you publish the decision, despite how unfair or unreasonable it may seem, you could be prosecuted.
You are reminded it is unlawful to discuss or pass on information provided by any party in a review or any information contained in the review decision. If you breach this restriction, you commit an offence for which you can be prosecuted
Why the secrecy in terms of the decision itself? Why threaten to prosecute parents, for sharing a decision made by a government organisation?
3. Family court has no power over IRD
If you disagree with the outcome of an admin review you are told to take it up with the family court.
Another kick in the guts – unbelievably it appears the family court has no authority over the IRD. This is despite the following statement in the legislation:
If you disagree with a child support review decision you have the following options:
1./ If you applied for the review you can have the same grounds that were considered at the review looked at again. To do this you should apply to the Family Court for a departure order. You can only rely on grounds that were put to the review officer in the administrative review.
2./ If you were the other party to an administrative review you can appeal the decision in the Family Court. The Court will then rehear the original case.
3./ If there’s a new matter not considered by the review officer, or a change of circumstances since the last review, you can apply to us for another administrative review.
When one of our community sought help, after a disturbing admin review decision, they were told via email from a Manager at the Ministry of Justice:
The court has no jurisdiction to overrule an IRD ruling. I suggest you seek legal advice.
The family court has no jurisdiction yet is listed as an option to help resolve any issues? Really?
We are still trying to get to the bottom of this, if someone from IRD or the Government could actually shed some light on this, we would welcome it and be happy to adjust this article accordingly.
4. Receiving parents success on reviews vs paying parents
Sometimes paying parents have more custody of the kids than receiving parents do. We have had paying parents that have 65% custody of the kids and sometimes even more.
Imagine if you had your kids 4 or 5 days out of 7 and yet you had to pay the other parent for the privilege of having them 2 or 3 days a week?
What if you had them week about, were barely surviving and yet your ex was working for cash (or had a good accountant) so you had to pay them?
There are many situations where you should be able to do an admin review, as a paying or receiving parent, and get some kind of adjustment when the formula is not being fairly applied.
Under the official information act one of our proactive community members requested the breakdown of admin reviews around the numbers of paying vs receiving and this is what was provided:
Information received under the Official Information Act
Since the new child support laws were implemented in April 2015, until 18 April 2016 there have been 2,739 applications. 1,470 by receiving carers and 1,269 by liable parents.
You may think that the results of these reviews would be roughly even, for every receiving parent getting the short end of the stick, odds would have it that a paying parent is getting a raw deal.
Well not so fast..
- 711 applications for departure were awarded to receiving parents (48.37%)
- 374 applications for departure were awarded to liable parents (29.47%)
Receiving parents have a nearly 50% success rate at getting a departure, and liable parents almost 20% less.
5. Even acknowledged unfairness may be ignored
Remember, even if you have a valid reason for a review, this alone doesn’t guarantee the assessment will be changed. Ref: IR175
This just does not make sense.
Is our society and government so flawed that even if someone has a valid reason and complaint, it should just be shoved aside?
6. Special Circumstances must exist but no one knows what they are
One of our community recently had some questions for the IRD, on the back of a child support admin review.
The questions were around Ground 3 and were asked under the Official Information Act.
For those of you not familiar with Ground 3 here it is.
Ground 3 – You have necessary expenses in supporting yourself
This ground applies when the ability of either parent to support their children is significantly reduced by commitments that are necessary for that parent to support themselves.
Ref IRD Website
Note in the answer immediately below a ground 3 application allows for an administrative review by virtue of special circumstances..
The questions asked are in red, the replies from IRD in blue.
1. When applying under ground 3 and where vehicle expenses are involved, what vehicle expenses are IRD to consider, is it only fuel costs or is it actual complete running costs including insurance, maintenance etc?
Section 105 (2) (a) of the Child Support Act 1991, commonly known as ground 3, allows for an administrative review by virtue of special circumstances the capacity of either parent to provide financial support for the child is significantly affected because of commitments of the parent necessary to support themselves.
There is no list of what vehicle expenses, or any other expenses, that can or should be taken into consideration under ground 3. I have therefore declined to provide you with this information under Section 18(e) of the Official Information Act (OIA) 1982-document alleged to contain the information does not exist or cannot be found.
What is the definition of “General” running costs and what does that cover?
There is no definition of “general” running costs. I have therefore declined to provide you with this information under Section 18(e) of the Official Information Act (OIA) 1982-document alleged to contain the information does not exist or cannot be found.
All expenses have to be considered as to whether or not they are “necessary commitments” and then it has to be shown that the total necessary commitments significantly affect the ability to pay financial support. There is no definition of “necessary commitments”. For the review office to recommend a departure from the formula assessment, they must be satisfied that:
- special circumstances exist if applying under grounds 1 to 10 (special circumstances are not considered for grounds 11 and 12 which come into effect on 1 April 2016), and
- a change in the assessment would be just and equitable for the child, the receiving carer and the liable parent, and
- a change in the assessment would be appropriate.
2. Can I please have the complete list of “Special Circumstances” IRD must accept under ground 3?
There is no list or definition of “special circumstances”. I have therefore declined to provide you with this information under Section 18(e) of the Official Information Act (OIA) 1982-document alleged to contain the information does not exist or cannot be found.
However the courts have considered and commented on special circumstances and it is expected that review officers will follow and apply any precedent.
3. Can I please have the complete list of “Expenses” IRD accept under ground 3?
There is no specified list of expenses. I have therefore declined to provide you with this information under Section 18(e) of the Official Information Act (OIA) 1982-document alleged to contain the information does not exist or cannot be found.
4. Is there a formal process to review and challenge the review officers report (NOT the outcome of the report)
If the process has not been followed correctly to the extent that one of the parties has been denied natural justice, or the review officer makes a decision which was not legally open to be made, then a rehearing can take place. I confirm this would not extend to cases where the parties consider that the review officer has come to the wrong conclusion.
Why should you care?
The NZ child support system, modeled after the Australian child support set up, appears to be failing to meet the needs of children, and their parents.
Child support should be about supporting the kids in the best way possible after a relationship break up. Ideally, as a default option, it should be left up to the parents to sort out between themselves. Some parents, that can get along after a relationship breakdown, do actually do this.
There are so many underlying factors around shared care, access to kids, ability to survive and so on that most people just don’t really understand what it is like so tend to judge quickly and think that if anyone complains, it is because they don’t want to pay for their kids. This is simply not the case in many situations, so it is best to carefully examine all sides of any particular case, including what the children want and need before a decision is made as to who and what is right or wrong.
Every situation is unique with different levels of shared care, varying expectations over who should pay for what, and more than a few hard to understand IRD policies to contend with.
We need answers from those that govern these laws to give us clear guidelines. If there are special circumstances that must be met, show us or tell us what they are. Apply those financial restraints that are separate from the children, to both sides of the equation in a fair and consistent way.
Open up the decisions made (minus private information) to review and feedback.
Every child needs and deserves two parents that take an interest in their lives and support them.
Times are changing. The government party that takes this all on board and dedicates some resources to facing some of the issues, is going to get a lot of support.