For us as lawyers when we hear firsthand the stories of abuse and seek to obtain protection and often times parenting Orders there has always been a sense of this is not the first time this person has engaged in behavior like this.
Sometimes our client will say no “we were warned by an ex but just thought they were being vindictive” or sometimes they just never saw it coming.
Last year I was invited to speak on National Radio about the issue of us often not knowing or being able to obtain information on any previous family violence history, I also spoke that this has been of immense frustration to lawyers and clients that we are often delayed or never find out if there has been a prior history. We could once proceedings commenced seek under the Privacy Act a history but often it would not arrive in time before a Hearing leaving our clients more vulnerable.
The government initiative now allowing the Police to disclose whether or not their partner has a history of family violence can only be applauded as a major step forward in keeping families safe.
The Family Violence Information Disclosure Scheme (FVIDS) offers a person the ability to contact their local Police to make enquiries about the person they are in a relationship with if they have concerns about their safety. Any third party eg family or friend can also seek this information but it may be denied as the Police may view it should be given to the either the partner or a person better placed to protect the victim/potential victim.
Disclosure must be within 20 days of the application but if there is a serious threat to a partner and/or their children this information can be provided within 24 hours.
If you have concerns or you are a family member with concerns, then go to the New Zealand Police website (from our links page) to make a request or you can telephone your nearest Police station.
Contact us now to help you with this process and to obtain the necessary Orders to protect you and your family.
Violence between spouses or partners is often referred to as “domestic violence” or “family violence”. The term “family violence” aptly defines violence that occurs between spouses or partners when there are children living in the home. The violence that occurs not only effects and damages the victim, it also effects the children.
Often parents want to believe that they are able to protect their children by making efforts to prevent them from directly witnessing or hearing the violence, however children pick up on more than we think.
Family violence often causes the whole household to feel like they are “walking on eggshells” because of the uncertainty, tension and fear. You and your children have the right to live in safe environment that is free from all forms of violence, whether it be in the form of physical, sexual, psychological or financial abuse.
A common fear our clients have is that in order to get away from their abusive spouse or partner, they believe they will have to move out of the family home. This fear is heightened in circumstances where the victim is a parent who needs to ensure their child’s safety as well as their own.
We can assist you in obtaining Orders from the Family Court which will allow you to stay in the family home with your children until you are able to make other arrangements to ensure you are safe. Call us at Adrianne McLean, Barrister on 09 869 2097, we are here to help.
The Protection of Property and Personal Rights Act 1988 (PPPR Act)
When someone we know is no longer able to look after themselves…
Family members, social workers and medical practitioners often find themselves in a situation where their relative, client or patient has lost the capacity to make decisions relating to that person’s welfare, property and finances due to getting older.
Also, members of families with a child that has an intellectual disability inevitably face the obstacle of being able to continue to make decisions for their child when their child reaches the age of 18 and is seen as an adult in the eyes of the law.
Who does the Act protect?
The Protection of Property and Personal Rights Act 1988 (PPPR Act) protects those who are over the age of 18; and:
Have an intellectual disability; or
are mentally ill; or
who have suffered a severe head injury and are unable to make decisions for themselves; and
The PPPR Act also applies to those who are elderly and have become mentally incapacitated.
How can the Law help?
The PPPR Act 1988 provides the Family Court with the jurisdiction to make Orders that appoint a suitable person who is given authority by the Court. This enables the appointed person to make decisions in respect of the person who unable to do so themselves in relation to their welfare, property and financial matters.
Let us assist you. If you need assistance in applying to the Family Court for PPPR Orders that relate to a relative, client or patient we are here to help. If you do not have funds or access to money or are on a benefit you may well be entitled to a grant of legal aid and we can walk you through this process.
Call us at Adrianne McLean, Barrister on 09 869 2097, to make an appointment.
You or your parents may be looking into moving into a retirement home. There are documents that must legally be given to you from the operator. These are governed by s30 of the Retirement Villages Act 2003. There are also other documents that are available on request. Your lawyer can assist you and your family with all the paperwork to make your decision to move as easy and as straightforward as possible.
But in the meantime if this is more of a distant reality at this time then you can be better prepared by doing some initial research. I would recommend you look at the Retirement Commission website – http://www.cffc.org.nz/what-we-do/retirement-villages/. This includes a booklet called “Thinking of Living in a Retirement Village?
There are other website available for checking and working out if a Retirement Village is right for you if you wish to take it further and require legal advice then please contact our team on (09) 869 2097.
Struggling with discipling your child(ren) “these days”? It is always a good idea to invest some time and money to get professional advice on how to discipline appropriately. Get smarter on discipline. Your children will thank you for it later.
Domestic Violence: Grab a plate and throw it to the ground. Did it break? Yes. Now say sorry to it. Sorry. Did it go back to the way it was? No. Now do you understand?
For those of you that know you will have difficulty dealing with your partner as there may be a history of mental illness (diagnosed or undiagnosed) or domestic violence it is even more important you speak with a lawyer as you may need urgent assistance.
There is help out there you just have to reach out and take the first steps. Do not let someone break you or continue to break you what is worse and is more damaging is when you let your children witness this. The behaviour of this person is outside of your control it is best to see a lawyer for advice and if necessary to file in Court.
For those that may be living with a person with an unchecked mental illness and/or domestic violence it is very important you seek legal advice. We offer a one off consultation or offer a phone consultation on what to do. If you do not have funds or access to money or are on a benefit you may well be entitled to a grant of legal aid and we can walk you through this process.
The important thing to realise is that you are not alone you do not have to live with violence. There are people out there that can help you start over again.
Domestic Violence can affect people from all walks of life. Statistics show that woman are more often the victims but the reality is that men are too. Often people are blinded by love, fear or insecurity to notice the effect on their own life and sometimes their children’s lives.
Many people get told they will lose their child/ren if they tell or that they will be thrown out into the street with nothing.
A threat to take the child/ren away from you is a common one too.
As a lawyer I see many people who do not even know they are being abused. Ask yourself am I an equal partner financially in this relationship or is someone else always controlling what I spend. Ask yourself do I get accused of looking and flirting with someone else?
Do I get called names that make me feel bad, do I get yelled at in front of my children and/or friends? Am I run down as being clumsy, no good, and useless? Does my partner keep secrets from me? Like how much they earn? Or what their money spent on? If this is the case, alarm bells should be going off by now.
These are all forms of domestic violence and you need to talk to domestic violence centre or agency and it would be worthwhile talking with a lawyer to see what your rights are.
Domestic violence is defined by the Domestic Violence Act 1995 as including:
Physical abuse: behaviours like punching, slapping or kicking a person.
Sexual abuse: any unwanted sexual contact/touching.
Psychological abuse: for example stalking a person, damaging property, threatening violence or abuse, harassing, scaring, or intimidating a person. It can include trying to control someone’s life by constantly humiliating them or controlling someone’s money, time, car or contact with friends and family as a way of having power over them. If the respondent allows any children to witness the domestic violence this is psychological abuse against them.
A person who wants protection from domestic violence can apply for a protection order through the Family Court. The Family Court can make temporary protection order, usually on the same day, if the situation is urgent. If the application is not urgent, the respondent will have the opportunity to tell their side of the story before the Family Court makes a final protection order. AKM Law can support you through this process.
Do not let the idea of finances scare you off knowing when it comes to knowing what your rights are. We are legal aid providers and in many instances you may be entitled to a grant of legal aid.
I was recently interviewed by Seven Sharp on TV one they wanted a lawyers perspective on prenuptial or as most lawyers refer to them “section 21 Agreements.”
Please watch video by clicking the image below or this link www.tvnz.co.nz
They are called this as it is section 21 of the Property (Relationships) Act 1976 that allows a couple to contract out of the Act. The net effect being the presumption of a notional half share of relationship property would not occur on the breakdown of a relationship.
Prenuptial or S21 Agreements can be done at any time during a relationship and this surprised the people I was talking with. They believed you could only do this before the three year point of a de facto relationship or before marriage.
But in fact you can have a lawyer draft such an agreement at the beginning, during or at the end. An Agreement drafted during a relationship is often because you inherited something from your family’s estate and wish for it to remain your separate property. At the end of your relationship, if you can come to agreement between you on how you wish to settle your matters, this can be recorded in a prenuptial or s21 Agreement.
What surprised me the most was the question that came up over again which was “how do I tell someone I want to do this?”
This really surprised me. The majority of people I spoke with said the biggest stumbling block for them would be the conversation and how to broach it.
I would have thought once you get naked with someone then you can broach any subject but clearly I was wrong.
So to answer this I would say that you talk about this issue at the beginning of your relationship when you know you are serious about this person. Even if you do not have any assets at that time and many of you won’t, talk about what you would do if Aunty Mavis left you the beach house in Eketahuna and what you would like to see happen with that property. It may be you would want a prenuptial or S21 as you have a strong emotional attachment and could not bear to part with it as relationship property should you break up.
You can try on as many different scenarios as you like. Once you start talking about it, it should be like any conversation you have with your partner such as where you want to live, what travelling you want to do and how many children you are going to have and so forth.
There is nothing wrong with identifying something that has value to you that you would not want to part with should your relationship end.
The issues occur when these conversations are not had and from my practice issues come about in the following ways.
You have been together for several years and have a child together and your partner (often several days before a marriage) slaps down an Agreement and demands you sign it. Sadly, I have seen this a lot and while I would like to tell you to put your Nike’s on and run for the hills I know you won’t. So all I can say is get good independent legal advice and think carefully about what this means to your relationship and more importantly the contributions you have made thus far and will continue to make.
You have been in a long term relationship (similar to the scenario above) and you are being asked to sign a prenuptial or s21. It is not unexpected you are aware your partner is bringing more into the relationship financially and this has been discussed in a general way between you. Again, you need to get independent legal advice. You also need to be aware before signing any Agreement that your contribution is seen as equally important to the relationship even if you have taken time out of the work force to raise children and run the home. That is if you were to break up and there was no Agreement you would be entitled to your notional half share of all relationship property. Therefore, it is not just about the money one person is earning or what they bought in at the start of the relationship.
Save yourself the angst and possible damage to your relationship and talk about these issues at the beginning. You know when you are serious about someone it may be on day three or day three thousand but there comes that point in time when you know you want to be with the person and that is time to start talking.
I was also frequently asked
“ but if the person tells me they would never take what they know is my separate property because they know how much it means to me, is that enough to protect it if we should break up?”