McCarthy is one of two single parents taking his case to the Human Rights Review Tribunal with the help of director of human rights proceedings, Greg Robins.
McCarthy previously filed a petition to Parliament challenging the policy, noting it discriminated against single parents and failed to protect children from the consequences of that discrimination. The petition is on hold while the human rights case proceeds.
He discovered he could not get assistance when he sought help for childcare while studying a diploma in psychology and was told he was ineligible.
On appeal, McCarthy said it could not be determined whether he or his ex-partner was the primary caregiver, so the Ministry of Social Development (MSD) deemed that neither of them were – meaning neither were allowed to receive the benefits.
He said the legislation needed to change to keep up with the way society had changed.
“If you trace the legislation back … when it was first set up, structures of society were that dad went to work and mum stayed home. Society’s moved on, parenting is now 50/50. Legislation hasn’t kept up.”
McCarthy works but makes only a low wage and finds he is “constantly playing catch-up” with bills.
Due to a change in custody circumstances, he recently began receiving a reduced sole parent benefit.
He felt frustrated and annoyed with the MSD’s response, because raising the issue was only ever met with “we can’t do anything”.
“To me, it’s a bit of a cop-out saying it’s the legislation,” he said, adding more should be done to push change in that case.
“All sides of the House are saying ‘we’re putting children first’. When? How?”
Greg Robins, of the Office of Human Rights Proceedings, said it was happy to support the challenges to the law and was awaiting a hearing date.
“It seems unfair that the ministry can’t pay two parent rates, or at least apportion the rates between them,” Robins said.
“Aside from the real impact on the parents, the kids can also suffer: if the parents share 50-50 care, but the law means they’re not paid fairly, that could harm the kids’ relationship with one or both of their parents. That is a real tragedy.”
Father living in tent with sons says system ‘doesn’t fit’ everyone
Even in the middle of winter, Matthew’s* children think it’s a bit of an adventure sleeping in a tent, bundled under thick layers of blankets.
He’s done what he can to make the tent a home. There’s a mattress stacked on crates and a small TV. It’s pitched in a friend’s backyard. This is where he lives with his two high-needs, autistic sons for the half of the week he has custody.
Matthew used to have a roof over his head – a small house he was able to rent for $160 per week, including power – but he gave it up because he couldn’t afford to feed, clothe or otherwise provide what his kids needed while still paying rent.
He has slept on friends’ couches, in his car and at his mother’s retirement village but ultimately ended up in the tent, where he has been living since March last year.
“Yesterday I spent more time crying than I did breathing,” Matthew said during an interview with the Herald.
He believes if he could access more Government support, he would not be in such dire circumstances, but he has been denied any of the various benefits available to parents because the Ministry of Social Development did not consider him to be a primary caregiver, even though he had 50/50 custody of the two children.
Possible help includes the sole parent benefit of nearly $500 per week after tax, the child disability allowance of $62 per week per child, and a respite care payment.
Matthew has been declined any of these supports and instead lives on about $340 per week. He said he could not work because his boys, when in his care, required fulltime attention.
The pre-teen children were expelled from their school this year due to unsafe behaviours, but even while attending, he was unable to hold down work while being called out regularly to pick the boys up. Even so, he felt he was better placed to address problematic behaviours as they developed while parenting, than to allow them to continue with less consistent supervision and correction in school.
He pours the energy he has into finding activities to keep the children entertained and active, and trying to correct their behaviours.
Last winter was manageable and he believes this one will be too.
“They love this lifestyle, camping. I don’t, but they do,” he said.
Even though he has ended up homeless, Matthew still believes the system and its restrictions work – for most people.
“In my situation, the system doesn’t fit me.”
He was proud to live in a country that provided for its citizens, and was grateful for what he did receive, but wanted the policy to recognise the complex situations parents with shared custody found themselves in.
“I would like to see somebody give me half of the money that is for the children so I can give them the lifestyle they require … I want to be able to buy them a nice jacket for winter.”
Dad fears he will never be able to have his kids again due to ‘incredibly broken’ policy
Another father said the stress of trying to provide for his children without the assistance his ex received drove him to a suicide attempt.
Hutt Valley man, Gary*, had previously held down a steady job in information technology (IT) for decades before the relationship breakdown, and after a lengthy separation and custody battle was able to get 50/50 custody of his two children, aged under 10.
The stress of the court battles, however, took their toll and he was unable to hold down his job due to declining mental health. His ex receives all the benefits for the children as he is not deemed to be the primary caregiver.
Gary filed an appeal with the Ministry of Social Development, but ultimately abandoned the appeal as he was advised the circumstances were unlikely to change.
He receives about $480 per week from the Jobseeker benefit, Accommodation Supplement and Winter Energy Payment, as well as roughly $120 a week from a part-time job, but after mortgage payments come out, he is left with about $150 per week to cover all his bills, including food, power, internet and transport.
Parents say they are struggling to get by without extra support to help them with their children.
On top of this, he is now more than $15,000 in overdraft and expects he may soon have to sell his house. A few weeks ago, he was rejected for three jobs he was qualified for, he said.
The stress of trying to care for his two kids – one of whom has ADHD and suspected autism – on little money came to a head for him late last year after a particularly hard morning. He texted his psychologist that he planned to take his own life, then put his phone on do not disturb.
His psychologist arrived at his home, banging on the door, as he prepared to kill himself, he said.
Since then, Gary has asked his ex to have the children until he can get better and start making enough money to support them.
“At this stage, I don’t know if I will ever have my kids again,” he said.
Gary said the policy blocking him from access support for the children was “incredibly broken … the person who actually needs the assistance gets completely locked out”.
“No one at MSD seemed to want to help me.
The Human Rights Commission is taking the matter to the tribunal.
Social Development Minister Louise Upston declined to be interviewed on the issue, or answer further questions beyond what she provided in an earlier written statement, which said the sole parent support was designed to help single parents get ready for work or find part time work.
“I am aware that shared custody arrangements can be complex and it can be difficult for people in those situations. I have no current plans to change the policy settings,” the statement said.
The MSD said the sole parent support was designed for situations where a single parent was the primary caregiver of any children.
If the MSD could not determine who the primary caregiver was based on factors laid out in legislation, the act required parents to come to an agreement over who was more responsible for the children, group general manager of client service delivery Graham Allpress said.
Sections 195 and 196 of the Social Security Act outline what is taken into account when considering who has greater responsibility.
This included evidence of who arranged daycare or schooling, medical appointments, previous applications with Work and Income for other support related to the children, evidence of adjusted work arrangements for the purposes of childcare, and any Oranga Tamariki documents.
They also considered who paid more for the children and who decided about their daily activities, among other things.
Parents could apply for a review if they disagreed with the decision.
*Names have been changed.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 12 years.