KD v MX
| Jurisdiction | New Zealand |
| Judgment Date | 19 February 2021 |
| Neutral Citation | [2021] NZLCRO 20 |
| Date | 19 February 2021 |
| Docket Number | Ref: LCRO 43/2019 |
| Court | Legal Complaints Review Officer |
CONCERNING an application for Review pursuant to section 193 of the Lawyers and Conveyancers Act 2006
AND
CONCERNING a determination of [Area] Standards Committee [X]
[2021] NZLCRO 20
Ref: LCRO 43/2019
LEGAL COMPLAINTS REVIEW OFFICER
ĀPIHA AROTAKE AMUAMU Ā-TURE
Law Practitioners — application for review of a decision of an Area Standards Committee to take no further action on his complaints about the respondent — the respondent acted for the applicant's former partner in a child care dispute — the respondent had emailed the children's schools seeking their co-operation in ensuring that the plaintiff not remove the child from school in breach of his guardianship rights — the Standards Committee considered that the respondent had engaged in actions that could amount to unsatisfactory conduct but that no meaningful purpose would be achieved by making an adverse finding — improper use of a legal process — whether a lawyer should refuse a client's unlawful request — Lawyers and Conveyancers Act 2006 — Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008
In accordance with s 213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:
Mr KD as the Applicant
Mrs MX as the Respondent
Mr FR as the Representative for the Respondent
[Area] Standards Committee [X]
New Zealand Law Society
The names and identifying details of the parties in this decision have been changed.
Mr KD has applied for a Review of the determination by [Area] Standards Committee [X] to take no further action on his complaints about Mrs MX.
Mr KD and Ms QY were the parents of two young children and lived together in [country].
In about July/August 2017, Ms QY left the relationship and travelled to New Zealand with the children. They lived with Ms QY's parents in [city 1].
The older child was enrolled at [School 1] — the younger child was enrolled at a pre-school in [suburb].
Mr KD and Ms QY commenced litigation in the Family Court relating to their relationship and children, much of which was unresolved at the time the events giving rise to Mr KD's complaints, occurred.
On 2 July 2018, Mr KD sent emails to the children's schools. Both emails were, in the main, identical. Set out below are portions of those emails:
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• The reason I am writing this email to you is that I would like to re-establish my involvement in ……. education at your school. I have attempted to do this through his mother but unfortunately, she has not been supportive or encouraging of my relationship with ………
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• … as his birth father, I am ………'s natural guardian and share parental care and responsibility for him together with his mother. … there are no Parenting orders or Protection Orders in place that varies my guardianship of ………, …
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• I would like you to keep me updated on ………'s education at your school, this includes but is not limited to the following:
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• Include me in the parental emailing lists
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• Include me as an emergency contact/Next of Kin
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• Email me details of school events, newsletters, field trips, progress reports, etc.
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• Notify me of significant occurrences e.g. if he hurts [him]self, adjustment issues, etc.
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• Parent volunteer opportunities.
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• Any other matters a parent should know of his/her child's time at your school.
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• I would also like to periodically contact you or his teacher to have a chat about his progress and time at your school. If I were in [city 1] I will be doing this in person but this will be done via telephone or email in most instances.
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• … all I want is to be kept informed of his time at your school and be involved again.
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• I only want what is best for ……… and this includes having his father play a big part in his upbringing and development.
On the following day (3 July 2018), Mrs MX sent emails to the schools, and it is the contents of this correspondence which give rise to Mr KD's complaints.
After introducing herself as the lawyer acting for Ms QY, Mrs MX said: 1
1. The Father had applied for the return of the children to [country] under the Hague Convention. My client Mother opposed the application on the basis that the Father consented to the children remaining in New Zealand. …
2. That evidence was put before the Court. However the Court had a narrow legal issue to determine and did indeed order the return of the children. However what is important for your purposes is that the Court decision on the Hague Convention proceedings is currently being appealed to the [city 1] High Court. … A copy of the Notice of Appeal is enclosed for your information.
…
4. Counsel in the High Court matter have been in negotiations about the matter and agreed to certain Orders (which for confidential reasons cannot be given to you). However on the basis of those consent orders, the matter has been allocated a Hearing date in the [city 1] High Court on 17 October 2018, a copy of which is also enclosed.
…
6. Also in terms of the consent orders as agreed between the lawyers, a Lawyer is being appointed to represent the children, who no doubt will be in touch with your school in due course.
7. Please note my client has produced medical evidence to the Court in support of her allegations of physical violence against one of the children and is therefore opposed to contact pending further order of Court.
…
9. In my view the father is being psychologically abusive because of the mind games he is playing with my client and the children.
10. I am therefore concerned about the Father's intentions and the pressure he is placing on the children. The children have been upset because he turned up at my client's door this past weekend (despite being asked to stay away). He would not leave, leaving my client no option but to call the Police. The Father has been served with a Trespass Notice. A Protection Order application against the Father is being commenced. The child is traumatised and hence has not been at school.
11. Please note that there are no Parenting Orders in place mainly because of various discussions between the lawyers at this stage.
12. Whilst I understand the Father has his guardianship rights, the child's safety is of primary concern. My client has produced medical evidence in support of her allegations of physical violence by the Father against the child ………, which is to be used in a Protection Order application. There are also serious criminal investigations underway against the Father, by the police in [country]. The NZ police are aware of this.
13. I accordingly seek your co-operation in ensuring that the Father does not remove the child from school.
14. I also seek that any communication with the child's Mother, my client, is kept strictly in confidence and not to be disclosed to KD.
The emails to the schools were identical, save for the email to [School1] which commenced: 2
I am a local Family Court lawyer. By way of bona fides please note that I have a long history of association with your school.
I now represent Ms QY, the Mother of the abovenamed child, ………, who is currently enrolled at your school.
At the time of making his complaints, Mr KD did not have copies of Mrs MX's emails. However, it is apparent that he became aware of the content of the emails in some detail. He was also in possession of subsequent correspondence between the schools and Mrs MX.
In his complaint to the Lawyers Complaints Service, Mr KD said: 3
13. I am not privy to the mentioned attachment sent by Ms MX to the schools.
14. Ms MX is aware of my role as their legal guardian and my entitlements.
15. As an officer of the court, Ms MX, has an obligation to promote justice and effective operation of the judicial system.
16. In my opinion, she has used her authority as an officer of the court to seek an outcome in a manner that is untoward.
17. In my opinion, this action by Ms MX is conduct that is misleading and unbecoming of an officer of the court.
…
19. … Mrs MX under instructions from my wife, has subsequently made application for an interim Parenting Order and a Protection Order …
20. These applications were made without notice to me however the court has declined to make any orders and I have been put on notice.
…
22. These emails sent to my children's school has damaged my reputation.
The outcomes requested by Mr KD were:
23. … that the New Zealand Law Society investigate the actions of Ms MX in relation to her conduct with my children's schools.
24. If Ms MX is found to be guilty of misleading and/or unbecoming conduct, I request that disciplinary action be taken against her.
25. I also request that a formal apology be made to me and the schools involved.
Mrs MX rejected the allegation that she had acted inappropriately by emailing the schools. She says that she always acted on her client's instructions, who had the “current day-to-day care of the children”.
In her response to the complaint Mrs MX said:
8. … the very nature of the serious investigations against Mr KD is what led the family to leave [country] urgently …. They did so with the express consent and assistance of Mr KD.
9. There was a domestic violence incident in about November 2017…. My client feared for the safety of herself and her children and did not wish to return to [country].
…
13. It was only when Mr KD perceived Ms QY to be hindering his contact with the children (which is denied by Ms QY), that he changed his mind and sought to insist upon the children returning to [country] ….
…
20. Therefore Ms QY's position and concerns at the relevant time, had to be conveyed to the children's school.
…
24. An Order Preventing Removal was granted by Family Court Judge [Judge B] on 21/11/2017. … The father has the ability to remove the children and has expressed an intention...
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