Divorce Café

Parenting Disputes Across International Borders: What is the Hague Convention?

August 08, 2023 Henderson Reeves Lawyers Season 1 Episode 6
Divorce Café
Parenting Disputes Across International Borders: What is the Hague Convention?
Show Notes Transcript

What happens when a couple separate while living overseas, and only one wants to return home?  If you no longer agree on where to live...what happens to the children?

We were lucky enough to speak with Alex Ashmore one of Auckland’s leading experts on Hague Convention cases - fresh from the biennial Hague Convention Convention.  Listen for a master class on the how to (and how not to) of Hague Convention work, what you need to know if you are a parent wanting to relocate overseas, and how to write a short letter (lawyers, listen up).

Watch the episode here

More information about Alex 

Read the article here

Taina Henderson - Henderson Reeves (hendersonreeveslawyers.co.nz)

Shelley Funnell - Henderson Reeves (hendersonreeveslawyers.co.nz)

WELCOME to Divorce Café, the podcast where we demystify, detangle and (hopefully) detox the legal processes that follow a separation, with the EXPERTS in the relationship property world.  

We are Shelley Funnell and Taina Henderson.

TODAY we are investigating an international convention that New Zealand adopted way back in the 80’s when the fear with international child abductions was that a parent who had lost custody would snatch the child away to a foreign land with another system of law.  

40 years later things have changed and most of the people forced to return children under the HC are in fact the custodial parent – and most are mothers. Has the convention adapted to this changed dynamic?  Could it be causing more harm than it prevents?  What happens if there is good reason to flee?

Shelley: Today we are lucky enough to have one of Auckland’s leading experts on Hague Convention cases - fresh from the biannual Hague Convention Convention – he is a very experienced Family lawyer with 33 years at the bar! with a raft of high court and court of appeal cases to his name, he is a steady hand in all matters – domestic - although I’m not sure if that applies to doing the dishes, but he is also the holder of a masters with first class honours.  

Perhaps the MOST interesting thing about today’s guest however has got to be his 143 character limit…he is a rare being in a field where people love the sound of their own arguments - a master of the short and pithy reply.

ALEX ASHMORE, welcome to Divorce Cafe!

And thank you for hosting us here at the lovely Ponsonby Chambers…    

Ok, We always like to start with a bit of an icebreaker so could you please pull one out of the bucket 

What do I do with it? 

You can read it out. 

If you could be any Tv or Movie Character for real who would you be? 

Hmm we have had that one before haven’t we? 

I don’t know, but never with Alex. 

You can choose another one if you hate that one.

No, I’ll think of one – it has to be Better call Saul doesn’t it, it has to be Saul. 

Ahhhh Saul. 

Soft spot for Saul. 

You sort of identify there… 

Yes the chaotic practice method.

He’s a cautionary tale really isn’t he for all of us? 

Well hopefully Alex isn’t. 

First Season better call Saul. 

Yes Exactly. 

Ok, so that we are all up to speed on the topic for discussion today, and I have to be honest full disclosure my knowledge is quite limited maybe to the movies and what I have seen on TV but Alex, can we put you on the spot and ask you to explain:   

 What is the Hague Convention, and how does it work?

Sure, the Hague Convention is as it sounds it’s a convention that was formed in the Hague in 1980 and it has been adopted and ratified by various countries since then. I think New Zealand was about 1990 when we came in and it’s ratified in different ways.  In New Zealand it’s ratified by inclusion in a domestic law so if you look at the Care of Children Act there is a Section (I’ll just grab that) Sub Part 4 and Sub Part 4 of the Care of Children’s act runs from basically Sections should have prepped this answer... 

No you’re keeping it real. 

Basically goes from Sections 94 down to 124 and that is effectively the Hague Convention but embedded in our law so we don’t go back to the international documents we just go to the Care of Children Act, so that sets out how it works. As you said Taina, when it came in originally it was about non-contact, non-custodial parents, snatching children and running away but it’s evolved over time, so the people we are coming across the convention are quite different.  The point you made - that is accurate - is the last probably 10 years it’s mainly custodial parents but we are seeing changes still on that front as we were talking about before.  What we are also seeing now is shared-care models becoming more common in Australasia in particular. It’s often a share-care model that has gone wrong. 

Right, so there’s not one stay at home parent and one working parent? 

Exactly. So often it’s shared–care and also often we are seeing children moving back and forth between families, so a family in Australia, a family in New Zealand.  A lot of things aren’t abductions per say they are intentions - some where a child was sent for a 6 month trial is not returned and then we had a whole raft of things that are hopefully now historic which are the Covid Cases where we had people locked down in one country, they went for a week Covid came and they are there 2 years later...so it’s the Convention stays the same but the facts keep changing and changing. 

And our Courts get to interpret what it means each time.

Sort of, sort of.  There is a concept called international comity which means the cases internationally are supposed to be the same. In the real world we actually only look at largely Commonwealth countries, if we’re honest, because they have got similar legal systems.  We are influenced a lot by UK decisions and Australian decisions but it’s no one-way street.  A lot of the more recent UK decisions in many ways reflect decisions that we were making here 10 years ago, so it’s not a simple colonial model where we sit obediently following our English friends.  Often they are adopting our ideas and you get these weird feedback loops where UK decisions reflect older New Zealand cases that then get adopted by New Zealand again which you think the idea actually came from here 10 year ago so there is a degree of similarity but yes the New Zealand case law is unique

I reckon skip to question 2 as we have nailed...

What are the principles that underpin the Hague Convention?  

At its hub if you read the Introduction of the Hague Convention and also the  Perez-Vera commentary introduction the core idea behind the Hague convention is that it’s not in children’s interest to be abducted and there for it’s supposed to deter abduction.  And also the other core principle is supposed to be that it’s in the children’s best interest to have decisions made about them in their home country.  The key point with the Convention is at least in theory is it’s a forum instrument, it’s not about what’s best for the child, which is something people really struggle with because it’s so deeply engrained in us all decisions about are children are what’s best for them, but it’s not, under the Convention.  

Yes, so can you remind us what does that mean it’s a forum based decision not a best interest based decision?  

It’s not about where the child should live, it’s about which Court makes the decision about where the child should live.  So it’s a step before, so that’s the mantra often it’s saying look we don’t want to know your custody argument - people are often saying yes but he’s an alcoholic or she and her boyfriend are a dreadful person - or girlfriend, and often in Hague stuff the argument is that doesn’t matter, that is for the home court to work out.  We are just here to work out...we are just here to talk about which Court makes the decision, not make the decision itself.  And it’s a complicated Convention in the way that the tests are quite different, do you want a quick rundown of the steps to go through it?  

I just have a quick question, does that mean the child has to be in that country for the Court to make the decision?  

That’s the $50,000 decision. I think practically they do. There have been various trials over the years and it seems to happen every few years where they say, why can’t we just leave the kid here and we will have the day to day hearing over there? 

The problem with that in my experience is multiple: one, the hearing is a bit of a rush job really, because we’re not taking it that seriously. We know the outcome we want, so the person in the home country can feel a little bit of a lack of justice. They think, well hang on you know I’m in need of a ‘camera’, my kids over there how does the lawyer for child see my child?

Because the other parent stays behind too right? 

Assuming so, you would assume they would stay, so the lawyer for child is not seeing the child, how can the Judge meet the child? 

So that’s the first issue.  The second problem with that is a lot of the thinking is a few years ago what was happening is they were fast tracking domestic hearings but that of course provides another impetus to run away because you think if someone comes to your office says “I want to go to Melbourne,” and you’re going to  say we’ll file and it could be a year but if you just get on a plan and run, you’ll get a fast track hearing within 6 weeks and you will be in Melbourne and they won’t want to bring you home.  So the general understanding is no, the child has to go back and you have to have a hearing there and that raises - there are some issues raised by your question as well. The degree to which New Zealand can interfere in the processes in the home country, can we fast track it?  Can we say the child won’t be present or is that actually their decision? Send the kid back and they can decide what to do.

Can you run us through while we are kind of in the basics section, can you take us through Section 105 and 106 I guess, the Principles. 

 The Convention is based on a series of steps.  The first point to understand is that use of the Care of Children Act is kind of privilege and if you are using it you get fast tracked resources, you get the best interest of the child coming second.  It’s all these normal rues that don’t apply. Not everybody can get under that Section so, to use the Section there are three steps.  The first thing is Jurisdiction, so does the person seeking return have the Jurisdiction to order  return, do they qualify to use the convention?  And they have basically got to prove they have Rights of Custody and their Rights of Custody have been thwarted, in practical terms. What that really means in New Zealand language are they a guardian, that’s really the test, once you are a guardian if someone has been taken out of the country without your consent then yes, you are in basically.

 Do you have to have been exercising your Custody Rights? 

 It is interpreted very broadly, I mean, because your “custody” - it’s called rights of custody in the language of the Convention but that is not the same as day to day care.  Rights of custody is properly understood as guardianship and guardianships rights are often negatives - the right for the child not to be removed, the child not to change schools.  So you are always exercising those rights, so the New Zealand Courts have always taken a very broad role - a broad rule of that.  Where it is interesting is people who aren’t guardians, whangai adoptions, grandparents, that sort of stuff. You can have a child living with his grandmother for 12 years but she’s got no rights, and in New Zealand even those are aging out.  There was a period where guardianship in de-facto couples was quite blurry - it was all about your name being on the Birth Certificate and in the right way, and so there were some awful cases where by drilling down on how the Birth Certificate was registered they found the guy had no jurisdiction so good bye.  Those are tracking out now as those were pre 2004 so they are disappearing those kids. 

So that’s the first thing have they got jurisdiction?  And if they have got jurisdiction... 

And are they dealing between the right countries right, New Zealand and...?

Oh yes further back than that, yes it has to be a Hague country that has been ratified.

Can you remind us which are the most commonly come across countries that aren’t included. 

China and Middle Eastern Countries, although they are starting to...Pakistan has now come in,  I think somewhere off the Coast of Africa came in last year. They were talking about that at the Conference, so the net is widening, but the big exception of it, in New Zealand experience of it is China, that’s the big one that we are not seeing.  So basically if it’s a Hague country and you have got jurisdiction, the Act says return must be ordered.  The Courts can’t look at it and say I don’t like it. They have got to go back. They can only be returned if two things happen, the first thing a defence has to be made out so - that’s where the 106 as you mentioned comes in and the defences are set out in that Section...here’s one I prepared earlier... 

 No, it’s stuck on the back of Shelley’s page. 

It’s like a well-oiled machine.

 If you look at 106 it spells out the defences there basically and the defences are: the child is one year settled so that means at the time of the application they have already been in the run-away country for at least 12 months and that’s recognition that the Convention supposed to be what’s called a swift response basically and once the child has been here 1 year, 2 years, 3 years, it all gets a bit silly.  So if in fact the child was taken out of Australia but you haven’t bothered applying for 18 months, that’s a defence. 

Something to be aware of when you are trying to negotiate for the return. 

Really important.  If you’re negotiating for the return and you haven’t applied to the Hague Convention, keep your eye on the clock, because your colleague could just be stalling to get to the 12 month line.

 Lawyers don’t behave like that. 

Well it also raises an interesting issue if you can’t find the child.  So, if in fact you don’t know where the kid has gone and if they have run away from a country and they have been hiding.

 So you can’t make a general...? 

Not a global one, you’ve got to know which country they are in and that’s, there is a whole lot of area of law in that, which is very interesting as well. 

So that’s the first defence, then there’s the ‘rights of custody’ defence: was it a person who wasn’t actually exercising rights of custody?   But that’s not used very often but more importantly is: ‘consented or acquiesce to removal’ and that’s a very important one for run-away parents, well for the parent who is left behind, because you can get this awful situation where the person who ups and takes the child and goes, they go back to the home country, the person who is left behind doesn’t know any of their legal rights, they are terrified, often they are a migrant as well and feel disempowered.  The person gets on the phone and says, right here’s the deal you let me stay in New Zealand and I’ll let the child come home every Christmas to see you, if you don’t you will never see your son again, and the person goes OK, OK, OK , OK and there is a lot of interesting jurisprudence about is that actually acquiescence?  

 Is it a magic word that if you say, OK then ka – ching or do you have to have legal advice as to actually what your rights were and consent?  So similar interesting point if someone doesn’t really think that they had a choice and you can get interesting cases there with dynamics in the relationship where a person feels overwhelmed and overpowered: I’m doing this OK, and they go “Yeah OK” or she goes “OK”. 

Yes that’s where that “enthusiastic consent” should always be the rule for people who give consent. 

Yes, then we have the “grave risk”: which is the fashion of the day.  The grave risk will result in intolerable circumstances maybe discussed a bit later. There has been a huge rise in those, that is probably the biggest trend that we have seen in the last 3 or 4 years is the rise in grave risk cases... or 5 years.

And the actual physical violence one:  

Basically the grave risk is “place the child in physical or psychological harm” or “place the child in an intolerable situation” so basically it’s a broad spectrum, and we will talk about that a bit more in a minute. 

 Then there is the “child objection” defence which is a very interesting one.  So if the child says I don’t want to and that is again - it’s not written down anywhere - generally the child’s got to be at least 8 otherwise it’s not going to fly.  And then we get into the need for psychological evidence at that point, as for the need of return, what’s the influence on it and it’s often said is the child objecting to the return to the country or to the parent?  Do they understand that they are not going back to live with Mum they are actually going to go back to Australia in general - it’s a very broad issue.

And at some stages children can be assumed to know what’s best for them and at other stages not.

Well and the argument at Hague Convention is why does the child get to choose if the parents don’t?  So that’s an interesting point. 

And the final issue, which as far as I am aware has never been raised in New Zealand, is the 106(1)(e) which is ‘a breach of a child’s fundamental rights permitted under the law’ and that’s almost always been ignored...without being disrespectful to anyone who’s listening that’s often raised by people who are a little bit on the edge but... 

I just wrote it down so that I could use it.

There is a growing discussion about things like tikanga, we haven’t looked at that too closely and that’s...

The right not to be separated from your cultural heritage sort of thing?  You heard it here first. 

And I think ‘watch this space’, I think it’s an interesting point.

So those are defences. 

And then the discretion. 

Yes, you are ahead of me, well ahead of me. 

Sorry (Laughter) 

So that’s right, the person has to make out jurisdiction.  If they make out jurisdiction, the person who has left with the child has to make out a defence, if you don’t fall into one of these 5 categories there is mandatory return the Court has no choice.  So you can’t just say in general - I don’t have any of these defences technically but it’s best for the child to stay here for the following reason: the school is better, and my mother lives here and my father lives there and he really likes mountain biking – nah, doesn’t cut it! 

So you have got to get home under a defence.  Then and only then do we move to ‘discretion’ stage.  So if you make out a defence it doesn’t automatically follow the child stays.  The Court may refuse to order return, may.  And that’s a very important point and that’s the discretion stage where a lot of the jurisprudence is about and the discretion is generally understood as a balancing act between, on one hand what is best for this individual child and on the other hand the general principals of the Convention which is to prevent abduction.  And it’s been balancing those two factors.  There is a lot of debate at the High Court level as to whether that is correct or not and there is an argument that there are now contrary views between the Supreme Court and the Court of Appeal on that point but that is for another day. 

But it is an interesting Act and there was a time again these things could change, there was a time where you just could never resist return because even if you got home on the defence the judges inevitably nailed you at the discretion point and that is changing.  It’s now altering, it’s now generally accepted if you can prove grave risk it’s a no brainer the discretion will always favour staying here.  You are never going to order a child back if you found it’s ‘grave risk’.

And we are going to talk about a specific case on that. 

But if your defence is say – ‘child objection’ it is pretty hard to beat the discretion in the absence of any other factors.  Because the Court will say ‘I get it, you don’t want to go back, but sorry mate here’s the Convention Principals’.  But the key point to make if you are acting for the person who has come to New Zealand you have go to get through all those gates, defence alone doesn’t get you…never underestimate the importance of the discretion stage as that is often where the battle is. 

Because one of the things the Court is balancing up is the best interests of other children not to be abducted, right? 

That’s exactly the point, one of the unique features of Hague Jurisprudence and the convention there is some domestic stuff - something called “individualised consequentialism” so in other words it’s what is best for this particular child?  But it doesn’t take into account other kids, not even step – siblings, you can say it is dreadful for that child over there but it is good for you. 

But the Convention does...

The Conventions is actually a ‘general consequentialist’ so you can say, and there are cases about tears before bed time regarding children and saying  ‘sorry it is going to hurt you but there are a whole lot of other children that aren’t going to be abducted  because of this case so we are going to put their needs ahead of the others’, so that again is a different strand of the Jurisprudence we don’t normally get.

Yeah, that could be quite a harsh pill to swallow.

Take one for the team – that’s not part of our normal child practice. 

We don’t do that to adults, right, better that 10 guilty guys go free than 1 innocent man goes to jail?

How do you bring a Hague Convention case and how do you defend one? 

Surprisingly - we are surprised by how many lawyers don’t know the answer to that question – it baffles me. 

Me too. 

Bringing one is really easy, so if you’re in New Zealand and someone has taken your child out of New Zealand without your consent, you call the Central Authority in Wellington. The Central Authority in Wellington leap into action, they will assign a lawyer for you, the lawyer will assess the value of the case, and if they think yes it’s got legs that lawyer will file the application for you. 

So that’s the first bar. 

That’s the first bar, but they are on  your side, they aren’t trying to filter you out. They want to  take the case - they are fun - but if it’s a ‘dog’ they will say sorry you’ve got no jurisdiction or they have an amazing grave risk defence or whatever.  So that’s the first thing, so that person will assess it, if it’s a go, they will then tell us, the Central Authority will say ‘off you go’. That lawyer works with you drafting the papers, so you file an application an affidavit of applicable law that goes down to Wellington. If the child has been taken to Australia it goes from Wellington to Canberra and then to the State.

So the person goes to their lawyer and the lawyer goes to Central Authority? 

You don’t need your lawyer.  Sorry lawyers.

Ok so the Central Authority appoints a lawyer.

You telephone the Central Authority and you can, by all means, use your lawyer but your lawyer isn’t going to do anything more than give you a phone number.  That lawyer that Central Authority allocates for you is free – there is no charge, they are then the liaison person between the Central Authority and Australia who runs the case.  If the child comes over here, we get the reverse procedures so the way it works if you’re acting with the Central Authority Canberra will call Wellington, Wellington will call you and tell you to file in Court.

And that one, you do have to get your own lawyer and you do have to pay for your own lawyer? 

Well nearly, this is where the person is in Australia, so the persons in Australia they will instruct using the Central Authority.  If you’re the person who has come to New Zealand with the child you are on your own, so you do need to instruct a lawyer, you can get Legal Aid but it’s the same test as everyone else. 

That’s one of the, to be fair, the injustices of the system, is that the person who is left behind gets a free service and  a good service because they are good lawyers whereas the person who has run away is often scrambling around trying to find... 

I saw a statistic in one of the articles about it saying that New Zealand had spent $688,000 on Hague Convention cases, this is in 2020 right so we are 3 years out of date but $688,000 on defending on Hague cases, most of that going on one case at that stage which is the case that we are going to talk about later. 

That’s a lot of money right?

Ah ok, There would have been experts presumably as well. 

Right, Ok, cool.

So that’s how you bring them basically, that’s how that works. 

Ok what are the… I think you have covered this a little bit, 

Yeah I think... 

Should we miss that one out? 

Yeah I think... 

Should we do the recent statistics?

Do you have any recent statistics on the percentage of decisions resulting in return of children to New Zealand?

 21.55  This is one of the distinct answers you guys really like …. No idea.

 And no feeling about it? 

 It’s probably what you said is pretty accurate really. 

 I did in my googling there was some research done by a young woman I think in Otago I believe it was I hope  I’m not doing her discredit that was saying that in 2017 at the time she wrote the article that 68% of applications related to the primary caregiver or actions of the primary 
 caregiver and of those that 72% were the mother, so that’s, but not in terms of how many people get returned.  Would your feeling be that most decisions result in return or is it…

 70 -75% that’s very “gut”. 

 That’s the purpose right, fast and brutal. 

 I am quite interested because going totally off piste but then presumably they have another hearing about the actual custody? 

 In theory. 

In theory, so do they ever bring them back, meet all those requirements and then say it’s in the best interest of the child they go back? 

 Yes, it happens all the time, 

 It does happen all the time, 

 I don’t practice in those countries but I can think of several cases in the last few years where people have been Hague’d back to New Zealand, applied for relocation, got relocation and gone, and that’s how it’s supposed to work.  That’s the whole point.  It raises interesting issues because, I don’t know the stats in this but a lot of people just don’t have the resources. It’s all well and good saying run your full case but they can’t, often they don’t go back themselves, but they will stay in New Zealand. That’s a common thing, not terribly common but it does happen. 

So, are we ready or is it time for an International Court sort of ‘Star Wars style’ where there can be hearings on the actual merits on the case rather than this Hague...? 

Your conspiracy theory listeners are going to be going nuts at this point. 

Really why?

It could be run by the UN.  It’s a nice idea, which law does it follow? 

But you could still do it on the basis of the law of the country of habitual residence couldn’t you?

You could. 

But everybody wouldn’t have to travel like you were saying earlier and you just make sure you get the evidence, you cross examine... 

How do you appear? 

You appear audio visually, we all did it during Covid.

Possibly. 

 I could imagine all those Star Wars characters appearing and discussing...

That would be fun, we could all fly to Paris, I think it’s good, I think the political level is quite high. I think the buy into that would require enormous amount of  investment of time and money and on a certain level it also undermines the Convention because the argument would be, are you saying  every relocation case is heard in the Court or just Hague ones? 

Well I don’t know, If it worked in Hague I suppose then... but it’s only,  it’s mainly going to apply in Hague Convention cases right because the parties are in two different Countries. 

So if you want to access to the Special Court you have got to run away? 

Hm, yeah if you have got an across border issue with custody you can apply to this Court? 

Yeah, give it a go – the only thing as I said because I am an old school Haguee, you have got to be careful about any solution that incentivises running because you get something.  You get access to a special Star Wars Court, you get access to the special funding and that’s the trouble.  Without being too brutal, and this is on both sides of the coin, there is a little bit of a myth that the people who fleecountries are these frightened little rabbits who don’t have any understanding of the jurisprudence and they just run in their bare feet to the plane.

And of course there will be some like that.

There will be some.  There’re also a hell of a lot who have called their lawyers. 

Calculating right?

It would be a rare Hague lawyer who doesn’t get a call a month from someone overseas saying how do I do this?  

We can skip ahead to my question which is: What advice do you give people to avoid Hague Convention issues?  If you are overseas right now picking up the pieces after a separation far from family, no connections over there, maybe no connection to the country you are living in, what advice do you give that person? 

If they want to leave or...?

If they want to come home to family.

Telling you all our secrets now.

“Socialising” legal advice. 

 The first thing is since we are using television analogies there is a wonderful line from the Wire that says if you shot at the King you better not miss and it’s a bit like that. 

Omar.

Omar, that’s exactly right.  So if you don’t, don’t just give it a go because If you give it a go and you get returned you’ve lost a lot of mana, you’ve lost a lot of money, you’ve got a pissed off home court that doesn’t like you.

So assuming you don’t want to, you know, assuming that you want to do the best thing what’s the best? 

Well assess have you got a chance?  It sounds awful bad but I mean there is nothing wrong with that so just think...

Have you got a chance of winning a Hague return?

Have you got a chance of winning a Hague return?  If you don’t have a chance of winning a Hague return, what are you achieving here?  Now you might occasionally - people don’t lodge - occasionally the left behind person just thinks what am I going to win?  If I win I’ll get back this angry person with angry children. I’ll just let it go. So that does happen but the flip side is if your partner the left behind person is aggressive and they do pursue it you’re worse off.  So that’s the big question really is it worth playing this game or are you better to invest your money in your case back there?  We often say this to clients is look you’ve got finite resources you are going to burn $20,000 and 2 horrible months on a Hague Convention case.  Do it over there, just get a lawyer and file. 

Have you come across a satisfactory arrangement for parents that live in different Countries? 

 Sharing a child? 

 Yeah. 

 That’s not a Hague question that’s a family law question. 

 We ask...

 Of course, a lot of people do that you know it’s a very common situation.

 ...because a lot of them seem pretty unpalatable, they come back at Christmas. 

The child has got live at one place, the child’s got to live in one place is the reality of it.  Once they hit school age, the classic one is the person who is in the other country has a disproportionate amount of the holidays so they get more of the holidays, it depends where they are.  Like if they’re  in Sydney, actually Sydney is not that much further away than Christchurch really, so it’s not that hard.

Easier to fly to than Napier at the moment. 

That’s right yeah, so if they live in Iran it’s going to be a nightmare, so that’s the issue really, overseas is a big place. 

And the Judges are making orders about audio visual contact. There used to always be regular telephone contact. I remember there always used to be provisions - here’s a phone card so that the child... 

Unfortunately and I don’t know if this is your experience again, this isn’t a Hague it’s sort of a family law …a lot of the stuff depends on the attitude of the parents.  So if both parents are on deck and are supportive ‘hey no no no you can’t go to Jamie’s, you just wait as dad’s calling or mum’s calling or’ ...but if they are going to sit and say she has just gone out I’m not going to disturb her, I’m not going to etc and vice versa and it’s not a gender thing or anything but that is an issue I think.  But that’s probably the same of any parenting arrangement actually – if it’s a success or otherwise, it largely depends on the agreeableness the parents have brought into it.

No, but that’s where a good lawyer can come in you know, a good lawyer perhaps advises their client, ‘here’s what’s going to serve your best interest in the long term.’ Make an effort to this because clients are really influenced to what their lawyer tells them aren’t they? 

Are they? 

Yeah, sometimes, the good ones are.

Only if they like it.

And it’s not only about winning, I mean we have all seen that, you can win the battle but lose the war, so you can successfully resist the relocation and then have this angry ex-partner who...  

...And child 

It’s a difficult one, you shouldn’t pander to your ex on the one hand on the other hand you shouldn’t aggravate your ex, so it’s a case of finding a happy medium. 

Find a lawyer who has been in practice for 33 years and ask him what to do. 

Yeah, possibly. 

Ok,  we love a good case, everybody likes a good story.  And when you are with a Hague Convention expert that’s the best time to talk about a case, we have, or I discovered, and you have been talking about, the case of LRR v Col, (C O L sorry not Cole) [[2020] NZCA 209], that was, the most recent decision was in 2020 in the Court of  Appeal.  It was a really interesting case I think because it really put the Convention and its purposes and its underlying presumptions to the test.  So I’ll just give a quick bullet point on what the  facts were of that case, catch everybody up and then maybe you can  tell us about how that went through the courts, So; 

·         It’s a case that went to the Court of Appeal  after a one parent, a kiwi, fled from a Women’s Refuge in Australia back to her parents in New Zealand with the parties 2 ½ year old child.  

·         The parents had had what the Court described as a dysfunctional relationship.  Both parents had had issues with alcohol abuse I think that was accepted in Australia, and were methamphetamine users. 

·         There had been multiple police interventions during their relationship and family violence orders made by police. I think it was in Australia.  When the mother fled the other party was facing charges of assault, breach of protection orders and bail conditions.

·         She left in 2017 and the violence was found to have escalated that year.  The evidence presented at the initial hearing pointed to the mother having suffered depression and having made several suicide attempts as a result of the violence and dysfunction.

·         On her return to NZ things started picking up for her she was supported by her family, she got herself cleaned up, went to AA meetings, and got a part time job and apparently made a good job of looking after the child. 

·         The father applied to enforce his rights under the rights of the Hague Convention the and return the 2 ½ year old to Australia to have arrangements determined.  He denied the violence and said the mother was the violent one.

Now in the Family Court the Judge said it would result in a grave risk of intolerable harm, the child being  returned to an intolerable situation to return him to Australia and also it would expose him to a grave risk of physical and physiological harm.  

But In the High Court it was a different story, what happened in the High Court? 

Well it was put a more traditional approach was taken, from memory I haven’t got the High Court case in front of me but from memory what happened was they went back to some of the more traditional models that they could rely upon Australian Social Services for support etc etc 

So they didn’t make one of those defences?

No, they failed.

The Judge said that, yep failed on that and if I can just read a couple of the things that - it was France, Judge France, maybe that should be Justice France in the High Court, now retiring I see - so he made the decision that no, the Family Court was wrong and no, the child should go back.  And some of his statements I think it makes it really clear how a judicial discretion how that kind of plays into things and a person’s own personal belief system but It might be more about the evidence that was before him, so he says; 

“the Child wouldn’t be at risk anymore” - so there had been, there was pretty clear evidence of violence in Australia - and the Judge said “yeah but that was when they were living together, there is no evidence about when they are not living together.  They have separated now” he says “the core situation which lies behind the bulk of the previous misconduct by both parties will not exist.  There is no history of how matters will work out once they are separate.” 

So that’s one thing which is interesting, then he says “If the mother cannot herself tolerate the situation, there is no evidence to say the father cannot care for the child.  The primary risks are to her, not H”. 

Which, yeah I’m glad that I have read the Court of Appeal decision and spoiler alert it gets a bit happier there, and the last thing which made me a bit worried about where he was coming from:  “Without minimising the stresses on the mother, and recognising her perception of the situation and the risk the father presents, in consider the circumstances to fall well short of establishing an intolerable situation for H”.

Now something changed in the Court of Appeal and that was partly around what the psychologist’s report said. Can you tell us what happened in the Court of Appeal? 

I haven’t followed it too closely, so you can do it, basically much further evidence was filed was my understanding. 

So they, I think others had the same reaction as me, that whoa. I would have thought that the mother being suicidal and the actual violence and history of violence and dysfunction might have - yeah that you would’ve expected that they would have an effect on the child. 

More of an effect.

And that is what happened in the Court of Appeal. So the mother got leave to introduce a whole lot more evidence, there were more psychologists brought in and they talked about ‘yes there is a very real risk to a child whose returned to or brought up in a situation where the mother is at risk of physical violence’, that there had been breaches of Protection Orders so that Australia couldn’t guarantee her safety.  In that case, it was also relevant that Australia is pretty crappy to New Zealand citizens right?  So she wouldn’t be able to get Legal Aid and other housing support and things so her situation was going to be pretty precarious.  A precarious situation because of violence and financial stuff for mum is precarious for a child and the Courts said, which seemed like a big deal at the time in 2020 the child doesn’t have to go back.

But there have been some developments on well, that case, more recently that we will get onto. 

So I guess if there is a question in all of that, it is-

Speed is at the heart of these hearings, and timeframes are very short.  In that case LRR did it have an effect on the outcome at different levels because there was no cross ability to examination, and limited time to produce reports to help the judge assess risk? 

That’s exactly what happened, I think, well there is a couple of issues really, I mean the first thing is the importance of LRR itself which they call an Appeal Case which we should probably talk about because there is a lot of chatter about it. 

Humm, what was the chatter? 

Well there’s chatter about it on multiple levels.  There were schools of thought that were saying ‘this has changed everything, no one is ever going back again’, ‘Hague Convention has effectively been over turned by the Court of Appeal’.  Some groups are going ‘Hooray’, other groups are saying ‘Disaster’ but everything changes now.  There were other groups that were saying New Zealand would become a laughing stock internationally.  We’re following a path that no one has ever been down before etc and I think a lot of reactions to LRR were over the top and if you actually read the decision and see what they say or go through the Jurisprudence in it, it really it’s not quite as radical as it said or they are now talking about it as Evolution not Revolution.  So it clearly was a step and the Judge itself says especially in the more recent case, they seem to say actually it was a big step, LRR seem to say it wasn’t a big step although they did take a side, anyway so it was a big change but it was more a consolidation is a better way to understand it. 

Do you want a bit of background on that, on what I’m talking about? 

Yeah, 

So basically, as I said before historically,  getting home on a grave risk defence was almost impossible.  And this is because New Zealand adopted what we call a ‘narrow approach’. And there was a series of presumptions that we put in play that actually weren’t in any legislation but we just adopted them, that meant it was almost tautological - you couldn’t do it.  So for instance the assumption would always be that the home country (because New Zealand had ratified the Convention with the other country) means the New Zealand Government had looked carefully at the other country’s entire social system, [that] they had satisfied themselves that they are magnificent, they could handle returns therefore you could assume - this goes for Australia - have the tools to make it there.  If you follow that through you are never going to bloody win the Hague risk. You couldn’t do it because the child will never be in intolerable circumstances because the act of ratification implies there would never be intolerable circumstances - so that was the first problem.

The second problem, which is one of my obsessions, there was an argument that was referred to as ‘Coach and Four’.

Say it again? 

‘Coach and Four’ and this comes from an argument - a line - from an English Case way back in the 90s I think where they said “if you allowed the impact of a parent’s bad behaviour on grave risk, that would drive a Coach and Four through the Convention and we can’t do that”

So the classic case is a woman, she is the sole carer of her 10 week old baby, she runs away from Australia to New Zealand, she says: “I’m not going back, do what you want I’m not going back.”  And they say “Well you can’t take a 10 week away from a primary caregiver, that’s insane, that’s intolerable, and the Coach and Four argument said: you can’t even take that into account, missy you can’t come along here and create a situation you’re relying on. 

Benefit from your wrong.

That for years has been a part of that so the combination of those factors meant ‘grave risk’ was almost impossible to run.  But over the years, those assumptions begin to get eroded.  For instance the idea that Australia (it’s always Australia) the idea that Australia had its magical social system was questioned in many cases, there was a case called Coates v Bowden I was involved in about 20 years ago where there were very similar facts to LRR and we proceeded in the High Court, well the Court was located in the High Court, it doesn’t matter what you did, this woman could not be safe going back, she was so damaged by her environment, you could have the most well-meaning system in the world the act of landing in Sydney Airport is going to trigger everybody.  There were very extreme facts but so was LRR, quite extreme facts. the point I make is these are not new ideas that were bubbling around and the idea also that you couldn’t, that the Coach and Four thing was misguided was also taken into account in English decisions, so what LRR did was it brought on board and consolidated these arguments.

That it’s not so black and white. 

It’s not so black and white – and if you look at (I’ll just grab this decision)...

Which one are you after? LRR?

Oh here it is – basically for the lawyers out there are paragraphs 86 of a decision through to 96 - set out what’s called “the 8 points”.  And people talk about the 8 points and that’s what LRR does and that’s really the nub of LRR but the 8 points aren’t new, they are not radical, but what they do do is bring all together in one place in one decision at a high appellate level principles that are scattered through dozens of cases and I think they have put to bed at last this whole narrow interpretation argument of grave risks.  

So what they are saying is you can’t assume that the current country will be safe, you can’t not look at evidence because you think mum is naughty so there will be return sometimes etc etc so they are not new ideas but they are put in the same place.  But I think the central part of LRR is although it’s a swift procedure and although we’re moving fast we are still a Court and we still need evidence.  So just as you can’t just say “I assume Australia is safe” - you need evidence - you also can’t say “I’ll be at risk” without evidence and that leads us into the next Court of Appeal decision if you want to raise that, 

Yeah which is Roberts v Creswel (in the CA [2022] NZCA 62)?

Yep, that’s right.

So tell us about that, so you have just come back from the convention, you described this one as a hot case, it came out at the end of February. 

So basically this is a new Court of Appeal case, it’s got similar, well one similar Judge to LRR and in some ways it’s almost LRR II from my perspective. 

Without the P.

Without the P, opposite result.  So in the Creswell decision the High Court had said no you can stay, grave risk of intolerable risk of Harm.  The Court of Appeal said nah, don’t think so, back you go, so the children were sent back to France.  In this decision - and the interesting point is that similar to LRR, because just as in LRR the higher Court had much more expert opinion than the High Court did, in Creswell, they had far more expert opinion than the lower court because in this case the authority brought in their own experts, well the left behind parent brought stuff in at the higher level. 

And that was evidence about what the situation would be like back in the home.  

Two things, two things, so the first thing is you actually had an Order from the French Court by the time you got to the Court of Appeal, so you actually could say what it would like, look so people weren’t speculating - the French might do this, the French might do that - this is what the French are going to do.  Secondly you had expert psychological evidence countering the expert psychological evidence of the mother, so you had two psychologists disagreeing with each other which hadn’t happened further down. 

And again that’s the thing between speed and promptness and a good decision... 

And this is the balancing act, all of these cases - just the nature of the process - are taking months to go through the system, I think one to two years is common. 

For Hague Convention?  Yeah and what is the rule: “it’s done and dusted in 6 weeks or I want to know why”? 

A reporting letter to teacher, exactly, so this is what you spoke of before - the tension between the need to move quickly and the need for experts - but I think this is the main take-out of this. You should take from the more recent appellate cases are: it’s not as simple as just get on the plane, but it’s also not amateur hour.  You’re going to need to come to Court with proper evidence and both sides do, the Central Authorities can’t just sit there and say Australia is great thank you, they have got to produce evidence of challenge, the person who’s trying to resist return can’t just turn up and say I’m frightened, you need to be a bit more advanced than that. 

So what was the difference between this case and the other case, because this is the opposite decision? 

The facts. 

And so what do you think are the critical facts in that? 

The expert evidence. 

And so was that that they would be safe in France? 

Not that they are safe it’s just that it wasn’t as bad as you said - that you’re not going to melt down as bad as you’re going to say. 

There was less evidence of violence, because he didn’t have the alcoholism, the methamphetamine - LRR was quite an extreme case, Women’s Refuges,  the Creswell decision they were living, I don’t know if it’s fair to say that they were living in chaos part of the time and...

Not so intolerable? 

You don’t want to belittle the woman’s experience, I don’t know what she went through, but this is the point you have to agree with LRR it was extreme, it was horrific, it was violence there was crime I think, there was drug addiction - it was not good.

Punches in the face. And in the Creswell one as well, so you had that first Family Court level order saying ‘Ok so here’s what we are going to do: Mum’s in New Zealand Dad’s in France, Mum can have them the holidays, Dad can have them the rest of time.  So there was a decision which I think that actually helped with those first decisions - that you don’t have to apply because you live too far away, but then the father then applied to amend that decision didn’t he?  So that at the end of the day, the Courts said: well if Mum comes back they can have shared custody so that some of the intolerable conditions - part of the intolerable condition was ‘Mums not going to have the kids for 44 weeks of the year’ - and once it was varied a little bit it was less intolerable and they were able to ... 

And I guess that goes with all those principals you were saying at the beginning which is it has to be pretty drastic before you don’t conform to the Hague Convention because you try to stop child abduction so it has to be this real extreme case with some facts?

It has to be extreme but not so extreme that as to never happen in the real world, does that make sense? That’s probably the thing and I think that’s where we were erring before through a series of quite logical and appealing individual propositions all added together meant that defences just weren’t happening.  It couldn’t be done and I think that is what has changed - we’ve unpacked some of the old 80s / 90s models, LRR has put them to bed. 

But it’s showing we are not being crazy here we are still being reasonable and in this circumstance you are still going back. 

That’s why these 2 cases are quite important because they balance each other out.

So there’s no reasonable solution in the first case and there is a reasonable solution in the second place? 

Intolerable – it’s a big word. 

Yeah it is, unable to tolerate. And I think we talked about what had happened since then, did you want to go...? 

Yeah, so this is a question from a friend as you will tell from the wording of it: 

Family Court judges in NZ making decisions about children have the statutory mantra that the welfare and best interests of the child are to be paramount…. 

You haven’t had this question before!

 I know, what the hell is this? 

Sorry (laughter)

...the Convention put a gloss on that paradigm: short of palpable harm, the welfare and best interests of the child are as judged in the courts of the country of habitual residence (it’s the underlining Principal right.) Do you think the removal of the welfare and best interests test until the child is back in the country of habitual residence was justified? 

But any way don’t answer…

In the sense of the certainty it provided, did it work? and is it fair to say that the near certainties which the Convention sought have been lost to the vagaries of the Judicial discretion? 

Probably just answer the last one! 

Three questions there. 

 Answer the last bit. 

Well the first questions  really simple, it’s a political question 

Is it? 

Well yes, the politicians change the Act, we didn’t, so it’s what it says, so yes. 

So is that talking about a change in our COCA Act?

Yes, Sub Part 4 changes the Care of Children Act, until Sub Part 4 was put in all questions about Children were about children’s best interests and the insertion of the Hague has changed that and it says what it says.

And that’s something, how would you paraphrase that, it says that Section 4(1) which says that children’s best interests should be paramount...

Doesn’t apply, 

Doesn’t override. 

Doesn’t apply to Sub Part 4,

Doesn’t apply, right?

It sort of applies, it applies at discretion stage, but no, it’s a whole different set of rules. That’s what I said at the beginning. First question is can you use Subpart 4, because it’s a pretty snazzy little Section, well part of it, so the first issue is political, that’s what the Parliament said, that’s what we’re stuck with. The vagaries thing, can you say that again? 

Is it fair to say that the near certainties which the Convention sought have been lost to the vagaries of the Judicial discretion? 

Na, I think that’s harsh, I think.

Especially with this case, 

It’s just more nuanced it’s more subtle I think, and I think one of the problems that was happening before that I think we briefly talked about a lot of these sharp lines saying ‘it’s not return to the parent, it’s return to the country’, ‘it’s for the home country to decide the case, it’s not about the case’:  life’s not that simple.  Things blur into each other so the effect on the primary parent of the process, the effect of violence on the Primary parent, we did ring fence things off too much before, it was a baby returning machine before, it’s not now. 

When a decision is made to return children, what happens next and what is the process for determining contact/ability to leave? 

Appeal, appeal, appeal, appeal, it depends where you are, if you are at the Family Court  you have the right to appeal – but don’t appeal for fun, if there is nowhere to go you’d simply say… 

When they get sent back, so this is Shelley’s earlier one, once the kid is returned to the County what’s the process then? 

Well  maybe we will take a step back before that even, so let’s say they are going back so the process is effectively it moves very quickly, that’s the first point to understand is it’s  often within a week or so, so you’ll have consent, they’ll fly back on a certain flight,  if the parent is going back they will fly back with them. 

Who pays for that flight? 

You do, the parent does. The parent can, the one who has run away doesn’t have to go back. There is no jurisdiction to force them to go back, so they can simply say do what you want I’m not playing.  And in that case normally the left-behind parent will have to come over or an associate pick the children up.  It’s a dangerous game to play though because they have got the kids now and so you often discuss that with your client who is having a little melt down you say “well look, it’s your choice but just long game.” 

It doesn’t look good at the next Court.

Well yeah, they often will say to you “he won’t last 5 minutes blah blah blah it will fall apart”.  Ok but be careful - if it doesn’t fall apart you have got  a problem. 

So any way, normally what happens, the person who is left will go back - it happens quite quickly, now in theory the second they walk through those green doors at the airport it’s no concern of ours anymore, so it then becomes a domestic problem back in Australia. We are increasingly getting negotiated returns so that will happen where you can often have a mediation...

After the Order is made? 

Or if they are going to give up, or if you think there is no chance of success you might say “look, this is a dog, lets negotiate here.” And so often that will dove-tail into orders over there being registered and all that sort of stuff.  It’s a bit complicated because you can’t make parenting orders while the Hague is in place so you often get this little game which I have done before, where you order return, you close the file, and then you make a domestic application which then gets registered in Australia.  That sort of dance because you can’t do them contemporaneously but it’s basically a domestic question, there is no special Hague result, it just becomes a domestic argument.

So then you are applying for access if you can’t agree? 

Or day to day care or whatever you want to do. 

And the Judge works it out. 

And relocation possibly at the same time.

And that Judge doesn’t even have to look at the Hague Convention? 

Evidence is evidence, you know it’s just like general practice isn’t it? If you know your client has been involved in litigation elsewhere on similar facts you want to read what they have said because there is only one truth.

And I guess if one party is saying you are going to abscond, I can’t trust you with this - whatever it is, I guess there is always putting the Passports at the lawyers office. 

Yes, OPR, that sort of stuff.

Whats an OPR? 

Order Preventing Removal, sorry. 

Ok, what, one of the things that struck me was, just because you go and live in another country doesn’t mean that you think its legal system is a great one for dealing with children.  What if the parties have got a limited connection to the country of habitual residence? Does anything change? 

You’ve either got habitual residence or not.  So you might have cases where you say they’re  not a habitual resident. I mean habitual residence, it’s a whole other podcast.  I mean it’s really interesting , the central point with habitual residence from perspective is people often see it as a question about which country is the habitual residence.  Is it New Zealand or is it Australia?  Is it Germany or is it France?  It’s not the question, the question is: is France the habitual residence?  Yes, no? Because you can have no habitual residence, there is no rule that says you must have one, you can have a Gypsy lifestyle where you just move around.

So what’s the jurisdiction there? 

Well the country will have its own jurisdiction, you just won’t be able to use the Hague Convention, you can imagine the situation where the family just sloshes around, 2 weeks in Thailand then you spend 4 weeks here, I don’t know you sell jewellery...

So you just need to be careful where you go and live? 

That’s the bottom line. 

You’re choosing the jurisdiction, presumably you can agree jurisdiction?

No.  

You can’t agree? 

It’s a question of fact.

Not if you no longer, don’t agree 

No, you often see those parenting orders in New Zealand and those parents agree habitual residence will be New Zealand - totally meaningless.  It’s a question of fact.  Parental intention is a factor, it’s a thing, but you can’t contract out of it, it’s not like you can’t sign a contract saying we agree it’s best for little Jane to live with me 3 weeks, to live with you 4 weeks. The Judge doesn’t get bound like that.

It might go to acquiescence or consent. 

Yes. 

Awesome, Shelley, Question 13. 

Lucky 13. 

It’s a crowd pleaser this one.   

 What is the 1996 Hague Convention on Parental responsibility and protection of children, and should we have signed and ratified it by now? How many years later? 27? 

It’s ridiculous, it’s a Convention that’s usually seen as an adjunct to the one we signed, it came later, I’m not fully up to speed with it but it’s basically it’s not seen as replacing the Convention, it’s seen as improving it and what it basically does as we were talking before it is allows conditions placed on Orders.  It sort of oils the water as transition goes across. Why we haven’t signed it is a mystery to everybody, at the Conference everyone said why haven’t we signed that including all the Government people and they have been saying it at every conference I have attended since 1995, I don’t know. 

 Come on guys, sign it! 

Apparently it’s coming, it’s coming.  There may be something down in the Ministry I don’t know about but it’s certainly not being debated at least among the circles I mix in so maybe higher up in the food chain.  

So would you say there’s a consensus among Hague Convention lawyers that we should sign it? 

Absolutely, I don’t know anyone who has said that they are opposed to it. 

I think we have done that next question. 

Great, so I was going to say just on that point, that bit about the conditions so if the Judge...it kind of makes the Convention better because if there was something the Judge was worried about in the other country, that if you could  alleviate it would mean that it was OK to return and suddenly the child is near the other parent as well, then they want to be able to make that Order but they can’t make the Order. You can return them but they are on their own.

Exactly, and that’s a really important point about Hague Convention cases and you see it between different jurisdictions.  Some jurisdictions just can’t grasp the fact that ‘we don’t care what you think’.  Larger countries are really bad - without being too rude, but the US and the UK are particularly bad - so you will often seeing Orders saying ‘the child is to return to New Zealand upon return the mother is to get paid $2,000 a week Child Support and the dad is to provide a car and they are going to go on holiday every second year back to the UK’.  And you think: ‘that’s fascinating Judge, good luck, but there is no Jurisdiction so thanks for that’ and orders – ‘these are to be sealed in New Zealand’ - but we can’t seal them in New Zealand. 

Is that because they have signed the Hague Convention on Parental responsibility and Protection of Children? 

 Possibly or because they have  a colonial mind-set, I don’t know. 

 Ok, awesome. 

It’s always a bit of a lecture from a parent isn’t it?

It’s now Quick fire question time so this one you have 10 questions with 10 seconds each to answer;

Do I get points? Is there a prize? 

We can give you points

In the Court of Public opinion please send us a text if you feel like Alex succeeded in the challenge! 

1.  What is the secret to a good short letter?

 Keep it short.  All this Conversation with short letters, I’m baffled at - but they are a thing.  You just don’t write as much, it’s like any lawyers letter isn’t it?  You’ve got to ask yourself what am I trying to achieve by this letter?  A lot of people...often you read a lawyer’s letter and you think: this is actually not for me it’s for your client.  It’s like - goes through their relationship property and it goes for pages about how great their case is and you think just flick to the back to see the number.  I just want the number, so yeah just focus on... 

I know the law. 

I don’t care what, but also is it $150, yes, no? – so I think just focus on what the point is, you’re often angling your client, saying what’s the purpose?  That said they are the boss and sometimes they want to point out they, that their husband ran off with the neighbour and that was really mean and that’s fine if that’s what they want to say. 

There’s a therapeutic purpose. 

Yes

But sometimes therapeutic purposes are better conducted in therapy. 

Therapeutic mediums.

Ok, Question Two, not doing so well;

2.  What is the best part of your job?

My Colleagues and my Clients 

3.  What, in a letter from the other side, might make you change your mind?

Back with the letters?

It’s what I want to learn from you.

Facts I didn’t know. That’s the classic isn’t it, you might not be aware your client signed a Section 21, Noooo...

Or is in Jail right now? 

Didn’t mention this.

4.  Would you say your biggest style influence is more Harvey Spectre of the TV show Suits, or Denny Crane of Boston Legal?

Neither of them. 

Ahhh Ok, 

This is another letter question.

 5.  What is the most common, WORST letter writing error in your opinion?

To explain the letter writing questions, Alex writes a really good short, snappy letter and sometimes this contrasts to some of my letters and I am trying to learn - this is what this Podcast is all about.  Teaching me about stuff.

It’s all about you. 

Stop talking.

 What was it again, I got talked over (laughter). 

So basically, the biggest error that you see when people write you letters from the other side, what’s the absolute WORST error?

Why are you writing this? Seriously, actually, what is the purpose of it and it’s like... 

No obvious purpose. 

Pages and pages yet again telling me your client’s version of the facts.  It’s not going to happen, I mean unless as you said before unless there is something real I didn’t know about, like the jail...have you ever sent a client’s letter who has called you in tears saying ‘oh my god I am persuaded by this’? ‘I have completely changed my view?’.  It just doesn’t happen and then it encourages them to write back... 

 6.  Do you think Suits star Megan Markel’s... (laughter) What?  This is my favourite question in the whole podcast. 

You need to go out more. 

Do you think Suits star Megan Markel’s real life experience will make little girls dream of being LAWYERS rather than princesses?

I don’t know, I don’t know her real life experience, I have no idea, 

I hear she has had a hard time of it. 

Has she? 

In the last few years 

Hopefully so.

Maybe lawyers and princesses if you’re going to be a lawyer first.

7.   Ok the question was: What is the best break up song?  But I think you should know I think it might be dependent on your sex because I pretty much thrashed any song by Pink for quite a long time because I tell you she has some pretty good break-up songs.  But what is your best break up song from a male prospective say?

Um I don’t have a best break up song, I never thought of it, what do you mean, what do  you mean? 

“Waaaaaaaaah”: put some music on 

Ohh, Massive Attack – anything by Massive Attack actually. 

Ok, good. 

8.  What has been your most toe-curling experience in legal practice – apart from this podcast - your most toe-curling experience?

Embarrassing. 

Do you not have toe-curling experiences? 

Ah, well I mentioned to you before about my spectacular performance in the Supreme Court where I knocked the water over everything. 

Tell us you might not of told us on air. 

I was junioring for one of my colleagues here and it was the Supreme Court which is the highest of the high, and my entire...I helped with some of the research, but my entire job was to sit there still and I managed to knocked the carafe of water over everything within five minutes of walking in.  So that was spectacular.

You probably made the other lawyers look good, so...

The last one was once when I was a baby lawyer going to Court in Christchurch in the High Court where I managed to misjudge the distance, got totally drenched in Christchurch rain walked into the Court like a wet rat in a gown and to find the Judge and my opposing Council discussing how they’d  seen their fathers at the golf course that weekend ... so that was really inclusive.  It was good I just sat there like drip, drip, drip. There are many other mistakes that I am not going to share with you. 

9.   What is your best trick for cheering yourself up after or during a bad day at work?

Go for a walk 

Hummm not in the rain though, with your gown on.

10.  If you could be any lawyer on the day they had a famous win?

Present company excluded of course. 

Who would you be and in what case?

I don’t know... 

Really? 

My friend Vivian... 

Justice Goddard in Scott v Williams?

My friend Vivian was the Privy Council on this one, Roberts v Creswell, Vivian Crawshaw and that’s a really impressive win so it would have been nice to be in his shoes making up... because it was a turning over, so yeah that would of been cool, they’re the ones that are fun aren’t they? 

The wins?

 The ones you think you’re not going to win. 

Yeah, you’re right.

And then you change the law!

Our last section is called: The Best Question Ever:

And for you Alex Ashmore, that question is:

What is the secret to doing a good job for your client?

Finding out what they want and checking on that again and again.  Just keeping that at the front of your mind I think and being honest with them about what you can do.  So it’s very easy to promise the moon, someone says they want blah blah blah and you say yeah yeah and then as you walk into Court saying oh we’re not going to win this.  So yeah I think finding out what they want and then liaising with them to see if you think it’s deliverable.  And also  other people might be better than you, you might have to say I can’t deliver that, try this person they might be able to, but I think that’s the most important thing you can do. 

This has been Divorce Café hope you enjoyed it, if you did and you want to look for other episodes they are online you can find us on Spotify and Apple Podcasts all the usual outlets (free outlets) and you can look for the article that is going to go along side this, you can look at some Alex’s cases and articles that he has got up online, but yeah join us again next time 

Thank you.

Thank you Alex.