Newsletter - September 2024
Spring appears to have sprung across New Zealand, and it feels like a great time to refresh and reflect as we push forward towards the end of the year. In this month’s blog, we explore key topics in family law, employment law, and immigration – all areas that might come into focus during this season of change. Whether you’re navigating family dynamics, dealing with workplace issues, or considering your path to residency in New Zealand (or how to stay here), our latest articles offer insights and guidance to help you make informed decisions.
Meet The Firm - Video
We also look forward to daylight savings rolling out this weekend, making the days longer, which we hope will be followed by some warmer weather. There is a lot of expectation in the air as we await another Reserve Bank announcement in October. With business confidence slowly but steadily rising, it does feel a little like spring has brought a new sense of optimism.
The Turner Hopkins team are also gearing up for our 100 Year celebrations due to take place in November, where we acknowledge a century of providing legal services to the Auckland community.
Relocating With A Child
Determining where a child lives is a decision that both parents, as legal guardians, need to make together. But what happens if one parent wants to move with the child—whether to another city in New Zealand or to a different country—and the other parent disagrees?
When parents cannot agree on a move, either parent can ask the court to resolve the issue. Relocation cases are intensely fact-specific to each family and child. The court’s paramount focus is always the child's welfare and best interests, not the parents' preferences.
The court is guided by these non-exhaustive principles:
Child’s Safety: Ensuring the child’s safety in the care of either parent.
Parental Responsibility: Parents should primarily handle the child's care, development, and upbringing.
Parental Cooperation: Parents should consult and work together on decisions affecting their child.
Continuity: Maintaining stability in the child’s care, development and upbringing, but note that there is no automatic presumption in favour of the status quo.
Relationships: The impact of the move on the child’s relationships with both parents and extended family, including whānau, hapū, or iwi.
Child’s views: The child should have reasonable opportunities to share their views on the decision. The court will appoint a lawyer to represent the child and in some cases a psychologist report might be needed. Children may also meet with the judge before a hearing if they wish. However, a child's views are not determinative and they may conflict with the need for the Court to provide for the welfare and best interests of the child.
Moving With The Children?
If parents can’t agree on where the children should live, the courts can intervene to provide what is in the best interests of the child.
The court will look at which principles are relevant and apply them to the case. Other factors the court might consider include the moving parent’s ability to value and encourage the other parent’s involvement, the non-moving parent's capacity to demonstrate continued interest in the child after relocation, practical issues in granting the move such as transport, costs and accommodation, practical issues of refusing the move such as financial and employment consequences for the parents, the impact of granting or refusing the move on the child's support network and overall well-being. The court avoids a strict “checklist” approach and instead uses a comprehensive overall analysis to decide what is best for the child.
If a child is moved within New Zealand without your agreement, you can seek urgent orders through the Family Court to have them returned to their usual place of residence.
If there is a risk of the child being taken out of New Zealand, the Family Court can grant an order to prevent this from happening and notify Interpol to place a travel ban on a child’s passport.
If a child has already been relocated overseas without your knowledge, then assistance may need to be sought from the New Zealand Central Authority for the Hague Convention (on the Civil Aspects of International Child Abduction) that specified countries have signed onto.
For questions or concerns about relocation, please contact our family law team.
Authored by Rebecca Ong
Employee vs. Contractor
While the Government plans to clarify the section 6 test of employee vs contractor status, there is ongoing uncertainty regarding the extension of employment obligations to contractors, highlighted by two recent cases.
High performance athletes: In February 2024 the Employment Relations Authority made a determination in The Athlete’s Cooperative Inc v High Performance Sport NZ that HPSNZ has obligations to commence good faith bargaining with athletes even though they are not employees.
Uber drivers: In August 2024 Uber lost it’s appeal to the Court of Appeal against four drivers. The Court of Appeal held that the real nature of the relationship with Uber was one of employment, even though they did not have an employment agreement. Uber may proceed with challenging this decision in the Supreme Court.
Changes to Employment Law
The proposed changes will mean closer scrutiny on whether someone works as a contractor or an employee.
There is a new initiative of the government to make changes to the legal test in 2025.
The changes will provide a “gateway test” that businesses can use when responding to a claim that someone is an employee not a contractor, the criteria will be defined in amendments to the Employment Relations Act. If the following criteria are met, then the worker will be excluded from being able to challenge their status, their status will be determined as a contractor:
There is a written agreement that specifies the worker is an independent contractor; and
The worker is not restricted from working for others; and
the worker is:
not required to be available to work certain times, days or for a minimum period; OR
able to sub-contract the work, and
the business does not terminate the agreement for not accepting an additional task
If the four factors are not met, then the status claim would continue to be considered under the usual section 6 test (which include intention, control, independence, economic reality, integration).
What does this mean for your business? Watch this space – as these changes are introduced it will be important for your business to understand the different legal tests and review your independent contractor arrangements to align with the criteria above. We can assist with reviewing and amending your current worker arrangements (contracts and policies).
Contact our Employment Law team, if you have any queries regarding employee v contractor status for your workers.
Authored by Catherine Pendleton
New Visa Fees & Longer Partner Visas
When you are the only game in town, the ability to charge whatever you like is pretty easy and that appears to be how the current Government sees our immigration system, who are in fact, the only game in town. Having a monopoly over the visa process, means they control the pricing from 01 October 2024, those prices will be increasing, for almost all visa application categories.
This will inevitably see a large number of applicants rush to beat the increase, and we are already seeing a fair few people, desperate to save some hard-earned cash, by filing their applications, with whatever documentation they have, before the end of this week. The problem with that approach however, is that if your application is incomplete, INZ will still receive the application but then potentially only give you a very limited amount of time to provide what was missing - if you can’t you run the risk of your application being declined and of course having to pay another (higher) fee to file again.
Visa Fees Increasing
From 01 October 2024, most Visa Application Fees will be increasing, some by more than 100%.
Because most applications are now filed online, once INZ takes your payment (which is usually as soon as you click “submit”) they are then forced to receipt the application into their system. However that doesn’t necessarily mean they have to process it.
An application that is filed without some or many of the mandatory lodgement requirements, can be refused, although usually INZ would provide a limited period of time for the applicant to fill in the gaps. That will work for some, but for others, it might not be enough time to secure those documents and to keep the application alive. I expect that there will be a fair few people who end up in this situation, having to shell out not once, but twice for the application cost.
If you do end up in this situation, then contact us for some advice on the possible options and best way forward. In some cases, where the missing documents can be remedied relatively quickly or there are other compelling circumstances, we might be able to negotiate a longer timeframe with INZ. Of course the best approach is to file your application with all of the documentation in order and if you are unsure as to whether you have everything you need, our immigration team, can assist with that check as well.
In other news, Partners to New Zealand Citizens or Residents will now be able to secure longer Visas (up to three years), as opposed to the current two years in place. This applies to those who are able to demonstrate that they have been living together for a period of at least 12 months already. If you haven’t been able to clock up that 12 month period, then you can still secure a Work Visa for 12 months initially (and extend that to three years later on).
These changes bring this particular Work Visa in to line with other partnership based Work Visa types and allow applicants more time to organise themselves for a pathway to Residence.
For all your New Zealand immigration queries, contact our specialist immigration team, using the contact button below.
Authored by Paul Janssen
Turner Hopkins in the Community
We continue to support KidsCan and the amazing work that that they do to help New Zealand youth. If you are able to spare just a little to assist the work that KidsCan do, we know they would appreciate it. You can donate online and every contribution helps (big or small).
Our very own Sue Williams-Warren is still preparing to partake in the Pink Ribbon Walk in October and its not too late to contribute to her fundraising goal, by donating online.
Finally, Catherine Pendleton who heads our Employment law team, has been appointed to the Law Association Employment Law Committee for another two years, commencing in October.
Catherine’s appointment is a testament to her experience in the field of employment law and her commitment to the industry.
Whether you are an employer needing advice on employment matters for staff or an employee needing some advice on an employment situation, Catherine and her team are available.
As we usher in Spring and look forward to those extra daylight hours, remember that there are only a few months left until the end of the year. To avoid the last minute rush of ‘things to be done’, why not get in touch with us today. We can help you plan for any legal issues you need to address and avoid the pre-holiday panic.
Next week, following on from the next OCR announcement we will be providing a further update on the property situation, from our specialist property law team, we take a closer look at estate planning issues and offer some further commentary from our debt recovery team.
Remember if you have any topics that you would like us to discuss or highlight in our monthly newsletters, then email us with your thoughts.
Until next month!
The Team - Turner Hopkins
