By Jeremy Wilkinson of 
Photo: ikiryo/123RF
"The Australians are not as civilised as us, they're not as evolved as us."
Those are the words of a New Zealand lawyer who is fighting for the custody of his stepdaughter through the Australian courts.
He has also accused a judge of giving him a raw deal because they didn't like his accent.
"New Zealanders there do not get a fair deal," he told a tribunal in Wellington on Tuesday afternoon where he's facing nine charges for his conduct in courtrooms across the ditch and at home.
"Australia has a different attitude to what is fair in court."
The man is a government employee and lawyer and lives in New Zealand with his wife whom he was helping fight a parenting order in the Australian courts for custody of her daughter against the girl's biological father.
It's alleged that while fighting for custody of his young stepdaughter he wasted that court's time by filing hundreds of pages of evidence in a case he later conceded was unlikely to be successful, questioned the competency of the judge, attacked the reputation of opposing counsel and mislead the Family Court in NZ.
On Tuesday, a panel of the Lawyers and Conveyancers Disciplinary Tribunal held a hearing into the man's alleged conduct. Neither he nor his family can be named due to automatic suppression orders from the Family Court.
"The way they conduct advocacy in Australia, particularly in Victoria, is very different to NZ, it's like it's the 1980s," he claimed.
"I was treated with disdain and contempt right the way through."
While the man admits that some of the ways he interacted with the court were not acceptable, he maintains that he had no choice.
"There was no one else coming in to save the day," he said, "I was way out of my depth but I had no choice."
According to the charges the man and his wife have been engaged in litigation in the Australian courts for custody of his stepdaughter since 2014.
The first charge alleges that he engaged in vexatious proceedings and wasted the Federal Court and Family Court of Australia's time by filing hundreds of pages of evidence and filed repeated appeals that had no hope of success and were an abuse of process.
He then failed to pay the legal costs associated with those failed appeals for a parenting order totalling some $5000.
The man appealed those costs and at that hearing said the presiding judge had "sought to evade her judicial obligations" and that instead of doing her duty had "shot the messenger".
The standards committee prosecuting the man on behalf of the New Zealand Law Society claims that making a serious allegation against a judge amounted to disgraceful conduct.
When the man refused to pay legal costs in Australia his stepdaughter's birth father applied to lodge the case in New Zealand, making the debt enforceable on home soil.
It's alleged he then misled the Family Court in New Zealand about how matters in the Australian courts had unfolded.
He then claimed that his stepdaughter's biological father had breached court orders, concealed relevant information and was attempting to wear him and his wife down through "financial attrition".
There was no evidence for any of these allegations, according to the standards committee.
"The practitioner's cumulative conduct forms a pattern of abusive and inappropriate litigation…" which meant he is not a fit and proper person to be a lawyer, the charges state.
At the moment the man is a public servant for the New Zealand Government but has recently let his practising certificate to work as a lawyer lapse.
The man told the tribunal his experience with the legal system in Australia had dissuaded him from ever being a member of the legal profession again.
Standards Committee lawyer Ben Finn asked the man whether he thought calling a judge lazy was disrespectful.
"She is rude, abrasive, aggressive and an absolute bully," the man said in response, referring to an Australian judge presiding over his case.
"I don't cave into bullies."
Finn said that judges were not immune to criticism but there were formal channels in which this could and should be done.
"Something said to your friends at the pub is not something that should be committed to paper," he said.
"There is a line and it can be crossed."
The man conceded that his comments would not have been appropriate if he'd been acting for a client or in a professional capacity.
However, his primary argument is that he was acting entirely in a personal capacity despite being a registered lawyer in New Zealand.
"Lawyers are human beings and when they're placed in a stressful situation they say things that aren't perfect," he said.
"If I'd engaged an Australian lawyer who was familiar with the Australian zeitgeist then I might have been more successful, but I did not have the money. Instead, I just had little old me."
In his submissions, Finn said that while not technically acting for a client the man was still a practising lawyer and his conduct reflected poorly on the profession as a whole.
"How many heats of the moment without apology start to look like deliberate action?" he asked.
"We're all under pressure, we're all finding it hard," and said that acting with civility and restraint was just part of the job.
Finn said the man's conduct was connected to his work as a lawyer and he wasn't "simply acting as his own lawyer" and that he referenced his own legal experience before the court.
The tribunal questioned what other options the man had other than to represent himself given the expense of hiring a lawyer in a foreign jurisdiction.
In his submissions to the tribunal the man referenced the case of "Mr U" who was another lawyer acting in the Family Court who called the judge and opposing counsel "ignorant women" in a 10-page memorandum.
Just last week the tribunal opted to suspend Mr U's practising licence for six months.
"Mr U unlike myself was in New Zealand, I was in Australia as a layperson. I'm not on the same footing as Australian counsel," he said.
"My competence in the Australian jurisdiction has nothing to do with my competence in the New Zealand jurisdiction."
The tribunal will issue its finding on whether the man is guilty of the charges in writing at a later date.
- This story originally appeared in the NZ Herald.
