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Hines v Carter [2020] NZFC 11430

Published 16 June 2021

Jurisdiction to act — foreign solicitor — New Zealand practising certificate — right to representation — wrongful retention — District Court Act 2016, s 107 — Family Court Act 1980, s 16 — Lawyers and Conveyancers Act 2006, ss 6 & 25 — Care of Children Act 2004, ss 4, 5, 48 & 76 — Family Violence Act 2018 — Hague Convention on the Civil Aspects of International Child Abduction. This directions conference was to determine whether a lawyer with an Australian practising certificate could act for the respondent in the proceedings before the New Zealand Family Court. The applicant father had sought a protection order against the respondent mother, as well as an order preventing the removal of their children from New Zealand and a parenting order. Section 107 of the District Court Act, which applied by virtue of s 16 of the Family Court Act, stipulates that a party to a proceeding may be represented by a lawyer. "Lawyer" is defined by s 6 of the Lawyers and Conveyancers Act ("LCA") as a person who holds a current practicing certificate issued by the New Zealand Law Society. The Judge considered the exception to s 6, s 25(1)(c) of the LCA, which permits a lawyer outside of New Zealand to provide legal services in New Zealand, under the circumstances where it is essential that the lawyer has knowledge of the law of a country outside New Zealand or international law. The Judge did not accept the submissions in favour of the Australian lawyer acting: the issues at hand sat squarely within the New Zealand jurisdiction; and the respondent's right to representation was not impinged on as the Australian lawyer could assist her and facilitate instruction of counsel in New Zealand. The lawyer therefore did not fit within the exception in s 25(1)(c) and had no right to act as counsel for the respondent at the hearing. The Judge did allow the lawyer to continue appearing by phone with the respondent but she was not permitted to make any comment in regard to the issues. Judgment Date: 16 December 2020. * * * Note: names have been changed to comply with legal requirements. * * *