district court logo

Chief Executive of Oranga Tamariki v DH [2019] NZFC 2884

Published 16 September 2021

Conflict of interest — complaint against lawyer for child — lawyers married — whether children's views were misrepresented — appointment of new lawyer for child — Lawyers and Conveyancers Act (Lawyers: Conduct Client Care) Rules 2008, r 5.4. Three children were the subject of proceedings initiated by Oranga Tamariki. The father of the children filed proceedings on the basis that there was a conflict of interest. The conflict of interest alleged related to the fact that the lawyer originally appointed to act for the children and the lawyer subsequently appointed, are husband and wife and the fact that the first lawyer had worked for Oranga Tamariki, who had commenced proceedings relating to the children. There was also reference to a complaint the father had raised in earlier proceedings, which was subsequently rescinded during a judicial conference. Counsel for the father sought a direction that the second (current) lawyer be relieved of his appointment as lawyer for the children. The lawyer submitted his only interest in the matter was promoting the welfare and best interests of the children and presenting their views to the Court. The father was not his client and he owed him no duties, his duties were owed to the children. He had not discussed the case with his wife and had explained his relationship to her to the children. There was no evidence either lawyer had acted inappropriately or against the interests of the children. There was no evidence the children's views had been inaccurately presented. The Judge found none of the complaints raised by the father against either lawyer were made out. The second lawyer, while rejecting all allegations of conflict or risk of conflict, considered that the father's perception of conflict was relevant to the case. he thought that the father's perception was so skewed that it impacted his ability to continue to work as lawyer for the children. Usually a perception of a party would not give rise to replacement of the lawyer acting for the children, the Judge decided that in the particular circumstances of the case it could create barrier to the second lawyer Judgment Date: 17 April 2019. * * * Note: names have been changed to comply with legal requirements. * * *