Newsletter Autumn 2019 2019-02-26T10:34:12+00:00

ARL Lawyers welcomes Teressa Cho to the team

We are delighted to have Teressa Cho join our Family Law Team.

Teressa graduated from Victoria University of Wellington with an LLB and BSc (major in psychology) in 2014 and went on to complete a post-graduate certificate in Children’s issues at Otago University in 2017.

Teressa is a member of Wellington Family Court Association, Family Law Section of the New Zealand Law Society and a volunteer at the Wellington and Hutt Valley Community Law Centre.

She brings empathy and compassion to her Family Law work. She is a wonderful addition to our team. You can contact Teressa here.

Sexual Harassment in the Workplace

The Employment Relations Act 2000 (ERA) and the Human Rights Act 1993 (HRA) cover the in-depth processes and remedies for sexual harassment in the workplace for New Zealand employees.

If you are subject to sexual harassment in the workplace, you can seek to have this resolved either formally or informally. In either case, we suggest that if you are faced with the situation where you are sexually harassed, try to record (as soon as possible after the incident) a detailed account of times, dates, what was said and what was done.

If you wish to raise a personal grievance or complaint against your employer or colleague for sexual harassment under the ERA, you have a period of 90 days from the incident in which to raise a complaint (mitigating circumstances can sometimes be taken into consideration for any delays).

If you wish to raise a complaint under the HRA with the Human Rights Commission, you have a period of 12 months from the incident to do so.

Formal Resolution

If you wish to resolve the matter formally, some workplaces have specific processes in place to deal with these situations and you should first seek out what, if any, process is used within your workplace. If nothing is available, you should advise your employer, manager, or HR manager in writing of the incident and keep a copy of the complaint for your records. If your employer is the subject of your complaint, then you may seek out an HR manager, supervisor, union representative or lawyer.

Your employer is legally required to investigate the allegations. If they find the allegations to be true, they are required to take whatever steps will prevent it from happening again, which can be, but is not limited to, termination of employment or legal action. If the harassment takes place again, and practical steps were not taken, the employer can be held liable for their lack of action.

As part of the investigations into any potential sexual harassment, the employer must advise the harasser that suspension or termination of employment is a possibility, offering them first a chance to provide their input and side of the story prior to any decision being made.

Depending on the severity of the harassment and the input provided by the alleged harasser, victim or witnesses, the harasser may be given written notice to attend a disciplinary meeting or mediation. Such notice will set out the accusations made against them and pending any proof to disrepute the claims, the proposed punishments for their actions.

If your employer is the subject of your complaint then their actions will be investigated by an HR manager, union representative, manager or lawyer. Depending on how you would like to proceed (i.e. remain in the job or not) and the severity of the harassment, you may look to seek compensation, means of future prevention and/or an apology from your employer, as forms of settlement.

If mediation is called, it can either be face-to-face between the parties with a mediator present, or the mediator can move in between each side with their comments, which may be more appropriate if there is a power imbalance or fear. If mediation does not resolve the dispute, the employee can take the dispute to the Director of the Office of Human Rights Proceedings, Human Rights Review Tribunal, or their lawyer to file legal proceedings.

Informal Resolution

If you seek to deal with the harassment informally, you could ask your supervisor or employer to assist in an informal capacity. Your manager may have suggested means of solving the matter, which may include a supervised meeting or verbal warning. Your manager would need to be aware of all the facts and have to give the alleged harasser a chance to provide their side of the story and have input before they provide any interference.

If the harassment continues or nothing is done then formal processes should be followed.

Sexual harassment is evident in all types of work environments and can have significant effects on the victims. If you are a victim of sexual harassment or have been accused of sexually harassing a colleague, contact Ben Sheehan, Sharee Cavanaugh or Joshua Pietras immediately for further assistance.

Meth Contaminated Properties

A property that has been used to manufacture methamphetamine (meth), or has had meth smoked inside, can be contaminated with meth residue that can be present on the surfaces inside the property.

A property used for manufacturing this illicit drug has different health implications than a property where the drug was only smoked. The manufacturing process potentially involves additional hazardous chemicals. The most common method used in New Zealand does not involve solvents as used in other countries, and instead of the traditional glass set up, a sealed pressure vessel, which minimises the release of associated fumes and contaminants, is more commonly used.

The level of residue on walls, flooring and other surfaces, for a property to be deemed contaminated in New Zealand, was previously set at 0.5 micrograms per 100cm2. There is currently no evidence that contamination at this level has any associated health risks for people living in the contaminated property. A report published in May 2018 advised that the threshold for initial testing should be raised to 15mcg per 100cm2. This level incorporates a safety margin, with models used being deliberately conservative in their assumptions. Housing New Zealand adopted these new guide levels, which significantly reduced the number of properties in New Zealand that were deemed to be contaminated.

Rapid initial screening tests that measure methamphetamine at very low levels (0.5 to 1.5mcg per 100cm2) can be purchased online and carried out by any homeowner. They can indicate if any rooms in the property require further investigation. Professional testing can cost up to $2,500 for a three-bedroom home. These tests measure methamphetamine residue at levels higher than 15mcg per 100cm2, which can indicate the property was used for manufacturing the drug.

If you are a landlord, it is recommended you check whether your insurance company has any policies on testing. While the implications for the insurance industry of meth-contaminated properties are less certain than the health implications, following your insurer’s advice will limit your liability.

If a property is found to be contaminated with meth at high levels, remediation in the form of cleaning the property and all porous materials and items such as furnishings and carpet is warranted. Meth residue does dissipate over time so airing out the property and cleaning walls and furnishings with any standard detergent can be sufficient in some situations. Detection of low levels cannot definitively rule out the property was used for manufacturing, so it may be prudent to clean the property as a precautionary measure if there is a reason to suspect it may have previously been used to manufacture meth.

There is a very low chance that your property, or a property you are interested in purchasing, has been used to manufacture meth. Out of 1,600 public sector properties tested, only 1% of the more than 13,000 swab samples revealed high enough levels that could indicate a property was used to manufacture meth. For further information, contact Jason Taylor or Luke Havler

Hague Convention

The Hague Convention (HC) is the international law that governs the abduction of children between countries. It regulates how countries interact with each other when a child has been unlawfully taken to another country, and its objectives include securing the prompt return of a child wrongfully taken from a country to ensure the rights of parents or guardians.

The HC is only enforceable in countries that are party to it. This means that if a child was unlawfully taken to a country that was a party to the HC, the immediate return of the child or children is required. If the country is not party to the HC, the process of returning the child becomes complicated and sometimes impossible.

In NZ the HC is most commonly used when parents separate and one parent has moved to another country with the child or children without the other parent’s consent.

When a child is taken from NZ, an application for their return must be made. The application must satisfy the Court that:

          • The country the child was taken to is a contracting state to the HC
          • The removal breaches the applicant’s rights of care of, or contact with, the child
          • The applicant was exercising their right of care and/or contact at the time of the removal
          • The child must have been habitually resident in New Zealand immediately before removal.

When a parent intends to take a child out of New Zealand permanently and the other parent does not consent, the opposing parent can apply to the family court to prevent them from leaving the country until a decision has been made.

The decision to allow a child to move to another country falls to the Family Court, which takes a holistic approach. This means that all facts are relevant to making the decision, with its main concern being the welfare and best interests of the child or children. The parent who has taken or intends on taking the child must file a defence that includes grounds on which it is in the best interest of the child to leave New Zealand. The parent can rely on a number of defences such as:

  • The remaining parent gave their consent
  • The remaining parent was/is not exercising their rights of care and/or contact
  • There is a grave risk (physical and/or psychological) to the child if they remained in New Zealand
  • The child would be put in an intolerable position
  • The child objects to staying in New Zealand, or
  • The move to another country happened 1 year ago or more and the child is now settled and socially integrated into their new environment

For further information or assistance with Hague Convention matters, contact Sarah Morrison or Teressa Cho.

 

 

Protection of Personal and Property Rights Act 1988 (PPPR)

The purpose of the PPPR is to protect the personal and property rights of people who are not capable of managing their own affairs. This includes, but is not limited to, someone who is mentally ill, has an intellectual disability, or a brain injury that affects their mental capacity (referred to as the Subject Person in the legislation).

There are numerous orders that can be granted under the PPPR, but the most common are, an Order for Appointment of Welfare Guardian and an Order to Administer Property or be appointed a Property Manager.

An Order for Appointment of Welfare Guardian relates to the welfare and care of an incapacitated person. A person will apply to the Family Court and if the application is successful they become a Welfare Guardian. The Welfare Guardian will make decisions for the Subject Person in relation to their personal care, which might include where they live, what medical attention they need and who cares for them.

An Order to Administer Property or be appointed as a Property Manager relates to the property of the Subject Person. A person will apply to the Family Court and if the application is successful they become a Property Administrator. The Property Administrator will make decisions for the Subject Person in relation to their property, which might include managing any benefit received by the Subject Person and making payments on their behalf. If any item of property is worth more than $5,000 or the total income received annually is more than $20,000, the person appointed is called a Property Manager.

To start the application process, the following documents must be completed:

  • Application for Appointment of Property Administrator or Manager and/or Application for Appointment of Welfare Guardian
  • Affidavit in support of application(s)
  • Information Sheet for the Family Court
  • A report from the Subject Person’s medical practitioner
  • Written consent from family members.

The documents must be filed in the Family Court closest to where the Subject Person lives. The Court will arrange service of the documents on relevant parties, who can oppose the application within 21 days from the date of service. A lawyer is appointed for the Subject Person (paid for by the Court) to help them understand the application to the best of their ability (if possible). The lawyer then writes a report making recommendations to the Court, for example, if further medical evidence is necessary or if other family members should be consulted, and whether the orders should be granted.

Once the report has been completed, if the application is not opposed a Judge will decide if an order should be made, or whether further information is required. Sometimes a hearing is required before a Judge to progress matters, or for the Court to determine whether opposition to the application is warranted.

For further information and assistance in making an application under the PPPR, contact Sarah Morrison

 

In brief: How can you requisition a title?

Under an agreement for sale and purchase of land, a requisition of title is a request made by the purchaser to the vendor to ‘make good’ any defects to the title of a property before settlement. The purchaser may have a right to requisition the title where there is a serious defect or encumbrance that is not notified or included in the agreement. The purchaser may requisition the title within 10 working days from the date of the agreement. If a requisition is not made within this period, the purchaser is deemed to have accepted the title. Once the requisition is raised, the vendor can remove the defect before settlement or if the vendor does not comply with the requisition, the purchaser can cancel the agreement or elect to proceed regardless. For further advice and assistance, contact Ian Avison or Rebecca Dickie.