Clause 15C. Applicants awaiting the outcome of an international child custody and access dispute

15C

Applicants awaiting the outcome of an international child custody and access dispute

15C.1

This clause applies to an applicant who-

(a)

is the principal caregiver of a dependent child; and

(b)

is in New Zealand on a temporary entry class visa under the Immigration Act 2009; and

(c)

is in New Zealand together with the child for the purposes of determining custody and access proceedings in respect of the child; and

(d)

is in one of the following situations:

(i)

the child has been returned to New Zealand pursuant to a Hague Convention order made by a Court of an overseas country:

(ii)

the applicant returned the child to New Zealand voluntarily to resolve custody and access proceedings in respect of the child:

(iii)

the applicant, being or having been in a relationship with a New Zealand citizen or a permanent resident, or resident who is the other parent of the child, remains in New Zealand following the break down of that relationship in order to resolve custody and access proceedings in respect of the child.

15C.2

This clause applies to an applicant who is a New Zealand citizen, permanent resident, or resident and-

(a)

is the principal caregiver of a dependent child; and

(b)

is in an overseas country that is the child's country of habitual residence; and

(c)

is in that country together with the child for the purposes of resolving custody and access proceedings in respect of the child; and

(d)

is entitled to be in that country for that purpose by virtue of holding an appropriate visa or permit; and

(e)

is in one of the following situations:

(i)

the child has been required to return to that country pursuant to a Hague Convention order made under Subpart 4 of Part 2 of the Care of Children Act 2004:

(ii)

a Hague Convention application has been made under that Subpart in respect of the child and the applicant has returned the child to that country voluntarily.

15C.3

MSD may, in its discretion, make non-recoverable grants to an applicant to whom clause 15C.1 or 15C.2 applies if satisfied that-

(a)

the applicant and the child are in hardship; and

(b)

the applicant has exhausted all financial resources reasonably available to him or her, and is in the process of pursuing any other avenue of financial support that is or might be available to him or her or in respect of the child (for example, employment; spousal maintenance); and

(c)

the applicant is legally unable to work to support himself or herself and the child, or if legally able to work, is unable to obtain employment suitable and sufficient for that purpose; and

(d)

the applicant is taking all reasonable steps to have the custody and access proceedings heard as soon as reasonably practicable.

15C.4

Clauses 6, 9.2, and 9.4 do not apply to grants under this clause, and clause 4 has effect-

(a)

in regard to an applicant to whom clause 15C.1 applies, as if it did not include reference to section 19; and

(b)

in regard to an applicant to whom clause 15C.2 applies, as if it did not include reference to sections 114 and 219.

15C.5

MSD may accept an application for grants in accordance with clause 15C.3 before an applicant leaves New Zealand if satisfied that paragraphs (a) to (d) of that clause and clause 15C.2 will apply to the applicant upon his or her arrival in the overseas country concerned, but no payments may be made earlier than that arrival.

15C.6

Grants under clause 15C.3 may be made on a weekly basis commencing no earlier than the date of application for the grant until the earliest of the following events:

(a)

the applicant becomes legally able to work in the country in which the custody and access proceedings are being determined and obtains employment suitable and sufficient to support himself or herself and the child:

(b)

the applicant becomes eligible to access financial assistance under the social security system of that country that is sufficient to support himself or herself and the child:

(c)

the applicant-

(i)

departs from that country; or

(ii)

ceases to be entitled to stay in that country by reason of the expiry and non-renewal, or cancellation, of any permit or visa:

(d)

the child attains the age when no order relating to his or her possession and care, or day to day care, may be made in the custody or access proceedings:

(e)

28 days after the custody and access proceedings and any appeals from the decisions in those proceedings are finally determined.

15C.7

The weekly amount of a grant under clause 15C.3-

(a)

is in the discretion of MSD but except as provided in paragraph (c), must not exceed the weekly amount set out in clause 1 of Part 2 of Schedule 4 of the Act; and

(b)

must be reduced by $1 for every $1 of the applicant's weekly income instead of in accordance with Income Test 1; and

(c)

may, in respect of the applicant's accommodation expenses, be increased by an amount of not more than-

(i)

where the applicant and child are in New Zealand the weekly amount of an accommodation supplement under the Act that would be payable to the applicant if the applicant were a beneficiary; or

(ii)

in any other case, the weekly amount set out in clause 1(a) of Part 7 of Schedule 4 of the Act having regard to the circumstances of the applicant and his or her actual accommodation expenses.

15C.8

In clauses 15C.1 to 15C.7,-

custody and access proceedings-

(a)

means proceedings for an order (however called) relating to the possession and care, or day to day care, of a child; and

(b)

includes proceedings-

(i)

for an order (however called) relating to access to or contact with a child: or

(ii)

for a parenting order under the Care of Children Act 2004

Hague Convention application means an application for a Hague Convention order

Hague Convention order means an order for return of a child to the child's country of habitual residence made by a Court of a country that is a party to, or has ratified or acceded to, the Hague Convention on the Civil Aspects of International Child Abduction (as set out in Schedule 1 of the Care of Children Act 2004)

permanent resident has the same meaning as in section 4 of the Immigration Act 2009

resident has the same meaning as in section 4 of the Immigration Act 2009

15C.9

In this clause, the definition of "Parent" in clause 3.1 does not apply and the following definition is substituted:

"parent", in relation to a dependent child, means-

(a)

if the child is in the custody or care of only one Parent, that Parent; or

(b)

if the child is not in the custody or care of either of the child's Parents, the principal caregiver of the child,

and in a case of joint custody, in deciding whether paragraph (b) of this definition applies and which of the child's Parents ought to be considered as the child's Parent, MSD may have regard to the provisions of sections 195 and 196 of the Act to assign responsibility for the care of the child to one or other of the child's Parents.

Definitions child, Income Test 1, MSD, principal caregiver, Social Security Act 2018, Schedule 2