The Family Advocate Volume 26 Issue 4

The Family Advocate

From the Chair

BY r ICHA r D SMI t H

Tēnā koutou katoa

Nō ingarangi ōku tīpuna

Ko Te Tihi-o-Maru te whenua tupu

Ko Waihopai te kāinga

He roia ahau

Ko Richard Smith toku ingoa

Tēnā tātou katoa

It is a privilege to be chair of the FLS, albeit at this time an interim one…. I have been in practice for 20 years, starting out in Oamaru, moving to Invercargill (for no more than two years in 2007) and somehow still being in Invercargill. I am a barrister and practise in both the criminal and family jurisdiction as well as working as a youth advocate and in mental health. I have been on the FLS executive since 2019. When I reflect on being on the executive there are three main things that come to mind.

First, the amount of influence and respect that the FLS has. We have direct input into legislation, policy and court operations. It is common for us to hear from our members about an issue and to be able to raise that directly or with those in power, we can and do make a difference. Second, the role of the FLS in terms of family law, consulting on bills,

rule amendments and discussion documents and appearing regularly at select committee hearings. Having a direct role in our democracy is something that I am so proud of, particularly when the rule of law around the world continues to be undermined. Third, being on the executive and being involved in all of the discussions, issues and the matters that come before us make me better. I have better knowledge, and I learn from all of the colleagues that I have on the executive which make my practice as a lawyer better.

When panicking about having to write this column and seriously considering relying on AI, it got me thinking about where this year has gone and what is on the horizon.

When I reflect on the last six months for the FLS it has perhaps been the busiest time since I have been on the executive. It shows no signs of slowing down and there is plenty more work to do this year. In terms of law reform, FLS has prepared twelve submissions since December on topics ranging from mental health, remote participation, the extension of jurisdiction for Family Court Associates, proposed amendments to the Family Court Rules and court etiquette. Five of these submissions were due in December. As always, we are very grateful to members of the FLS advisory panel for volunteering their time to work on these submissions most of which are due under incredibly tight timeframes.

The last few months have also seen the FLS deliver some excellent learning on communication assistance, appeals from the Family Court, relationship property and situational safety. There are many more educational opportunities coming.

The Family Law Conference will be held in Auckland on 15 to 17 October. The theme is ‘The Future Is Here’. I have to confess I already have my outfit for the dinner, which I have put some time into and so

to make the most of it I will be wearing it for the entire duration of the conference.

As you will know CLE recently integrated itself into NZLS. FLS have been working closely with the new general manager of CLE, Michael Fraser, on educational content for family lawyers.

The FLS recently held an election for three vacancies on the executive and I welcome back to the executive Nazmeen Rasheed, Liz Lewes and Stephanie Ambler. I am grateful to have their skills, ability and passion on the executive.

The government has recently announced it will undertake a review of legal aid. Last month we called for expressions of interest from FLS members to form a working group so that we can make submissions when the time comes. Our warm thanks is extended to those who have volunteered their time to be part of this group.

Since the introduction of the representative membership fee by the Law Society, we have seen the numbers joining FLS increase dramatically. We currently have just over 1,700 members. Make sure you download the Law Society app and see all the benefits that come from your membership both with the Law Society and the FLS.

It is with sadness that Lauren Pegg has finished her role as Chair and finished her time on the executive. She will be missed and her hard work and dedication to the FLS is greatly appreciated.

The pressure on us as family lawyers just seems to increase, with little light at the end of the tunnel. Just remember we are all dealing with this in our own way and treating each other with kindness and respect is more important than ever.

I look forward to working with many of you over the coming months and I hope you enjoy this edition of the Advocate ▪

Ngā mihi nui, Richard

From the Editor

BY EMILY S t A nn A r D

Kia ora koutou katoa. Nau mai haere mai ki te tānga takurua ki Te Advocate. A huge thank you to everyone who has helped bring this edition together. I would like to acknowledge the passing of Judge Sir Peter Trapski, a former Chief District Court Judge. He made a huge contribution to family law and we will have a full obituary in the next edition.

One focus of this edition is wellbeing. The FLS is committed to helping its members in the wellbeing space, and there is an article on the support that the FLS provides. Since I have been lawyer for child, I have done professional supervision which has been a safe space for discussing difficult files and how I respond in stressful situations. Having someone completely outside the profession to work things through has been a game changer. I have at times, gone into a session thinking the problem was impossible to solve and after discussing it, coming out with the plan on how to manage a particular file, and feeling a lot calmer! I was a bit unsure at first, but now it is very much an integral part of both my practice and how I manage stress.

This edition includes a series of mini interviews on supervision, from a

supervisor and some practitioners about their experience with supervision, and its benefits. Thank you to everyone who agreed to be interviewed. As part of this wellbeing focused edition, we are giving away two copies of Why has nobody told me this before? by Dr Julie Smith, which has some really great practical strategies for managing stress. Earlier this year, we spoke with Sara Fisher, Senior Associate at McWilliam Tyree who practises in Napier. She spoke about her experience with Cyclone Gabrielle as part of our practising well initiative. Sara’s interview will shortly be available on the FLS website. When dealing with a file that is causing significant stress, it can be useful to know when it is possible to terminate a retainer, and what to put in a rule 88 application. We have updated an earlier article, first published in volume 20, issue 1.

Retired judge John Adams is this edition’s featured interviewee. He has had such an interesting career, and he was very generous with his time and open about the highs and lows of his career so far, both within and outside the law, including being an author. There are two book reviews of works by judges in this edition, Greene Lyon by Judge Alan Goodwin and Half Way To Every Where by Judge Vivienne Ullrich KC.

At the end of March, the wonderful Lauren Pegg stepped down as FLS chair. Her dedication to the role was so appreciated. Richard Smith is our new acting FLS chair and I am really looking forward to working with him moving forwards. We also have a new advisory panel member, Vanessa Curac. She will be a welcome addition to the panel. Several new FLS representatives have been appointed: Anna Venz (Central Otago), Rachel Walsh (Canterbury-Westland) – as co-regional representative with Amy Lake, Fiona

Patterson (Waitākere), Sarah Lister and Jo Naidoo (Hamilton), It is really exciting to have them on board. The regional representatives do so much for FLS members throughout the motu.

The Supreme Court’s decision of Alalääkkölä v Palmer1 has recently been released. Martha Wilson has helpfully summarised the decision which focuses on whether copyright is property for the purposes of the Property (Relationships) Act 1979. It addresses different types of copyrights and how they can each be valued.

The introduction of the Family Court Associates (FCAs) has been a huge help in speeding up the court process in the Hawke’s Bay and I am sure that is the case for many other regions. One difficulty we have had is that FCAs cannot make orders by consent on the papers in certain situations. This has meant the FCA needing to hold a teleconference to confirm a consent in some situations. The Regulatory Systems (Courts) Amendment Bill addresses this issue, alongside other issues regarding court security and other FCA powers. The FLS has completed submissions for the select committee and recommended that the Care of Children Act 2004 (COCA) be amended to allow FCAs to make consent orders on the papers. A summary of the FLS submissions is included in this edition.

As the days get shorter and colder, I hope you all keep well and take time for yourselves. Thank you again to everyone who contributed to this edition. ▪

Noho ora mai, Emily

1. Alalääkkölä v Palmer, [2025], NZSC 9.

John Adams

Where did you grow up?

I grew up in a small village called Walton near Matamata. I went to the local primary school and then to Matamata College. My father was a builder and my mother was a primary school teacher.

Why did you want to be a lawyer?

There is kind of a quirky thing about this, I had no contact with any lawyers or the law. We lived in a relatively isolated situation. We were a mile out of the village on a quarter acre section, cut off from one farm so we were situated like a farmer’s place and I read a lot, and I got this idea that I would like to be a policeman. In those days you had to be a certain height to be a police officer, and I realised that I was never going to get to that height. So, I changed my idea and decided that being a court lawyer might be the next best thing and so I became interested in that career. So, when I was 12, I was about to go to secondary school, and the teacher asked what I wanted to do in life, I said I wanted to be a lawyer. My mother looked rather surprised to hear this as it was the first she’d heard about it. And the teacher asked, why do you want to be a lawyer? I said, well, because I don’t think I’ll be tall enough to be a policeman.

Where did you study?

I studied law at Auckland University. In fact, I’ve done a swag of degrees at Auckland since, because I went back in my 60’s to do a whole lot of English papers of various kinds.

Where was your first job?

I had jobs during university holidays as a freezing worker, builder’s labourer and that sort of thing, my first law job was at Whangārei with a two-partner firm, Thorne and Dallas. I did a variety of conveyancing at a very low level and common law work at a very low level for about 2 1/2 years and then took off to the UK for the old OE and I was away for about 16 months or so and

then came back and I was in Auckland after that, with Cairns Slane.

How did you decide on Family Law?

At university I was interested in family law, I quite liked the human interest and from my first job I kind of took to family law. It was quite an exciting time because the then new 1968 Family Proceedings Act and the 1968 Guardianship Act were just coming into force, and I was in the cohort that had studied those things at university, so it was kind of like the beginning of modern family law.

“So, when I was 12, I was about to go to secondary school, and the teacher asked what I wanted to do in life, I said I wanted to be a lawyer”

Then when I came to Auckland, I worked with Cairns Slane who did quite a bit of family law work and we just kind of grew, so by the time I left there to go out as barrister we had a department of about five of us working on family law.

Other than family law, conveyancing and common law, have you practised in any other areas of law?

No, and in family law I didn’t really do any kind of child welfare or Youth Court work. So, when I became a judge, I had to learn about what was then the Children, Young Persons and their Families Act. I’d

done no mental health work. Towards the latter end of my working as a barrister, I did a lot of relationship property work, maybe 60% of my practise and about 15% of my practise was counsel for child work and I did a bit of acting for parents in what was then called Guardianship Act work. I did a little bit of mediation towards the end of my barristerial life.

How did you get into being a mediator and arbitrator? What drew you to that area of work?

I’ve not really done any arbitration, and I’ve now stopped doing mediation. When I was practising as a barrister, Judge Mahony, who was then the Principal Family Court Judge, invited a group of people, psychologists and a couple of lawyers, to a workshop with John Haynes, who was a mediation guru from New York. He was a big selfseller, but he was brilliant. He was the sort of mediator who kind of walked on water. And so, a group of us who attended that, psychologists, lawyers and others, got together and decided to upskill ourselves in mediation. We had these workshops or retreats once a year at Tauhara, Taupō, and we’d go there and take over this whole place for the weekend and we’d contract with one another to run sessions and just pulled ourselves up by our bootstraps. It was exciting, and I think mediation is a very civilised way of resolving disputes.

You convened the introduction to family law course. What was it like running that course?

It felt like a huge privilege to be running that course because it kept me in touch with fresh, idealistic, enthusiastic family lawyers. For 30 odd years, I was running that course. I’ve just recently handed over the reins to Judge Hana Ellis, who I think is ideally suited to take over what I was doing. She’s kind to the lawyers and she likes to see lawyers succeed in what they’re trying to do, to see them succeed professionally.

“Another thing was just maintaining my role as a judge. Before I became a judge, and not thinking about being a judge, I was looking for something interesting to do and I enrolled for a clowning workshop”

at the beginning, but we started off with transactions. The first exercise was in pairs, one person had to offer a gift to the other person and the other person had to receive it and, just looking around the room, I was surprised how many people found it difficult to accept a gift in a gracious way. It’s kind of interesting because clowning is all about putting out a provocation and the other person accepts it and so the thing kind of builds and there’s a positive aspect flowing from the interactions, which is a good model for life really. But it also taught me that you can inhabit a role, and being a judge is very much about inhabiting a role. You have to do things that decent people wouldn’t want to do like send people to prison or take the day-to-day care off a parent who desperately wants to look after that child or things like that. Sometimes your back is pushed against the wall when you’re a judge, and you must grow up a bit. It’s what I experienced anyway. And you also have to learn to keep your trap shut. Sometimes, you had better pause instead of saying the first thing that comes into your head, because it wouldn’t necessarily look that good on the front page of the paper, and you would be seen to be the idiot that you probably are inside. I’m not saying it’s artificial, but it is a role, and you must play it and be like the parent in the room or like tangata whenua hosting on the Marae.

I’m not sure whether you would call this a challenge, but as my judicial practise continued, I started to concentrate more on the actual case in front of me and the people in front of me rather than getting carried away with sparkly bits of law where I thought, oh, that’s something interesting. I started to see that my most important job was to bring these people to a resolution that was sensible, that they could accept, or at least that I could give decent reasons why they ought to accept it. I never minded people appealing but I think a first instance judge should try and resolve the matter (according to law) as far as possible.

Another exciting challenge was dealing with the multicultural communities in my courts, particularly Manukau, and perhaps to a lesser extent Waitākere, making the law work for different peoples, all of whom are New Zealanders, in one way or another. I really found that a daily challenge and it stretched me, and I think I benefited from that. Alongside that, associated with being a judge, I learned that there was this whole other thing going on in New Zealand, Te Ao Māori, which for me, even though I’ve grown up as a kid only a short distance from Waharoa, which has been a very important centre for some Waikato culture, I knew nothing about it really, nothing of any meaningful kind, so discovering that there was this whole

other kind of life going on in New Zealand that I hadn’t really appreciated was kind of exciting, daunting, at times awing. That discovery was a privilege that opened my eyes.

And the other challenging thing, is that there was a big challenge for me personally, in 1999, when I was four years into my judging career and my older son, then 25, suicided. He had been mentally unwell since about age 17. That was a hugely sorrowful thing for me, but it was also very grounding. So, when I went to do mental health work as a judge, something that I’d had prior involvement, only as a parent, not in any other sense, I didn’t see the patient as being that much different from me, I saw them as being part of my community.

I think also in criminal matters and family matters I didn’t see the person in the dock or the witness box as a themand-me sort of thing. I saw them, whatever they’d done, as part of my community. That relationship affects how you speak about things, you need to hold a line but you also want to see some growth, some opportunities for change. A lot of the time with criminal work, it’s pretty barren, as one colleague of mine said it’s a bit like abattoir work. I think that criminal work, particularly sentencing, is hard on judges. You have to find some way of remembering

“I think, for family lawyers, doing some criminal law work is a good thing because it gives you a keener grounding in evidence”

that this is not the whole world, there are more joyful and productive aspects of life.

What advice would you give graduates starting in family law?

I’m slightly shy about saying you should do this, and you should do that. But there are a few tips that I would offer.

I think, for family lawyers, doing some criminal law work is a good thing because it gives you a keener grounding in evidence. I think some family lawyers lose sight of the fact that evidence is important, and you’ve got to establish a case or, having established a case, persuade the judge that they ought to pick up their pen and do what you want them to do.

Finding that balance between empathy and over-involvement with your client’s case, keeping some professional objectivity, but being humane about it is important. And remaining buoyant amid the toxicity. One of the things that I found the most wearing in family law were the cases where people are bitter and just want to cause trouble for their former partner. I think that’s understandable, but it’s not nice to be around.

Getting a good mentor is a good thing. And follow an experienced practitioner, to glean knowledge from them.

Staying in role as your client’s lawyer and not getting off that bike and starting to try and beat up the other lawyer.

Discovering the theory of your case and sticking to it. Becoming a more powerful, more honed advocate, which can start at the very earliest stages.

Be considerate to those you deal with including court staff, the other party, the

other lawyers, judges, thinking about the situation of all those other people and making space for them all, taking their needs into consideration.

Aim to do your best work as much as you can. Whether it is drafting documents or affidavits or memoranda. And thinking about your case, not just doing everything by rote, but sitting back and thinking what’s going on here for my client? What is she or he going through, not just in relation to this case, but their life? What’s important for them?

And developing strategies, not just plodding, saying we’ve got to this station, now we’re going to that station there, and then we’ll go to the other station after that. Think of other ways you can plan the journey, can you skip over the stations and get somewhere else by maybe picking up the file, going to see the other lawyer and asking let’s have a chat about this case and maybe moving it a long way forward.

You also write fiction – poetry and prose. How did you balance that with your legal career?

I’ve always been interested in language and in reading and writing. It wasn’t really until I was about 60 years of age that I decided to give permission to think of myself as a writer. One of the small things that happened, as a judge I went to the judgment writing programme which was then led by Professor James Raymond from Alabama. One of the things he said was, you guys are judges, but if you go to a party and people say, what do you do, and you say I’m a judge, well, they’ll start looking around for somebody else more

interesting to talk to. But if you say oh, I’m a writer and they’ll say oh, what do you write? You say, well, crime, sex, that sort of stuff, and they say ah, right, and they’ll be rushing off to get you a drink and sit down and talk to you. I know that’s kind of comical, but I thought, yeah, I think I am a writer and so I went and did this master’s in creative writing at Auckland University, which was a fulltime course, and my wife, Usha, did all the domestic chores for a year while I held down a full-time job and she had a full-time job too as a barrister. I was doing this full-time university course, and I wrote a collection of poetry called Briefcase, which won a prize for being the best first poetry book published in 2011. It was about an imaginary protection order case and associated criminal case where an imaginary lawyer threw a stapler across the room and hit his wife in the face, and the question is, did he intend to do it, or didn’t he intend to do it?

But what I was most interested in, was the release of the different kinds and forms of language in probation reports, neighbour’s comments, what the police officer wrote down, what happened in court, cross examination, all the different kinds of language that flow out from a small act like that. One of the poems is called How to Cross Examine, which is tongue in cheek, but it has also got bits and pieces that I did use in cross examination.

One of the things I missed as a judge was cross examination. Some lawyers might say I didn’t miss it as much as I ought to have, but you have to sit there and listen and sometimes you think, I could do better than that, but then sometimes it’s wiser to

sit back. I wasn’t always wise, but I was always interested to find out what was really going on.

Following that year at university, I got the bug for more tertiary education, and I arranged ultimately to go part time as a judge. I corrupted my friend, Judge David Mather, into going part-time too and we job shared for a period of time. We did alternate fortnights, then later I did alternate four-week periods, and I did a number of degrees and ended up quitting judging and going and doing a PhD and then coming back for a final run with an acting warrant, which I really enjoyed. My writing was even better as a result of having been corrected so much in my PhD writing. My supervisor was cruel. I mean, I’m very fond of her, but she was really cruel, in a good way.

I’ve published three books of creative writing, two of poetry and one of short stories and I’ve got another poetry collection ready to go. I found that channelling my mischievous, playful traits into creative writing helped me maintain a more seemly tone in my judgments. It was an outlet that I think I needed. I love the challenge of writing clear and persuasive judgments, and I enjoy teaching paths to doing that which I’ve been doing, not only with judges in New Zealand, but with other people I teach decision writing to, other organisations in New Zealand as well. And I’ve recently been doing some work in the Pacific, so in the last 12 months, I spent nine weeks in various places in the Pacific, Solomon Islands, Marshall Islands, Micronesia, Tonga, Cook Islands teaching, among other things, judgment writing and other judgey sort of skills.

What do you do in your spare time?

Spare time hasn’t quite been attained yet, but I do have quite a few interests and when I started to list them down there’s quite a long list. I’m not sure if you’d call this an interest, but I’m Deputy Chair of the Lawyer’s Disciplinary Tribunal and, for example, this morning I received a new file, so I had to read through the material, and

it will take a little time to come to hearing and we don’t know whether the lawyer is going to say yes, I confess I did something wrong or whether they’re going to say no, I oppose this. But it’s typical that almost most days I’ll get something to do with the disciplinary tribunal, which may take 15 minutes, half an hour or if I have a hearing, may take an hour or two hours.

This morning I’ve been rewriting a poem. I decided that my first attempts of this were too tight and convoluted and I’ve been playing with it, teasing it out, teasing

“So far, I have had an interesting career. Not everybody likes their legal career but I really enjoyed mine”

myself and I’ve spent maybe an hour and a half on that this morning. I’ve been working on this poem for about three months or so, and I’m wondering am I getting anywhere? I hope I am. Other things just come quite quickly. You can write them down and they’re almost there. Writing poetry is an almost daily occurrence. Last night I had a meeting of my writers’ group. We sat down and critiqued three bits of work that members had produced in the previous month.

I teach judge craft and mediation and decision writing. I also mentor and co-mentor other writers and occasionally judges, sometimes informally and sometimes judges from out of New Zealand as well as New Zealand judges. Sometimes a judge will send me a draft and ask my opinion about the way it’s expressed. I’m not suggesting how they should decide it, but helping them to frame it up. Writing judgments is a difficult art. When you’re a lawyer, you think that it looks easy. Many people can do it, but doing it well is something else.

I also write songs, and I play music

with a couple of groups of people. I work supportively with the Sargeson Trust, which provides fellowships for writers. And, of course read, both poetry and novels. I hang out with my grandchildren who live in Tauranga, three boys nine, seven and five. We go down there quite often. I go to the gym, walking, tramping. About this time last year, I did the Paparoa Track in the South Island, which is a four-day trek.

And we’ve had a bach at Waiheke for the last 20 plus years, so we go over there sometimes. So, spare time? There’s always something I can do.

Is there anything else you would like to add?

So far, I have had an interesting career. Not everybody likes their legal career but I really enjoyed mine. I am interested in law as a thing, but I’m even more interested in helping people to find it possible to live their lives in an easier way, so that they can achieve their potential, personally and in their relationships and in the balance of their lives as well.

I’ve been fortunate. My family of origin may have been somewhat boring, but they were very reliable and dependable and I had an easier run than many people I’ve dealt with professionally who’ve had a grim life. They’ve had terrible things to overcome so, I’m often admiring of how far some people have gone, and even those who may seem to have failed in many ways may nonetheless have done very well against what they might have done given their backgrounds.

I’ve had contact with many young family lawyers coming through over 30 years, some of those young lawyers are considerably senior now. I do feel that family law is in good hands in New Zealand in terms of the lawyers coming through, the attitudes they’ve got, it’s cool to be associated with that group. Even though I’ve stopped teaching that particular course, I still have an interest in the lawyers, their attitudes, the practise of law and am very keen to see them flourish. ▪

The benefits of being on the FLS executive

Colin Abernethy

We spoke with Colin Abernethy, FLS treasurer, who shared his whakaaro about being on the FLS executive.

How long have you been on the FLS executive?

I first joined the executive in June 2022 when I was appointed to fill a casual vacancy. In March 2024, I was elected in my own right to start my first three-year term.

What does the role entail?

So much good stuff! I currently occupy the treasurer’s role on the executive. In addition to weekly zoom meetings with the leadership team (chair, deputy and manager) to address urgent issues impacting FLS members, alongside our manager (and all-round legend) Kath, I keep an eye on the budget, income streams and expenses to make sure everything is ticking along to plan. I report to the executive group at our in-person meetings every second month (usually in Auckland, Wellington or Christchurch). In terms of being an executive member generally, I also get involved in a range of different projects with a goal of improving outcomes for FLS members and family law generally including law reform submissions, facilitating CPD, advancing wellness/safety initiatives, organising social functions and opportunities for FLS members to connect, reviewing regional representative reports to promote national consistency and raising issues via key relationships with the Ministry of Justice, Family Court judiciary, Oranga Tamariki, the Law Society, and others.

What, in your view, are the key bits of work that the FLS does?

Over many, many years the FLS has

secured, maintained and strengthened important relationships with a number of key people and organisations in and around the Family Court including the Principal Family Court Judge, the chief legal of Oranga Tamariki and senior officials at the Ministry of Justice. Our manager, chair and deputy meet regularly with these people and I believe those connections are critical as it means regional issues for FLS members can be quickly identified and raised at the highest levels – with information then being fed back to FLS members via bulletins.

The executive also regularly investigates ways the challenging role of a family lawyer can be improved, whether that be via wellness and safety initiatives, advocating for the increase in payrates for court-appointed counsel, the development of guidelines and protocols to improve the court journey and providing and facilitating specialist input into law reform.

What are some of the highlights for you?

He tangata, he tangata, he tangata. It has been very cool to work with fellow executive members from around New Zealand. There are so many really talented people sitting around the executive table who are all passionate about family law and improving outcomes for FLS members and family law generally. It’s inspiring and motivating to be involved in the work the executive does, including being the link between different regions in New Zealand to ensure the knowledge being developed at one end of the country is shared across others. Being involved in media training and statements, law reform submissions (and seeing those presented at select committee hearings or participating in meetings with Members of Parliament and facilitating educative events for FLS members has all been really fulfilling.

I also bloody love a strategy plan and really enjoyed being on the executive working group who developed that!

What would you say to someone considering standing for the FLS executive?

Please do! When I first joined the executive, everyone was really supportive and welcoming. Any concern about additional workload quickly disappeared when I started to experience the exciting and motivating work the executive does. It’s awesome to be part of such a dedicated team. ▪

Alalääkkölä v Palmer

Copyright under the Property (Relationships) Act 1976

BY MA rt HA WILSO n

On 6 March 2025, The New Zealand Supreme Court (NZSC) released its decision on the appeal of Alalääkkölä v Palmer. The decision has determined how copyrights aquired during a relationship are to be treated under the Property (Relationships) Act 1976 (the PRA). And it was decided that:

(a) copyrights are property for the purposes of the PRA;

(b) copyrights acquired during a relationship may be classified as relationship property; and

(c) the nature of copyrights in creative art gives rise to unique issues for valuations.

Background

Ms Alalääkkölä and Mr Palmer were married in 1997 and separated in 2017.1 Prior to the relationship, Ms Alalääkkölä had a promising career in fine arts.2 During the relationship, Ms Alalääkkölä sacrificed her career as a “serious” artist to produce commercial works to be the primary income earner for the family. Mr Palmer ‘s evidence is that he was a partner in the business which sold Ms Alalääkkölä’s paintings, prints and digital copies of works.3

Positions

Upon separation, Mr Palmer sought transfer of the copyrights in some of the works so he could continue to make an income post-separation. 4 Following the lower courts’ decisions not to transfer him any of the copyrights, in the interest of the clean break principle5 Mr Palmer sought an adjustment from the relationship property pool, rather than the copyrights themselves.6

Ms Alalääkkölä wanted to retain the copyrights without compensating Mr Palmer.7

Copyright as property under PRA

Under the Copyright Act 1994 (the Copyright Act), Copyright initially vests in the author of an original work upon completion8 and affords them the exclusive right to show and release copies of the work to the public.9 Copyrights last for the 50 years following the end of the calendar year the author dies.10 Copyrights are assignable to others.11

The Copyright Act 1994 also provides for moral rights. Moral rights are the author’s right to be recognised as the creator of the work, the right to object to derogatory treatment of the work, and the right to privacy of works intended for private use.12 Moral rights are not assignable to others and expire with copyrights.13

The NZSC agreed with the Court of

Appeal’s decision that copyrights were clearly personal property, and not to be confused with moral rights which are not personal property.14 The Court emphasised that the Copyright Act encourages creativity by allowing creators to be recognised as the authors of their work through moral rights and exploit their work for economic benefit (copyrights). 15

Counsel for Ms Alalääkkölä argued that copyright was not property under the PRA because section 4A provides that the PRA is a code, and contains its own definition of property in section 2.16 It was argued that s 2(e)’s “any other right or interest” should exclude personal attributes like artistic talent and “personal property” and “any estate or interest in any... personal property” should be confined to tangible property. 17

The NZSC rejected Ms Alalääkkölä’s

“Ms Alalääkkölä argued that treating copyrights as relationship property will deter creative activity as artists will run the risk of having the copyrights in their art attributed to an ex-partner”

argument that copyright encompasses the author’s skill and talents and is therefore not property for the PRA18 and emphasised the difference between moral rights and copyrights. The court saw this argument as trying to combine moral and copyrights which the Copyright Act clearly distinguishes.19

Ms Alalääkkölä argued that treating copyrights as relationship property will deter creative activity as artists will run the risk of having the copyrights in their art attributed to an ex-partner.20 This was rejected as anyone concerned can contract out through section 21 of the PRA.21 Further, under New Zealand’s deferred community property scheme, the PRA does not apply during the relationship. The author is the first owner of the copyrights, and remains the owner until it is assigned to another through a court order or agreement executed by the parties.22

The NZSC acknowledged that copyright differs from ordinary property rights in ways that are significant for court-imposed decisions under the PRA. Ms Alalääkkölä had legitimate concerns about Mr Palmer exploiting the copyright in her works in ways that could be derogatory, breach her moral rights, and detract from the value of future works. The example of mass printing her art on cheap tea towels or fridge magnets was given.23 The NZSC thought that orders for division of relationship property should be designed “to minimise conflict in the distribution of property and unnecessary harm to the author’s future reputation and income”.24

The NZSC thought it possible to recognise that art is made by the artistic skill of one partner and also be a product of an effort within the relationship for the purposes of the PRA.25

Copyright as Relationship Property

Ms Alalääkkölä argued that if Copyright was found to be property under the PRA, it must be classified as separate property because it was formed using artisitic skill that pre-dates the relationship.26

The NZSC disagreed with Ms Alalääkkölä, giving “acquired” a wide meaning to include things created by a spouse during a relationship.27 The NZSC also higlighted that the skill went into the works but did not produce the copyrights.28

It was determined that Ms Alalääkkölä was the primary income earner of the family and the work’s value must be brought into account in any settlement.29

Treatment of the works and associated copyrights in parties

RP settlement

The NZSC agreed with Ms Alalääkkölä’s four categories of works holiding different values:

1. incomplete/damaged/unsuitable works;

2. private collection of personal works;

3. one-off unique paintings to be sold on the basis that they will remain the only copy; and,

4. works intended to be copied.30

It was assumed that no works in the first two categories are to be disclosed to the public, and the copyright remains with Ms Alalääkkölä. The only value these works hold for the purposes of the PRA would be in the reuse of the canvases.31 As the authour of the work, Ms Alalääkkölä has the right to decide whether a work is complete, and whether it should be disclosed to the public.32

The works in category three are valued on the basis that they may be sold, but the copyright will never be exploited, and they

will remain the only copies in existence.33

The works in the fourth category shall be valued on the basis that copyrights will be exploited.34

The matter was referred back to the Family Court to value the copyrights and divide the remainder of the relationship property and the appeal was dismissed.

This case has provided guidance for family lawyers when copyright is in issue. The differing valuations for each category may become matters of contention in future cases. ▪

1. Alalääkkölä v Palmer, [2025], NZSC 9, at [13].

2. Above at n 1 at [12].

3. Above at n 1 at [13].

4. Above at n 1 at [17].

5. Above at n 1 at [7]-[9].

6. Above at n 1 at [18].

7. Above at n 1 at [18].

8. Above at n 1 at [18].

9. Above at n 1 at [20].

10. Above at n 1 at [19].

11. Above at n 1 at [22].

12. Above at n 1 at [21].

13. Above at n 1 at [22].

14. Above at n 1 at [24].

15. Above at n 1 at [24].

16. Above at n 1 at [25].

17. Above at n 1 at [27].

18. Above at n 1 at [28].

19. Above at n 1 at [31].

20. Above at n 1 at [33].

21. Above at n 1 at [33].

22. Above at n 1 at [33].

23. Above at n 1 at [34].

24. Above at n 1 at [36].

25. Above at n 1 at [37].

26. Above at n 1 at [38].

27. Above at n 1 at [40].

28. Above at n 1 at [42].

29. Above at n 1 at [44].

30. Above at n 1 at [47].

31. Above at n 1 at [49].

32. Above at n 1 at [51].

33. Above at n 1 at [55].

34. Above at n 1 at [56].

from our own background and life experiences, and I think supervision is useful regardless of what stage of your career you’re at. Having been a latecomer to it, I look back and I wish I had it earlier on in my career. The conversations would have been different, when you’re a younger lawyer or new to family law, your conversations with a supervisor might be a little bit different in terms of the pressures of practice, needing to keep up the billing, targets, all of those things that are quite new to you.

There are still things a supervisor can talk to you about. When you start getting your teeth into the law, say your first OT file or first extreme protection order file or your client who has a bad experience with their children, they address everything, they get their kids back and then revert back to their old life and put the care arrangements at risk again. As a young practitioner it’s still useful to get the supervision regardless of the stage of your career. You don’t know what you don’t know. When you talk to your colleagues, your experiences and viewpoints are all the same, so it can be hard to get a different lens on things and look at things a little bit differently. I think supervision is useful regardless of the stage of your career. The frequency is

dependent on the stage of your career. Starting supervision, they can be quite frequent as you build that relationship and work out how things work, then it starts getting more spaced out depending on when you require. At any stage of your career, the frequency, what you talk about, they’re all different, but it’s still equally valuable whether at the beginning or end of your career.

Katie Lane, Barrister Dunedin, FLS executive member

What is your experience with supervision?

I juggle two types of supervision, individual supervision as well as group supervision. I see benefits in both, and I would encourage anyone to do both sets and not just one.

What have you found are the benefits of each type?

With individual supervision you have the ability to be more open and more honest about issues you’re presenting without concerns about whakamā or embarrassment in front of other practitioners. In terms of group supervision, there are

benefits that it can be quite preventative in terms of issues arising. There might be issues having arisen for other practitioners you hear about and could be on the horizon for you, but hearing about their experiences it makes you more conscious, more aware, and more preventative

What would you look for in a supervisor?

Discretion is the main thing. I know other practitioners use specialist report writers or counsellors that have been appointed by the Family Court. My preference would be to have a distance from that and a comfort in knowing that whoever I am confiding in doesn’t know other people I might practice with or who are in my area.

If you were talking to someone who might be a bit unsure about supervision, what would you tell them?

If you’re lawyer for child, it’s a necessity as part of our practice that we need to have supervision and we need to provide evidence or a statement to that effect when we are reviewed. Even if you’re not a lawyer for child it’s really beneficial to have someone who is not a lawyer who you can bounce ideas off and talk things through.

As lawyers we think in a particular way and to have a health professional or someone who can do the professional supervision you gain a new perspective.

Is there anything else you wanted to add?

The other benefit about having individual as well as group sessions, although I don’t think you can do just group sessions, is not just sharing of information and the preventative aspect of that, it saves costs and increases collegiality.

Marta Black, Associate Willis Legal, Napier

What experience have you had with supervision?

I had professional group supervision when I worked for the Ministry of Justice. I currently have individual supervision in my present role.

How many in the group?

There were four or five of us.

What influenced the decision to have individual supervision?

I derived a lot of benefits from the group supervision. Broadly, I think supervision helps growth as a professional. In our roles, there are limited spaces where we can unpack our work and discuss it in dedicated time. In addition, I am acutely aware of longevity in the profession. I think supervision is helpful to support practitioners long term.

What benefits have you seen for yourself having supervision?

The key benefits I’ve derived are reducing stress and gaining an awareness of the risks associated with my work. Regular

supervision has given me a range of tools, including those related to stress management and the supervision of junior practitioners.

What would you look for in choosing a supervisor?

I look for someone who has experience dealing with professionals specifically, and then I look for someone who is the right fit.

If you were speaking to someone unsure about supervision, what would you tell them?

It is much better to have help and tools before you need them. In our roles, you never know when a challenging matter will come across your desk. It is useful to engage with someone and gain tools before you really need them. I would also say you never really know the depth of the benefit you might get from supervision until you’ve given it a go.

Stephen Thompson, Counsellor and Mediator, Dunedin

Can you explain your role?

My role is very much a facilitator in the group supervision frame. The invitation was sent out to as many practitioners as were interested and we met and discussed what they were getting themselves in for. The vast majority were only there because it was a requirement of the NZLS that they had supervision. We established that my role was to facilitate the group and make sure that the ground rules we set were adhered to and there was no overtly dangerous conversation being had or confidentiality being broken being in a small city and any follow up if topics needed clarification. I kept a running record, some supervisory notes, what was happening and what was discussed.

I am a counsellor and mediator.

I do FDR mediation, ACC counselling, Family Court counselling and general counselling.

What is supervision and what does it entail?”

Structured sessions, normally we seek any interest in any particular issue they want to discuss, that is then put onto an agenda. If there is nothing on the agenda, we choose a topic of interest and discuss them, it might be family court practice or merging areas of interest, supervision of contact, parenting courses availability of, all sorts of things. Usually trying to use the experience in the group, reflection for older practitioners on days gone by and what they’ve tried and what works in their view and a lot of discussion with the younger ones as to what should be tried now. Parenting hasn’t changed greatly in the past hundred years but certainly the world has changed around parenting. There is always discussion around whether you need to make any judgment about working as a lawyer or whether it’s your job to represent them legally to say what the law says and what their rights are and discussing the balance of that vs the responsibilities of parenting and being an ethical lawyer.

What are some of the benefits of having supervision?

You get to reflect on your practice. If your practice is good, then that reflection is rewarding of that then that’s a benefit. It’s

Support for family lawyers

Introduction

Family law is a rewarding area of law to work in, however, it can also be demanding and challenging. At times, family lawyers will need support to assist with issues that may arise in the course of carrying out professional duties or a personal issue they may be facing.

One of the benefits of being an FLS member is the range of support available to assist you when these issues arise. The FLS is very fortunate to have many generous members who have volunteered for roles specifically designed to offer support to FLS members when required. The various supports on offer are detailed out below.

FLS Friends Panel

Sometimes it helps to discuss difficult issues of a case or practice generally with a senior practitioner to gain advice and support if needed. The FLS Friends Panel (FLS friends) is comprised of around 60 senior family lawyers who, on a volunteer basis, are willing to be contacted by FLS members with questions or concerns relating to practice and/or personal issues. FLS friends provide family lawyers with a source of support directly from their colleagues. This support is best provided by a fellow practitioner who has the seniority and expertise to offer practical advice and emotional support. FLS members may have:

• a problem which they need to talk over with a willing listener on a confidential basis;

• the need to discuss a matter for an impartial viewpoint;

• an ethical issue they would like guidance on; and

• a personal issue to discuss with a willing listener.

Support is not necessarily confined to legal, professional or ethic matters but may encompass personal, family and/

or career issues that affect practice. FLS friends engage in a personal capacity, provide a listening ear, and draw on their professional or personal experiences to inform any guidance they may offer. A list of FLS friends is available at NZLS | Friends Panel.

FLS Immediate issues Response Team

The FLS Immediate issues Response Team are available to assist and support members affected by trauma or pressure as a result of carrying out their professional duties. At times, sad and tragic events can occur where family lawyers need additional support and advice. An example would be where a lawyer’s client has committed suicide, or some other tragic event may have occurred. The FLS members on this team are able and willing to support

members who may find themselves in similar traumatic situations. Many of them have experienced difficult situations over their years of practice so are able to offer practical advice when required. Members should feel free to telephone or email FLS manager Kath Moran in confidence on 021 605 932 or kath.moran@lawsociety.org.nz Help is only a phone call or email away should you need it.

FLS ‘our stories’

This is an FLS initiative where family lawyers are willing to share their personal experiences of trying to deal with a variety of complex and difficult situations in their practice. These situations may include where a client has been murdered, where lawyers are the target of ongoing and personal harassment, dealing with a difficult self-represented

When a lawyer can cease to act and rule 88 applications

Rule 4.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC) places a mandatory duty on a lawyer to complete a retainer unless an exception applies. Rule 4.2 and 4.2.1 are set out below:

Duty to complete retainer

4.2.A lawyer who has been retained by a client must complete the regulated services required by the client under the retainer unless–

(a) the lawyer is discharged from the engagement by the client; or

(b) the lawyer and the client have agreed that the lawyer is no longer to act for the client; or

(c) the lawyer terminates the retainer for good cause and after giving reasonable notice to the client specifying the grounds for termination.

4.2.1 Good cause includes–

(a) instructions that require the lawyer to breach any professional obligation:

(b) the inability or failure of the client to pay a fee on the agreed basis or, in the absence of an agreed basis, a reasonable fee at the appropriate time:

(c) the client misleading or deceiving the lawyer in a material respect:

(d) the client failing to provide instructions to the lawyer in a sufficiently timely way:

(e) except in litigation matters, the adoption by the client against the advice of the lawyer of a course of action that the lawyer believes is highly imprudent and may be inconsistent with the lawyer’s fundamental obligations.

(f) conduct by the client directed towards the lawyer or a person associated with the law practice

that amounts to 1 or more of the following:

(vii) bullying:

(viii) discrimination:

(ix) harassment:

(x) racial harassment:

(xi) sexual harassment:

(xii) threatening behaviour: (xiii) violence.

On occasion, lawyers may apply to the Family Court under rule 88(1)(c) of the Family Court Rules 2002 (rules) for an order/declaration that they no longer act for a party to proceedings. Recently, concerns have been raised about the misapplication of rule 88, including that:

• applications are made and granted on less than adequate grounds;

• applications are not served on respondents before orders are made; and

• applications and affidavits are served on other parties as well as (or instead of) the client concerned, despite the client being the only appropriate respondent in a rule 88 application, which may lead to inadvertently disclosing confidential information to other parties.

It has also been suggested that lawyer to assist be appointed where a person is legally unrepresented.

Rule

4.2.1(f) – bullying, discrimination, harassment, and violence by the client

Rule 4.2.1(f) is a more recent addition to r 4.2.1. It means that behaviour such as bullying, discrimination, harassment (including racial or sexual harassment), threatening behaviour and violence by a client amount to good cause. This is a welcome new rule.

The rule also allows for the lawyer to withdraw if this behaviour is directed by

the client to “a person associated with the law practice”. Under r 4.2.5 this includes a barrister instructed by the law practice or a person engaged or employed by the law practice.

From a wellbeing perspective, this is very reassuring as often a client might be polite to a senior lawyer but abusive to a junior lawyer or an assistant. It is important to remember that the duty of confidentiality still remains, so applications made on the grounds of r 4.2.1 need to be carefully worded. It is also important to avoid harming the client’s case if possible. Many such applications simply say that there has been a breakdown in the relationship and then there is a more detailed file note. If the r 88 application is opposed, it may be necessary to disclose further information at that stage.

Process concerns – who gets served

Rule 88(2) specifies that the application must be served on the party for whom the lawyer acts. As this is an interlocutory application brought within broader substantive proceedings, the other parties to the substantive proceedings must also be served (rule 219).

What is less clear on reading rule 88 in isolation, is whether all parties to the substantive proceedings must be served with the application and affidavit filed in support. The answer appears to lie within rule 219 which requires that all on notice applications are served upon parties

interested in, or likely to be affected by the application.

There are at time, potential ramifications for people/parties beyond just the person whose lawyer seeks to no longer act in certain proceedings. Where, for example, there have been allegations of family violence in proceedings, and an alleged violent party becomes unrepresented, this may mean that lawyer to assist is appointed to put questions to the other party (section 95(5) of the Evidence Act 1990). It is therefore not possible to always assume that a rule 88 application does not affect other parties/ persons in respect of service, i.e. those “interested in” or “likely to be affected by” the application.

Disclosing confidential information

The concerns raised about disclosing confidential information to the other parties is difficult to comment on in the absence of specific examples. Given that lawyers who are applying for a rule 88 declaration will be aware that the application and accompanying affidavit will have to be served on all parties, it is for that lawyer to assess what information is placed in the affidavit or not. It is undoubtedly clear that once an order is made it must be served on every other party to the proceeding. The wording contained in rule 88(4)(a) is almost identical to the wording in rule 87 (which covers change of address for service) – “a party must file and serve on every other party to the proceedings…”.

Without notice applications

Rule 88 applications may be made without notice. This is especially so when a lawyer has not heard from a client for some period of time and has been unable to contact them at all and has advised that if they do not hear from them within a set timeframe, a rule 88 application will be made.

Opposing a rule 88 application

Potentially, another party may wish to oppose the rule 88 application or may have contact details to enable the lawyer to continue to act, in which case the grounds of the application would not be established.

Notice of when the matter will be determined needs to be advised to the parties in the substantive proceedings, given that rule 229(3) directs that the application must be served no later than the fourth working day before the date fixed for the hearing.

If an opposition is filed, it requires affidavit evidence in support. Once the matter is opposed, it becomes a defended interlocutory matter.

As the matter is an interlocutory one, there is no “track allocation” required in terms of Part 5A of the rules in the event that the matter is a COCA one and is not a substantive section 48, 56 or 46R parenting or guardianship matter. Therefore, whatever Act the matter is under, a defended rule 88 matter will need to be allocated a hearing. This may or may not include conferencing prior to that.

As the applicant for the rule 88 application is the lawyer, then as that person is

required to file an affidavit in support of the application, they may have to give evidence.

When the order/declaration takes effect

Any rule 88 order/declaration does not take effect until the lawyer has served a copy of that order/declaration on every party to the proceeding and filed an affidavit proving that service (rule 88(4)(a)). Until such time as the order is made and served, the lawyer must continue to act.

Applications are made or granted on less than adequate grounds

The process for applying for and the granting of a rule 88 order/declaration are clearly set out in rule 88, together with the grounds for “good cause” to terminate the retainer in rule 4.2 of the RCCC. It is up to the court to determine whether the grounds are made out and an order/declaration is or is not granted. In the event that a party disagrees with the court’s decision to grant an order/declaration, then that party may seek to appeal or judicially review the court’s decision.

Appointment of lawyer to assist

Section 9C of the Family Court Act 1980 codifies the role of a lawyer appointed to assist the court. Lawyer to assist cannot be appointed to represent a party due to the lack of legal representation as suggested above. They can only be appointed on the limited bases set out in section 9C(1):

• to provide independent legal advice to the court on any complex factual or legal issue requested by the court:

• offer an impartial perspective in relation to any issue arising in the proceedings:

• undertake tasks required by or under any other Act (such as, for example, pursuant to section 95 of the Evidence Act 2006). Aside from the fact there is no jurisdiction for the court to appoint lawyer to assist in these situations, if such an appointment was made, the lawyer would then not be lawyer to assist but have obligations under the Lawyers and Conveyancers Act 2006

The role of lawyer for child in family violence proceedings

BY KESIA DE n HA r D t

Arecent Family Court decision1 involved a case that all family lawyers acting for the child(ren) or parties in family violence and parenting/guardianship matters should be aware of.

It contains Her Honour Judge Parsons’ careful analysis of the topical issue as to the role of lawyer for child in family violence proceedings.

This issue has increasingly emerged where a lawyer for child is appointed in proceedings under the Care of Children Act 2004 (COCA)2 and those are consolidated with proceedings under the Family Violence Act 2018 (FVA).3 It is of course not uncommon for the same evidence to be filed and relied upon when orders are sought under both statutes – often an interim parenting order and a temporary protection order.

Whereas its predecessor, the Domestic Violence Act 1995, empowered the Court to appoint a lawyer to represent the child(ren) where proceedings had been brought under the Act on their behalf, 4 section 170(1)(e) of the FVA provides only that a lawyer for child may “be present” at an FVA hearing.5 However, once present at such a hearing, family court judges have to date held divergent views as to specifically what that lawyer may do.

More particularly, in this case, the inquiry was distilled down to being whether the role of lawyer for child in such cases is limited to “attend[ing] a hearing…and do[ing] no more than observ[ing]”6 or to ensure full representation of the child(ren) they represent in the COCA proceedings at the FVA hearing. Judge Parsons further posited another result: that the answer lay somewhere in between.7

Ultimately, following a submissions-only hearing for which Counsel to assist was appointed to advance the issue, Her Honour held that:

(a) Whilst such lawyers appear to hold no automatic right beyond presence at an FVA hearing to actively represent the child(ren), or undertake actions such as being heard, cross-examining witnesses, or making submissions on behalf of the child(ren), “ that is the starting point of the analysis, not the outcome”;8

(b) Section 170(1) does not expressly limit what the permitted persons listed therein may do within their roles beyond mere attendance;9 the wording of this provision does not mean that a lawyer for child must not or cannot undertake the above actions, but rather permits their presence at an FVA hearing “where they may seek the permission of the Court to undertake such actions”;10

(c) The presiding judge possesses a discretion to decide to what extent they may represent the child(ren), “depending on

the issues arising within each proceeding to be determined”;11

(d) “ [T]he Court may well be assisted in determining the need for a protection order from a child’s perspective if their… COCA lawyer armed with information and knowledge from COCA proceedings is able to advocate and cross-examine the parties on behalf of the child in the FVA proceedings. Such advocacy must be undertaken...within the limited scope of inquiry of a child’s need for protection as a child of the applicant’s family…but not as to their overall welfare and best interests.”12

In so doing, Judge Parsons identified four distinct scenarios in which a child may be involved in an FVA hearing – each of which could result in different representation outcomes.13 Her Honour then went on to consider the distinction between the role of a lawyer appointed for a child under section 166 of the FVA14 and a COCA lawyer for child present at an FVA hearing, the inapplicability of the codified role of lawyer

CONTINUED FROM PAGE 25

for child set out in the Family Court Act 1980,15 the Court’s obligation to assess a child’s situation discretely from that of an applicant parent when considering whether to make a protection order, 16 the permissive (rather than restrictive) language used in section 170(1) of the Act, and its principles, definitions and purpose17 (among other matters).

In light of this conclusion, Judge Parsons directed that the lawyer for child in this case was permitted to be present at the FVA hearing, whether scheduled at the same time as the COCA hearing or not, and that:

• It was for them to determine what they need to do to ensure that the Court’s assessment of the children’s need for protection (or not) within the FVA proceedings could be undertaken with full information before the Court from the child’s perspective;

• To provide the opportunity for that consideration to take place prior to the FVA hearing, they were invited to file a memorandum for consideration at the next conference scheduled setting out what actions they anticipated they needed to undertake (other than being present) so that directions could be made ahead of the hearing itself. ▪

1. The case’s citation [2025] NZFC 1609 but it has not yet been published with pseudonyms.

2. Pursuant to section 7.

3. Pursuant to rule 135, Family Court Rules 2002.

4. Under section 81(1)(b).

5. The High Court case of Hagley v Hagley [2023] NZHC 1950 – which clarified that there is no jurisdiction to a lawyer for child to be appointed under the FVA where they are neither applicant nor respondent but a child of the applicant – is noted.

6. As held in Lovell v Sudworth [2016] NZFC 4032 and echoed by Winslow-Burton v Poindexter [2016] NZFC 1953 when the issue was being considered under section 83 of the Domestic Violence Act 1995.

7. [5] and [6].

8. [27].

9. [28].

10. [29].

11. 30].

12. [46].

13. [7].

14. Where a child is a party to the proceedings.

15. At section 9B, where a lawyer for child is appointed to act for a child in COCA proceedings.

16. Under section 79 of the Act.

17. At sections 3, 4 and 11.

leg work out of your legal research and put it in the experienced hands of the Law Library’s research services team. From research to document delivery and more, contact the team today for the right results, right on time.

Auckland Community Law Centre: Expressions of interest

Legal aid and pro bono family lawyers

The Auckland Community Law Centre is seeking expressions of interest from experienced family lawyers in Auckland who are willing to take referrals for legal aid and/or pro bono cases. As the oldest Community Law Centre (CLC) in New Zealand, the Auckland CLC are committed to providing access to justice for those who need it most. Due to the overwhelming demand for services, particularly in family law, they are looking for dedicated practitioners who can assist with referred cases. Where appropriate, the CLC may be able to offer legal support from our qualified junior lawyers to assist with casework on a pro bono basis. If you are interested in talking to the CLC about how you could help meet the growing need for family law services in our community, please contact David Towle, General Manager at david@aclc.org. nz or phone on (021) 624 976 to express your interest or for more information. Thank you for your support in helping the CLC’s mission to make justice accessible to all. ▪

Expressions of interest

LEGAL AID AND PRO BONO FAMILY LAWYERS

We are seeking expressions of interest from experienced Family Lawyers in Auckland who are willing to take referrals from us for legal aid and/or pro bono cases.As t he oldest Community Law Centre in New Zealand, we are committed to providing access to justice for those who need it most. Due to the overwhelming demand for our services, particularly in Family Law, we are looking for dedicated practitioners who can assist with referred cases.

Where appropriate, we may be able to offer legal support from our qualified junior lawyers to assist with casework on a pro bono basis. If you are interested in talking to us about how you could help meet the growing need for family law services in our community, please contact us to express your interest or for more information

Thank you for your support in helping our mission to make justice accessible to all.

Bias

My parents were lawn bowlers, so they understood bias. Their bowls were deliberately designed to pull to one side. This is the nature of bias: I find it draws you aside, whispers in your ear, claims a sore leg and urges you to favour one limb, to lean, to veer, like this poem, limping towards its endpoint.

Lawn bowls is a game played on a level playing field. Law aims for the same but, on lawns, we expect bias, where, along the bevel of law, we shouldn’t. Maybe law is like pétanque where the players take a more upright stance than those who, (sorry, Mum and Dad), stoop to play lawn bowls. I bear no prejudice against pétanque.

John Adams

Gender Ratio of Counsel Appearing in the Higher Courts

BY EMILY S t A nn A r D

The December 2024 report Gender Ratio of Counsel Appearing in the Higher Courts1 published by Ngā Ahorangi Motuhake o te Ture – The New Zealand Bar Association makes for sobering reading. Prepared by Nura Taefi KC and Kelly Quinn KC, it analyses the gender of both lead and junior counsel appearing in the Court of Appeal and Supreme Court.

From 2012 to 2023, the percentage of women practitioners rose from 45% to 55%. In 2023, the percentage of women lead counsel in the Court of Appeal was 28%, largely unchanged from 2012.2 In the Court of Appeal, the number of women lead counsel ranged between 19% and 31%, and averaging 25% from 2012 to 2023. 3 The report notes that, when Crown Law is excluded, 22% of lead counsel are women in the Court of Appeal, while 16% of lead counsel are women in the Supreme Court.4

In slightly more encouraging news, the split of junior counsel in the higher courts is more even, with 48% of junior counsel in the Court of Appeal being women and 46% in the Supreme Court. This needs to be seen in the context of 55% of lawyers being women.5 Other interesting statistics included female KCs comprised 27% of KCs appearing in the Court of Appeal between 2012 and 2023 and 21% of KCs in the Supreme Court in the same time period.6 Women were more likely to be appointed as counsel to assist, with 67% of these counsel being women in the Court of Appeal and 83% in the Supreme Court from 2012 to 2023.7 This category did involve a small sample size.

The report highlights that the number of women lead counsel in the senior courts is not increasing. It will be interesting to see how measures to increase participation of junior counsel will impact these statistics over time. The report is available here: https://nzbar.org.nz/assets/News/2025/NZBA-Gender-Ratio-ReportDecember-2024-Final.pdf ▪

1. Nura Taefi KC and Kelly Quinn KC, Gender Ratio of Counsel Appearing in the Higher Courts, Ngā Ahorangi Motuhake o te Ture – The New Zealand Bar Association, December 2024.

2. Above at n 1 at p. 3.

3.

BOOK r EVIEW

Greene Lyon

By Judge Alan Goodwin

REVIEWED

BY

MA rt HA WILSO n

The Greene Lyon is a fantasy retelling of Sir Isaac Newton’s life, and path to his scientific discoveries. Isaac is a gifted mathematician living in 15th-century England, where the church is supreme and the unknown was held to be God’s secrets, not to be known by man.

The novel is divided into several sections of Isaac’s life: his youth, his time as a student of Cambridge University, his return to his hometown during the plague, where he made his discovery of gravity, and finally, as an old man, where he is knighted and relays his life to a biographer.

The story of the falling apple is one Isaac told his biographer in reality, but Judge Goodwin asks what if this was not the truth? But a cover-up for what really lead him to his discovery.

At its heart, I felt this curious novel was in awe of Sir Isaac Newton’s

discoveries in gravity, motion, mathematics, light and more during perhaps the most repressive time in England’s history. Goodwin playfully speculates, as many people of the time may have, that it must have been magic.

The novel also explores its fair share of complex relationships, with Isaac coming from a fractured family and questioning his sexuality, which kept the family lawyer in me engaged.

Through his imagination of what happened between the historical facts, Judge Goodwin explores what it means to seek forbidden knowledge in a dark world, and ponders mathematics, light, motion and time in an accessible way. I especially enjoyed that this novel prokoked thought about the world around me from a fresh perspective, without the benefit of scientific knowledge we take for granted to explain the world around us. ▪

Congratulations to Surendra Bennett for becoming a partner in the Family Law Team from 1 May 2025.

BOOK r EVIEW

Rising from the chrysalis

A review of Half Way to Every Where

by Judge Vivienne Ullrich KC

REVIEWED BY JOH n ADAMS

Poetry has claimed former Judge Vivienne Ullrich KC. Her second collection, Half Way to Every Where (The Cuba Press, 2024, $25) performs an assured range of forms. We are introduced to unfamiliar aspects of the familiar, beautiful compositions and shrewd insights. I relished reading it.

Although many readers will enjoy it, this is an ideal purchase for the lawyer who needs something to occupy the mind and heart while waiting for their case to be called. Economical, too, because these poems reward re-reading. Beyond their variety and novelty, they offer surprising insights into the imaginations of (at least some) judges whom we might otherwise encounter only during their mundane confinements within the black robe. Emerging from that chrysalis, like Vivienne Ullrich, their butterfly can soar.

Some of these poems roll over the old rocks of fairy stories to examine the scuttle of alternative versions underneath. Goldilocks: “This hussy was one brassy tart/who took what she wanted”; or Jack (the bean stalker): “Fee, fi, fo, fum” – we don’t need to be reminded what nationality his blood smells of, he is the colonial plunderer; or Little Red Riding Hood and the transvestite wolf: “And the funny/ lady with the big hands painted/ my nails and shouted, ‘My sainted/ aunt,’ when my dad arrived, cos he/ had a red face and got angry.” After the case is

over, the lawyer, re-reading this in the café along from the court, can enjoy the cleverness of hiding, in the run of words, the (now, in the cafe, obvious) rhyme of “painted” and “sainted”, and the subtlety of the subsequent rhyme of “cos he” with “angry.” Nice.

Poetry is more than entertainingly arranged ideas (although there are heaps of those, here). Attention to rhythm, line breaks and sounds offer pleasures too. The giant’s wife, whose husband never returned from pursuing Jack, mourns him: “He had chased his/ golden songs,

his/ melodies of love, his/ hymns to falling water, his/ heart’s ease.” The sobbing catch at the end of each line; the run of four perfect rhymes “his/ his/ his/ his” and the turn of vowel and length that trade “his” for “heart’s ease”: signal an assured poetic voice. Several poems explore feminine concerns, for example the implied male order that glowers behind the “Mail-order bride” who fingers her bruises; or the reimagined frog prince who turns out not worth keeping: “She hit him with an axe./ Hard.” This sometimes-hard-hitting collection also contains deft poems of personal reflection or moving experience. The poetic space is always that of close observation, both interested and disinterested, intimate while remote. At the end of “A month of days,” the poet states: “Know that my savage heart does not allow surrender/ After all, I am already halfway to everywhere.”

Flavours of Family Court experiences surface, as we might imagine. The poem “I never promised you a rose garden” shrouds relationship disappointments in legal cloth. For example: The balance of probabilities is not an equilibrium./ It teeters on a point of argument,/ see-saws back and forth on disputed facts./ One way or other, it’s meant to tip.” There’s a depth of insight in material like this. As a judge, Vivienne Ullrich was known for the clarity of her writing. As a poet, she offers all that, and much more. ▪

The Conversion Practices Prohibition Legislation Act 2022

Where does the Family Court fit in?

BY PE t E r MCKE n ZIE C n ZM KC

The views in this article are those of the author not necessarily of the FLS.

The Conversion Practices Prohibition Legislation Act 2022, (Conversion Practices Act), although it moved rapidly through the House of Representatives with scarcely any dissent, was none the less one of the most controversial pieces of legislation in our recent history. It attracted a large number of submissions, the highest number in New Zealand’s legislative history.

When the Bill was introduced into the House of Representatives, it was the subject of spirited debate. The Bill was immediately challenged by Hon Simon Bridges, National, Tauranga, who called for an amendment to exempt parents from the application of the new law, as otherwise “good parenting would be compromised”. To illustrate his concern Mr Bridges referred to an English High Court decision , Keira Bell v Tavistock, which is discussed later in this article. Hon Louise Upston, National, Taupō, then supported this view and said that although National supported the intent of the Bill, she was opposed to the exposure of parents to prosecution, and was concerned that a child or young person under the age of 18 years could seek to act in complete isolation of their family, and parents who reacted to this situation were concerned as to what they might do without facing the risk of prosecution. “We are talking here about medical procedures. Are you seriously saying as a parent, when a young person under the age of 18 is considering a medical procedure, that as a parent, you as a parent, shouldn’t engage support, provide advice, get external advice? Obviously not…”.

In the course of this debate no one seems to have given thought to whether the Family Court might not have jurisdiction to

hear and deal with the concerns of parents and guardians regarding possible medical treatment for their child or young person. It is the purpose of this article to show that the provisions of the Family legislation stand alongside the Conversion Practices Act and are not excluded by that Act, notwithstanding that the Act intersects into what could be expected to plainly be the Family Court’s area of expertise and jurisdiction, the welfare of the child or young person. 1 The Act’s focus is on the human rights of LGBTQ+ persons and it is not without significance that the Act in s 13 states that complaints under the Act are to be made under the Human Rights Act 1993.

The impact of s 8 of the Conversion Practices Act

Section 8 of the Act creates an offence of performing a conversion practice on persons under the age of 18 years or persons lacking decision-making capacity. Section 8(b) refers expressly to “a person who lacks the capacity to understand the nature, and to foresee the consequences of, decisions relating to their health and welfare”. These words replicate words in s 6(1) of the Protection of Personal and Property Rights Act 1988 and envisage any persons (including persons over the age of 18 years) for whom the Family Court has jurisdiction under that Act to make a Protection Order in relation to health and welfare.

Section 8(1)(a) which concerns children and young persons under the age of 18 years, and s 8(1)(b) which concerns persons who lack capacity to make decision on their health and welfare, intersect with the detailed provisions on the welfare of the child and young person in the Care of

Children Act 2004, and with the provisions of the PPPR Act in relation to persons under s 8(1)(b).

The Care of Children Act in s 3 sets out the purpose of the Act which in subsection (1) states that the purpose of this Act is to –(a) promote children’s welfare and best interest, and facilitates their development by helping to ensure that appropriate arrangements are in place for their guardianship and care; and (b) recognises certain rights of children.”

The next section, s 4, under the heading “Child’s welfare and best interests to be paramount” states in subsection (1):

“The welfare and interests of the child in his or her particular circumstances must be the first and paramount consideration(a) in the administration and application of this Act, for example in proceedings under this Act; and (b) in any other proceedings involving the guardianship of, or the role of providing day to day care for or contact with a child.” (emphasis added).

“Guardianship” is defined very broadly in s 15 in terms that clearly cover matters affecting the child or young person under the provision of the Conversion Practices Act. A “child” is defined in s 3 as meaning a person under the age of 18 years.

Detailed provisions follow including a statement of Principles relating to a child’s welfare and best interests in s 5. In this respect the provisions of paragraph (b) of this section are significant. The Principle stated in this paragraph is that:

“(b) a child’s care, development and upbringing should be primarily the responsibility of his or her parents or guardians”

Significant provisions follow to promote the welfare of the child. These include detailed provisions on guardianship

including the role of parents, court appointed guardians, consent to medical procedures (s 36), resolution of family disputes and provision of counselling, appointment of a lawyer to assist the court (including a lawyer for the child (ss 7 and 130).

The court which has jurisdiction under the Care of Children Act is the Family Court. Section 125 is directive. Subsection (1) states “Proceedings under this Act must be heard and determined in the Family Court unless – (a) the proceedings are criminal proceedings in which case the Family Court does not have jurisdiction in respect of them; or (b) under (certain stated provisions) of the Act.

The Family Court has comparable jurisdiction under the Protection of Personal and Property Rights Act 1988 (the PPPR Act) in relation to persons who lack wholly or partly, capacity to understand the nature and foresee the consequences of decisions in relation to their health and welfare. Under s 12 the Court may appoint a Welfare Guardian. The powers of Welfare Guardians are set out in s 18 and include in s 18(1)(c) power to refuse to consent to the administering to a person of any standard medical treatment or procedure intended to save that person’s life or to prevent serious damage to that person’s health, in sub para(d) power to consent to the administering to any person of electro-convulsive treatment, or in para (e) power to consent to the performance on that person of any surgery or other

treatment designed to destroy any part of the brain or any brain function for the purpose of changing that person’s behaviour. A safeguard on the integrity of the person is provided by subsection (3) which provides that in exercising those powers the first and paramount consideration of the welfare guardian shall be the promotion of the welfare and best interests of the person for whom the welfare guardian is acting, while seeking at all times to encourage that person to develop and exercise such capacity as that person has to understand the nature and consequences of decisions relating to the personal care and welfare of that person, and to communicate such decisions. In some respects, these provisions anticipate the more damaging forms of conversion therapy, as well as making provision for the court to deal with areas of contention over medical treatment which can cover the administration of therapies designed to advance gender change.

When regard is had to the detailed regime, and the way in which the law and Parliament over the last 50 years has recognised the special jurisdiction of the Family Court and its expertise in matters affecting the welfare of the child, it is surprising that such a heated set of exchanges could take place in Parliament without any apparent recognition that family law in New Zealand already provides an appropriate and expert forum for dealing with concerns relating to the welfare of the child and younger person and the role of parents and guardians.

What is the present position under the Conversion Practices Act as it stands?

What then is the present position in relation to the application of the Care of Children Act 2004 and the PPPR Act and the jurisdiction of the Family Court if there are parental or welfare concerns under the Conversion Practices Act?

It is my view that the Conversion Practices Act must be read together with the Family statutes as providing supplementary provisions for determining matters affecting the welfare of children, or persons coming under the PPPR Act, and on the other hand the provisions of the Conversion Practices Act, that penalise conduct that amounts to a conversion practice and is penalised by the new offences under the Conversion Practices Act. There is no necessary inconsistency between the Conversion Practices Act, which prohibits conversion practices and creates offences in relation to persons who breach its provisions, and the provisions of the Family legislation protecting the rights of and promoting the welfare of the child and family and the rights of parents and guardians of the child or young person, or persons coming under the PPPR Act. The two sets of statutes can be read side by side, in the same way as the provisions of the so-called anti-smacking law (s 59, as amended in 2007 of the Crimes Act 1961).

The Family legislation provides express processes for application to be made to the Family Court to determine matters affecting the welfare of the child, or which may affect parental rights in so far as the guardianship of the child is concerned, including medical treatment for the child (s1(2)(c) or the person in need of protection under the PPPR Act which are interfered

was initially brought by the mother of a 15 year old who sought from an early age to transition to female. Some months later Quincy (or Keira) Bell, a young woman in her early 20’s, replaced the initial plaintiff and gave her name then to the proceeding. She had been prescribed puberty blockers at age 16 to assist in her transitioning to a male, but later in her 20’s regretted the transition, and joined the initial plaintiff in alleging that the hormone therapy was experimental and that there was robust medical evidence to show that there were long lasting medical detrimental effects from such therapy. It was reported at the time that lawyers were besieged with clients wishing to join the proceeding, and one lawyer claimed that “1,000 clients may join the gender identity clinic claim.5

The various clinics which had prescribed such treatment, and were defendants in this case, claimed that their practice had been to obtain consent in every case. The Divisional Court considered that the issue at the heart of the case was whether informed consent could be given by children and young persons to the kind of treatment prescribed in this case. Were children and young persons competent to give such consent to treatment of this kind? The Court spent time in its judgment considering the impact on the case of the House of Lords decision in Gillick v West Norfolk and Wisbech Health Authority.6 In that case a mother sought the Court’s intervention when her daughter was prescribed contraceptive tablets without the mother’s consent. The House of Lords determined that minors would be able to consent to treatment if, in the words of Lord Scarman, “they demonstrate sufficient understanding and intelligence to understand fully what is proposed”. The Court considered that parental authority diminishes over time as the child matures and acquires growing understanding and maturity. This is now called “Gillick competence”. The Divisional Court in Bell’s case rejected the application of the Gillick competence test on the facts of that case. The Judge relied on evidence given by a Professor of Cognitive Neuroscience who stated that

“given the risk of puberty blocking treatment, and the fact that these will have irreversible effects, that have life-long consequences, it is my view that even if the risks are well explained, that in the light of the scientific literature, that it is very possible for an adolescent to be unable to fully grasp the implications of puberty blocking treatment”.

The Court therefore declined to apply the Gillick test to any of the plaintiffs and instead provided “guidance” for the future in a series of propositions dealing with the differing situation of children and young persons at various stages of maturity. The effect of that guidance was to require that in virtually all cases the consent of the Court would be required before any child or young person could be given such hormone treatment.

The Divisional Court’s judgment provoked a strong reaction from the media and from clinics across Britain, and the case was appealed to the Court of Appeal. This Court allowed Tavistock’s appeal. The court took a narrow view of the basis on which the proceedings were brought before the Divisional Court and held that the Courts were not being asked to determine whether treatment for gender dysphoria is wise or unwise. Such policy decisions are for the National Health Service, the medical profession and its regulators and Government and Parliament. The Court of Appeal saw in the Gillick judgment an authority for holding that it was for doctors, not judges, to decide on the capacity of under 16’s to consent to medical treatment. Further, the Court of Appeal considered that disputed fact, expert evidence and medical opinion were not suitable for determination in judicial review proceedings and there were great dangers in a court grappling with issues which were divorced from the factual context that required their determination. “The court should not be used as a general advice centre”.

For those reasons the Court rejected the Divisional Court’ approach of setting guidelines for future determination by the courts and held bluntly that it was for clinicians and not the courts to decide

on competence to consent. The Court expressed disquiet at the quality of the evidence before the Divisional Court which it considered argumentative and adversarial. It would appear that the court had got caught in the wasteland of differences between the views of the judges in the two courts over morality and judicial propriety.

It is very doubtful, in my view, that the Family Court, if faced with questions such as those faced by the English courts, would arrive at the same stalemate. The family legislation In New Zealand is more comprehensive and directive than that in England. The New Zealand Care of Children Act 2004, for example has specific provisions conferring jurisdiction on the Family Court in relation to medical treatment and the child. Section 5 sets out broad “Principles relating to Child’s welfare and best interests” which provide broadly for the Family Court to determine matters relating to the child’s welfare and best interests. Section 16 which deals with the exercise of Guardianship states expressly in subsection (2)(c) that “important matters affecting the child” include medical treatment for the child (if that medical treatment is not routine in nature). Sections 36 deals expressly with consent to procedures generally and applies to the Court’s consent or refusal of consent to a donation of blood, or to any medical, surgical or dental treatment or procedure (including a blood transfusion) to be carried out on a child under the age of 16 years who is not married or in a civil union or living with a de facto partner and has no guardian. Where there is no guardian of an underage or unmarried child subsection (3) confers jurisdiction on a District Court Judge to give consent. Section 46 concerns more generally the case where consent is required under any enactment and confers jurisdiction to consent on a Family Court Judge. Under s 46C children (defined as being up to 18 years of age) may, if the child is over the age of 16 years, seek review by a Family Court Judge of a parent’s or guardian’s refusal to give consent “in an important matter”.

CONTINUED FROM PAGE 35

The Family Dispute Resolution Act 2013 confers wide jurisdiction on a Family Court judge to deal with applications to resolve a family dispute. There can be little doubt that in cases affecting gender transitioning, and any relevant treatment a Family Court judge would, in New Zealand, have jurisdiction to determine questions of consent to medical treatment or other matters in dispute. It is unlikely that the Family Court judge, although receiving and assessing relevant medical evidence, would take the approach taken by the Court of Appeal in England that it is for doctors and not judges to determine whether the child in question had the needed capacity to make the decisions in question.

Conclusion

There are therefore, in my view, good grounds for considering that the Conversion Practices Act does not oust the jurisdiction of the Family Court in relation to children and young people but must defer to the processes of the Family Law statutes and the fundamental statement in the Care of Children Act 2004, in relation to matters affecting the child or young person, that the welfare of the child or young person and their best interest is paramount. There are good grounds for considering that a parent or guardian is still able to apply to the Family Court for its determination, in any particular case, what is in the best interests and welfare of the child or young person and to restrain actions that are contrary to this. ▪

1. The Conversion Practices Prohibition Bill was introduced into the New Zealand Parliament on 30 July 2021, well after the date on which the High Court of England and Wales (Administrative Division) delivered a controversial judgment dated 1 December 2020, which aroused a great deal of publicity in the UK, and is discussed later in this article. That judgment was appealed to the Court of Appeal which reversed the High Court judgment in a number of respects and is also discussed later. That judgment is dated 17 September 2021. The New Zealand Act had its third reading and was passed on 15 February 2022, well after the date on which the UK Court of Appeal decision was delivered.

2. Burrows and Carter , Statutory Law in New Zealand , 5th ed. 453, citing Maxwell on the Interpretation of Statutes, 12th ed 1969, p193.

3. Kutnerv Phillips [1891] 2 QB267, 272.

4. The Bell v Tavistock and Portman NHS Foundation Trust [2020] (WLR (D) 655; [2020] EWHC 3274 (Admin 1 December 2020).

5. The Law Society Gazette, law.gazette.co.uk/news/firmpredicts-1,000-client-.last consulted 3/11/2022.

6. [1986] AC 112, HL.

Children of incarcerated parents

The unintended victims of sentencing

BY WILL S t O r Y

When a parent is sent to prison, a child’s world is turned upside down. The punitive measures of our criminal justice system have historically had little regard for this.

Recently the Heads of Bench approved an operational change which aims to provide District Court Judges presiding over criminal cases with more information and greater visibility around dependent children. This operational change has its genesis in Dame Karen Poutasi’s report on the Joint Review into the Children’s Sector following the widely publicised death of Malachi Subecz in which a critical gap in New Zealand’s system was spotlighted.

In contemplating this operational change, a laudable development in Court processes, it occurred to me just how little may be known about the relevance and effectiveness of the Family Dispute Resolution (FDR) service in cases where a caregiver may be incarcerated. While Oranga Tamariki are often naturally involved in many of these cases, for Counsel involved in criminal Court proceedings it is useful to bear in mind FDR as an important tool in the armory that could be taken greater advantage of.

The role

Three common scenarios in which we see FDR play a critical role include:

(c) Working out alternative care arrangements for tamariki when a parent is sentenced to imprisonment.

(d) Working out a plan for the incarcerated parent or caregiver to maintain safe and regular contact with their tamariki throughout the period of imprisonment.

(e) Working out arrangements for a parent coming out of prison to re-commence contact with and/or care of their tamariki (often involving a transition or staged plan).

At Fair Way, we have established relationships with the prisons and a robust process for engaging with parties where one may be incarcerated. When it comes to engaging with an incarcerated party, we will work with Corrections, custodial staff and designated Probation Officers to arrange FDR. There are a number of critical safety factors that must be known, considered and safely managed in order to provide mediation. Our practitioners have knowledge of all aspects of the relevant legislation and processes. It is imperative, for example, to be mindful of parole and release conditions such as

Westlaw Case notes

Full copies of judgments summarised in this service are available through Westlaw NZ. These cases may contain publication restrictions. Any report of these proceedings must comply with ss 11B to 11D Family Court Act 1980.

FAMILY VIOLE n CE

G v New Zealand Law Society

G v New Zealand Law Society [2025]

NZHC 101, High Court, Whangarei, O’Gorman J, 10/2/2025

Family law – Family violence

Professions and trades – Legal and related professions – Lawyers – Qualifications and admission

Unsuccessful application by G for determination of whether he is a fit and proper person to be admitted as a barrister and solicitor; G completed necessary academic and professional qualifications for admission but New Zealand Law Society (NZLS) refused to give him certificate of character (certificate); NZLS refused certificate on findings of Family Court (FC) regarding incidents of family violence, aspects of conduct in application process and insubstantial nature of character references; FC found in 2023 that G physically and psychologically abused his wife over an extended period; protection order was made against G and he was directed to, and attended, non-violence programme; NZLS asserted G’s tendency, when he believes he has been wrongly challenged, to disproportionate and misguided aggression; G complained or took action against his wife’s lawyer, his own lawyer and the lawyer for his children, amongst others; character references did not dispel concerns about G’s other behaviour; G submitted he was fit and proper person who complied with all binding Family Court orders and that

his complaints were for proper purpose of pursuing justice.

Held, G not a fit and proper person to be admitted as barrister and solicitor; accepted that G had defect in character whereby he retaliates disproportionately when he perceives he is wrongly challenged; G inappropriately used legal processes in retaliation and showed tendency to blame others; referee evidence did not overcome concerns; criminality not sole determinant of fitness to practice and depends on facts of case; G’s character defects go beyond the findings of non-criminal findings in FC; test is forward looking however G’s defects in character continue to manifest in his conduct of these proceedings and complaints in FC; acknowledged good aspects of G’s conduct and characteristics but still falls short of high standard required; application declined.

G S v L M

S v S [2025] NZHC 102, High Court, Auckland, Wilkinson-Smith J, 10/2/2025

Family law – Civil procedure – Appeals

Family law – Family violence – Protection order – Variation

Statutory interpretation – Role of Court –Inconsistency

Unsuccessful appeal by GS against removal of firearms licence after final protection order made; GS and LM were in relationship and had one child before separating acrimoniously; LM granted temporary protection order in October 2018 then discharged in August 2019; LM granted further temporary protection order

October 2019 when GS resorted to abuse and threats towards LM and their son; GS’ abuse was described as psychological coupled with failure to appreciate impact of his actions; final protection order made against GS December 2020 and firearms licence revoked as standard condition in accordance with ss 98 and 99 of the Family Violence Act 2018 (FVA); s 22H of the Arms Act 1983 (AA) came into force at end of December 2020 disqualifying person from holding firearms licence for ten years after final protection order granted against them; GS would be unable to apply for firearms licence until December 2030; GS designed and manufactured specialist firearms and claimed removal of his firearms licence was significant to his ability to earn a living; GS appealed granting of final protection order to High Court (HC) claiming the Judge should have removed standard firearms condition; HC found Judge had been correct to make final protection order; found GS provided insufficient evidence to Judge regarding the appropriateness of removing standard firearms condition; GS sought leave to bring second appeal to Court of Appeal (CA), application declined; GS application to recall CA judgment also failed; GS applied unsuccessfully to vary standard firearms condition in Family Court (FC); GS appealed FC decision; LM opposed variation submitting it was moot as GS was automatically disqualified from holding firearms licence; LM was fearful and had real and reasonable fear that the violence would escalate; GS submitted standard firearms conditions not necessary as psychological abuse was form of emails and texts, no threats to physical or

UPCOMING CLE EVENTS

DRAFTING WILLS – S 55 PPPR ACT APPLICATIONS 2025

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