Mr P was instructed by a client to seek a without notice application for a parenting order (the application). The client, accompanied by a support person, advised Mr P that Oranga Tamariki was involved in the matter and had obtained “some kind of interim order” which they described as “safety orders” to prevent contact with the children’s father pending investigation into allegations of abuse. Mr P prepared the application and supporting affidavit which referred to the client’s belief that there were interim orders in place. Prior to filing, Mr P inquired about the existence of any orders with the Family Court Registry who informed him by email that there was no application from Oranga Tamariki in the court system that related to the parties. Mr P then filed the application without any reference to the information received from the Registry and the parenting orders were issued that day. It later came to light that the error concerning the existence of orders lay with the very new social worker, who had in place a “safety plan”, which the client relayed to Mr P as a “safety order”. 

The Standards Committee's case was that Mr P breached his duty of utmost candour by failing to ensure his email exchange with the Registrar was before the Court when it determined the without notice application. Mr P’s position was that his client believed that safety orders were in place, and that the information received from the Registry did not rule this out as there may be other reasons why the orders were not showing in the court system. He considered that, given the potential risk of harm to the children, an urgent response was necessary. He also assumed his email exchange with the Registrar would be made available to the Judge alongside the application. Mr P accepted however, that it was an error on his part to leave the responsibility of ensuring the full picture was put to the Judge, to the Registry. 

In considering liability, the Tribunal noted that the duty of utmost candour to the Court is a fundamental obligation which underpins the relationship of trust between the bench and the bar noting that this “obligation is crucial when an order is being sought based on the information provided by one party or ‘side’ only, as was the case here. That is why the relevant rules require that counsel certify having advised the client to disclose “...all relevant circumstances...” even if adverse, and that counsel has made “reasonable enquires of the applicant” to ensure this occurs.” The Tribunal considered Mr P had thoroughly prepared the application based on the information available to him at that time and that it was reasonable for him to assume that the emails with the Registrar would be put before the Judge. The Tribunal determined Mr P had erred by failing to direct the Judge’s attention to the email exchange but held that his level of error did not require a disciplinary response. The Tribunal dismissed the charges and made orders for non-publication of the lawyer’s and other parties names.