Newsletter
Winter 2006
In This Issue:
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Staff News
- We are delighted to announce that John Stirling, formerly a Senior Associate, has joined the partnership. The partners of Turner Hopkins are now Michael Newdick, Michael Robinson, and John Stirling.
- Many clients will have dealt with Edward Robinson, who was a solicitor in our Litigation Department. Ed has now left to work at Genesis Energy. We are, however, very pleased to welcome Isabel Jenner, a solicitor who has replaced Ed. Isabel had previously worked for us as a summer clerk whilst she completed her law degree. Isabel has now qualified, obtained some experience and is working with Michael Robinson and Claire O’Donnell in the area of family law, criminal law, and general litigation.
- We also welcome our new Office Manager, Helen White. Helen has a wealth of experience in administration and accounts and will also be the principal contact person for clients investing in the Turner Hopkins Solicitors Nominee Company.
- Many clients will know that Michael Robinson married his lovely partner, Caroline, in February. Congratulations to Michael and Caroline from the team at Turner Hopkins. Michael has also recently marked the milestone of 10 years at Turner Hopkins.
Relocation of Children - When Disputes Arise
How the Problem Arises
Relocation disputes arise when the parent who has day-to-day care of a child wishes to change his or her place of residence, along with that of the child, and the other parent opposes the relocation. The proposed relocation may be overseas or elsewhere within New Zealand.
These cases (often described as “intractable”) are some of the most difficult and distressing imaginable for both the parties involved and also their legal advisers.
Example
A typical scenario of a relocation dispute is as follows:
A couple are together for many years before separating. They have two children. The children have lived with the mother in Auckland since separation. The father has contact with the children each weekend. The parents met in Australia. Most of the mother’s family still reside there. The mother now wishes to move to Australia with the children but the father will not consent.
Legal Issues
The parent with day-to-day care (formerly “custody”) wishes to relocate with the children to another country. In such circumstances the other parent’s consent will be required.
If the parents are unable to agree on the primary residence of their children, either parent may apply to the Family Court for the Court’s direction.
If the father was to become aware of the fact that the mother may depart despite his opposition to the move, he may file an application for an order preventing the removal of the children from New Zealand until the Court determines the relocation
issue at a substantive hearing.
Relocation disputes are dealt with under the Care of Children Act 2004 (“the Act”). The Act provides that the welfare and best interests of the children are to be the primary consideration and gives express guidance as to what matters the Court must take into account. The welfare of each child is different in every case and must be assessed on its merits.
The Act also requires the views of the children to be considered and a lawyer will be appointed by the Court to represent them.
If the relocation dispute is to be determined by the Court, a hearing will be held. Following the hearing the Court will make Orders. For example, the Court may make a Parenting Order providing for the children to be in the mother’s day-to-day
care in Australia and the father to have contact.
The reality is that in this type of case, there can be no compromise reached. One parent will “win” and the other will “lose”. In extreme cases the result may mean that one parent will end up with
significantly reduced or possibly no further contact with their child or children.
Enforcement of Orders
When children move outside the jurisdiction of the New Zealand Courts, it is important to ensure that any orders made will be adhered to. If they are not, there may be enforcement procedures available to the aggrieved party. If the children are relocating to another country that is a signatory to the Hague Convention (which governs international child relocation and abduction matters), some protection may be available from relevant authorities in New Zealand and the overseas jurisdiction. Most “Western” countries are signatories to the Hague Convention. Many other countries are not.
In any case involving relocation of children to another country, it is essential for the parents to ensure that proper safeguards are put in place before the children are relocated overseas.
For further information on this subject or any matters relating to care of children or family law in general, please contact either Michael Robinson or Claire O’Donnell.
Problem Neighbours - What to Do?
Have you ever purchased a property and later discovered that your neighbour’s trees will eventually block your view or prevent your property from having the benefit of sunlight?
Problems with neighbouring trees can be a common source of tension between neighbours. It is a good idea to talk to your neighbour first to see if you can come to some arrangement that is
suitable to both parties, such as agreeing to have the trees thinned or reduced in height.
However, if that doesn’t work, there are legal remedies available. Parties can apply to the District Court under the Property Law Act 1952 (“the Act”). Section 129C of the Act gives the Court the power to order removal or trimming of trees injuriously affecting neighbour’s land.
Specifically, section 129C(6) includes factors that the Court may take into consideration in determining whether a tree is obstructing the applicant’s view or is otherwise causing injury or loss to the applicant. These factors include the:
- Interests of the public in the maintenance of an aesthetically pleasing environment;
- Desirability of protecting public reserves containing trees;
- Value of the tree as a public amenity;
- Historical, cultural or scientific significance (if any) of the tree; and
- Likely effect (if any) of the removal or trimming of the tree on ground stability, the water table or run-off.
Other Considerations
The Court will not make an order under this section unless it is satisfied that:
- The tree is causing or is likely to cause loss, injury or damage to the applicant’s life, health or property; or
- The tree is obstructing any view that an occupier of the applicant’s land would otherwise be able to enjoy, or is otherwise causing injury or loss by diminishing the values of the property or reducing the enjoyment of it for residential purposes.
The Court will balance these considerations between the hardship that would be caused to the applicant by the refusal to make the order and the hardship that would be caused to the respondent by the making of the order.
Access on to Private Property - Your Rights and Obligations
Many of our clients are land owners and will recall the debate surrounding the proposed legislation granting access to waterways over private property. Currently, there are groups of people who may request access to private land, and we believe that all land owners should be aware of who may enter their property.
Rights of access
So what are some of the issues surrounding your rights and liabilities with visitors on your land?
Network Utility Operators can request access to private land. They are usually involved in providing services such as gas distribution, telecommunications, electricity distribution, water supply and drainage or sewage systems.
Before entering onto land, a Network Utility Operator should provide information in writing to the owner. This information should include:
- the reason entry is required;
- any rights the land owner may have to object to the entry;
- a description of the work to be done on the land;
- who will be undertaking the work;
- confirmation that any damage caused will be
remedied or paid for; and
- a complaints referral procedure.
You do have the right to refuse entry to some operators but you must allow others access in certain circumstances. If you are unsure as to which applies, please don’t hesitate to contact a solicitor at Turner Hopkins.
Health and safety
The Health, Safety and Employment Act 1992 (“the Act”) imposes obligations on land owners in relation to access by third parties onto their land.
The focus of the Act is on identification of hazards in the work place. Residential premises are excluded from the definition of workplace so the provisions of the Act do not apply to most urban residential properties nor does it apply to those parts of a farm used for domestic accommodation.
The purpose of the Act is to ensure that all practical steps are taken to ensure the health and safety for all persons on the property.
Land owners whose properties are a place of work are therefore obliged to take steps to ensure the following people are not harmed by hazards:
- people in the vicinity of the place of work;
- employees, contractors and subcontractors;
- people who are on the land with the owner’s consent and who have paid to be there; and
- customers.
There are circumstances where a duty of care is not owed to visitors. This includes people visiting for the purposes of leisure and recreation, and also includes trespassers.
Legislated right to access over private farms
The new Government has indicated it may not proceed with a proposal to provide public access over farms and instead may look at alternatives including negotiation with land owners to improve access.
The news has been welcomed by Federated Farmers who say they will be taking a keen interest in the framework for negotiating rights of access.
Have a plan
As the issues of both access and health and safety are closely linked, it is worthwhile for land owners to have a policy in place to deal with them. In particular, it would be wise to ensure that practical steps are taken to manage any existing or potential hazards on the property. For further advice, call a solicitor at Turner Hopkins; we will be pleased to help you.
Extension Of Paid Parental Leave To The Self Employed
A Bill that has now been referred to the select committee proposes to extend paid parental leave to the self-employed.
Self-employed mothers who have been working an average of at least 10 hours per week, during either the previous 6 or 12 months before the expected date of delivery of their child, will be entitled to 14 weeks’ paid parental leave. Parental leave payments may be transferred by a self-employed mother to an eligible partner.
To be eligible for parental leave payments a self-employed person will be required to take a break from his or her work. However, unlike an employed person, the self-employed person can maintain a level of oversight of his or her business during the period of parental leave.
If the Bill is passed it will take effect from 1 July 2006.
Making a Will and Relationship Property
The Relationship Property Act 1976 (“the Act”) was amended in 2002 to include provisions that may apply when a relationship ends by the death of one of the parties. The surviving partner can elect whether to claim against the estate of the deceased or receive under the deceased's Will.
If the first option is chosen then the Act provides that the surviving partner will, in many cases, receive half of the relationship property unless there is evidence to the contrary.
In choosing to make a claim under the Act, the surviving spouse's entitlement effectively overrides the wishes of the deceased person. The claim under the Act also takes priority over other claims against the estate, for example those made under the Family Protection Act 1955.
Any person making a Will therefore needs to be aware of the options their surviving partner has under the Act and to plan accordingly.
For further advice on Wills and Estate Planning, please contact John Stirling or Raechel Pedrotti of this office.
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Disclaimer
All information in this newsletter is to the best of the authors’ knowledge true and accurate. No liability is assumed by the authors, or publishers, for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information.
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