How are you? I need find out if I am from SOUTH AFRICA and my minor child was born 8 months ago but we dont have

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Customer: How are you?
JA: I'm good, thanks. How can I help?
Customer: I need find out if I am from SOUTH AFRICA and my minor child was born 8 months ago but we dont have residency in NZ and I want to return to my home country. Can the father stop that if the child is also not a citizen not the dad
JA: Who currently has legal custody?
Customer: Well both I suppose. There is no order
JA: Is there a child custody order in place?
Customer: no we are not NZ citizens
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no
Answered by Chris The Lawyer in 1 hour 2 years ago
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Chris The Lawyer
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Chris The Lawyer
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Chris The Lawyer
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Chris The Lawyer, Expert

Hi
I am a New Zealand lawyer based in Wellington and will help you with your question today. Please give me a minute to read your question
Customer
Thank you
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Chris The Lawyer, Expert

Normally the test is whether the child is ordinarily resident in New Zealand and then you cannot take the child out of the country. But in your situation I assume you may have intended to return to South Africa but Covid
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Chris The Lawyer, Expert

Is that the position?
Customer
I have a work to residency visa, I support both my childs father and both my kids visas based on my visa (the baby doesnt have a visa yet as she is still awaiting her passport from SA). What is his rights? If I cancel my visa will everyones visa not be cancelled too and then I can return home with my kids? We only have temporary visas currently. We dont have residency in NZ
Customer
He can’t keep her here because he would need my approval therefor too is that not right?
Customer
Our relationship is on the verge of ending and I want to go back home as I have no family here
Customer
the baby is a SA citizen and not a NZ citizen
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Chris The Lawyer, Expert

If you were to return to South Africa you could ask him about permission but if he is dependent on your visa he may end up having to return anyway. If you think he will be difficult you could apply to the Family Court for parenting orders and permission to take the youngest child
Customer
But isn’t that what would happen that she would return when I go back home too? I mean she is not a NZ citizen, on a temporary visa (mine) and she won’t get a new visa because I won’t agree to her being granted one
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Chris The Lawyer, Expert

Is is doubtful the child is ordinarily resident in New Zealand so it may not be too difficult but I assume you were intending to stay but for the relationship ending. The father could say that the child is in fact ordinarily resident and try to stop you taking the child
Customer
if he applies for a visa in his own right and want to include her and I dont give permission then she wont get one and would have to return to SA in any event?
Customer
I also have two previous safety orders against him from the NZ Police. Which I believe will count against him at INZ
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Chris The Lawyer, Expert

He could not get the baby on his visa if you don’t consent. But the safety orders will help you to get a parenting order and permission to take the child
Customer
then if he tries to keep her here by applying for a visa and I dont consent then she will not be able to stay here? Also, what can he do to try and keep her here?
Customer
What are my best options to go back home and take my baby with?
Customer
what are my chances in succeeding?
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Chris The Lawyer, Expert

The safest option is to apply for a parenting order and permission to take the child in the Family Court
Customer
But he can defend that?
Customer
If I ask INZ to deport me, they will deport me with my minor children is that not right? And doesnt Immigration Law surpass Family Law
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Chris The Lawyer, Expert

He can defend this, but the issue of deportation is more complicated. Probably you could take the child if you are deported

Customer
Can he try and keep her here if I ask to get deported?
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Chris The Lawyer, Expert

He could try although if you have to return it may not succeed

Customer
if I get deported then my children wil automatically have to return with me?
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Chris The Lawyer, Expert

That is where it gets complicated because he could try and stop the deportation of the child

Customer
But I am the mother And I dont consent to her staying
Customer
I mean as mothers we get primary care
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Chris The Lawyer, Expert

Under New Zealand family law there is a balance of the issues. Based on what you have told me I think it is likely you will be allowed to take the child if you apply to court for permission

Customer
This is how he hurt me
Customer
Can you elaborate on the balance of issues? Is there any legislation you can refer me to or send me as I have law background so will understand.
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Chris The Lawyer, Expert

Has he been charged with assault? If he gets convicted of an assault he would be deported, which would resolve the issue in another way.

Customer
Not yet because they said it could take two years
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Chris The Lawyer, Expert

The Care of Children Act recognises that both parents have a role in raising a child. Even if the father has assaulted you that does not mean he is a bad father. So if you take the child out of New Zealand he would need to travel to South Africa to see the child, and you will know how much that costs. But the prosecution for assault would not take two years although that depends on whether he defended the charge

Customer
I understand. But if Sputh Africa is our home country and not NZ surely that counts for something
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Chris The Lawyer, Expert

It will be an important factor in deciding whether you get permission. But until the relationship went bad I assume you intended to stay in New Zealand, and that your partner also wanted to stay here

Customer
we both wanted to stay but I have no support here
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Chris The Lawyer, Expert

I understand that. It is part of the picture, but as I mentioned you are likely to get permission because of this. But it would be wrong for me to say this was a definite result. My experience of court is that results can be unpredictable.

Customer
if it doesnt go as planned he gets full rights?
Customer
Would he be able to get another visa based on the two safety orders?
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Chris The Lawyer, Expert

The safety orders may mean he cannot get another visa. If a court conviction for assault was added to this, he is rather unlikely to get renewed. If it doesnt go as planned and you get stopped, you could still maintain your New Zealand visa and stay and he would be unlikely to do better than supervised contact with the child and not equal parenting

Customer
how would I go about maintenance
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Chris The Lawyer, Expert

You can apply for him to be assessed for child support through Inland Revenue. If you are in South Africa you would need to apply there and enforce that in New Zealand if he was still here

Customer
Is there a way if I send immigration these safety order that he could still pass and get another visa because his partnership visa will be cancelled
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Chris The Lawyer, Expert

I think he is likely to be deported since you are not supporting his visa

Customer
Okay but I am sure immigration will give him options. If he decides to apply for another visa, what is the likelihood of him getting one with the safety orders against him and would that not questions his character?
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Chris The Lawyer, Expert

That is why I think it unlikely Good character is a requirement for a visa as you know. That's why a police complaint would add to the difficulties.

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