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Saturday, November 4, 2023

Family Court Judge as advocate for defendant

Unusual people are appointed to be Judges in the Family Court in New Zealand. 

Barristers appointed to represent children in the Family Court may at times misunderstand the role.

The New Zealand Family Court made an order prohibiting two Australian children from leaving New Zealand when they arrived in the country for a holiday with their mother.  This prevents them from visiting their relatives in Australia.

Shortly after, the New Zealand Family Court than gave custody of the children to the former partner of their Australian mother.

The children recently alleged that while in the day-today-care of their mother's former partner he made a threat to kill them.

The former partner, in a sworn affidavit, gave an account of the alleged incident that was totally inconsistent with the allegation of the victims. He described his conduct as a calm conversation with the victims about a scene in an episode of "The Simpsons" that he and the victims were watching together.

The criminal offence the victims alleged is defined in the New Zealand Crimes Act 1961:

306 Threatening to kill or do grievous bodily harm
(1) Every one is liable to imprisonment for a term not exceeding 7 years who—
(a) threatens to kill or do grievous bodily harm to any person; or
(b) sends or causes to be received, knowing the contents thereof, any letter or writing containing any threat to kill or do grievous bodily harm to any person.

A web site for the Courts of New Zealand gives examples of instructions to juries on what must be proven to return a verdict of guilty in a trial of someone charged with any chosen offence. The example for a defendant charged with making a threat to kill or do grievous bodily harm is here

There are three elements to be proven for a defendant to be found guilty of the charge: 

This question trail assumes the following scenario: On 1 August 2018, Mr Smith is alleged to have pointed his finger at Ms Jones and said: “Bang you’re dead”.

The Crown must prove each element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove each element beyond reasonable doubt. That is called the standard of proof. It means you must be sure that each element is proved.

1.    Are you sure that on 1 August 2018, Mr Smith pointed his finger at Ms Jones and said: “Bang you’re dead”?
If no, find Mr Smith not guilty.
If yes, go to question two.
2.    Are you sure that, by pointing his finger at Ms Jones and saying “Bang you’re dead”, Mr Smith threatened to kill or inflict grievous bodily harm against Ms Jones?
“Grievous bodily harm” is really serious harm interfering with health or human function.
If no, find Mr Smith not guilty.
If yes, go to question three.
3.    Are you sure that Mr Smith intended Ms Jones to take the threat seriously?
If no, find Mr Smith not guilty.
If yes, find Mr Smith guilty.

This description of the elements of the offence in New Zealand differs from the equivalent offence in Australian jurisdictions.

For instance, in the Australian Capital Territory, section 30 of its Crimes Act 1900 defines both the offence and the elements to be proven: 

It is an offence to make a threat to another person to kill them or any third party, intending them to fear the threat will be carried out or being reckless to their fear. The threat must be in circumstances where a reasonable person would fear it would be carried out.
Maximum penalty: imprisonment for 10 years.

In the Family Court in New Zealand a social worker gave evidence about an interview she observed between an investigator and the children, the victims of the alleged offence, and on a report prepared by a psychologist who also interviewed the children. 

  • The questions put to this social worker seem related to what the Crown must establish for a person to be found guilty of making a threat to kill to or do grievous bodily harm. 
  • The witness was asked repeated leading questions for evidence that in a criminal trial could be reasonably expected to result in finding the defendant was not guilty. 
  • The hearsay evidence given by this witness was contrary to the written report of the psychologist who had spoken to the victims. 
  • In one exchange, the witness was asked the same question three times. On the first two occasions the answers given by the witness were not transcribed. The notes of evidence in the places where these unwanted answers should be reads "no audible answer". 
  • Considering the same question was repeated three times, it is quite likely that "not the answer that was wanted" more accurately describes those answers.

Following is an extract from a document "Notes of Evidence Taken before Judge A G Mahon" in the Family Court in New Zealand. 

Three of the people taking part were: 

  • Charles Boon - A regional litigation manager from Oranga Tamariki — the New Zealand government department responsible for the well-being of children, 
  • Johan Niemand - A New Zealand barrister appointed by the the Family Court to represent two Australian children, and
  • Antony Mahon - A New Zealand Family Court Judge, a director of some New Zealand registered companies, and a property investor. 


Charles Boon, Johan Niemand and Antony Mahon

MR BOON: Good afternoon, Mrs Begam, could I just ask if you’d please state your full name for the Court? 

MS BEGAM: Naseza Shareen Begam.

MR BOON: And are you a social worker for Oranga Tamariki [“OT”, the New Zealand government department responsible for the well-being of children], is that right?

MS BEGAM: Correct, yes.

MR BOON: And you’re the allocated social worker for these two children …, is that correct?



MR BOON: And so again Ms Begam, would it be helpful in your opinion again if there was that slight extension to the guardianship order that allowed the Chief Executive [of OT] to, in the exceptional circumstances, approve that without having to go through the court because there are some delays with the court process?

MS BEGAM: Yes. Yes, I believe so, this would be in the children’s best interests.

MR BOON: In terms of the contact reports, what – if you just maybe generally say how the contact reports have been in terms of Ms Y’s contact with the children?

MS BEGAM: As per the contact reports, the contact is going really well. No issues identified, no concerns raised by the contact supervisor. Things are really child-focussed. Ms Y talks about positive things with the children. She encourages them to do their best. So nothing of any concerning nature has been reported so far, your Honour.

MR BOON: And did you supervise some of those yourself?

MS BEGAM: Yes, I did. I think I did a few. And it went really well. I don't have any issues.


MS X: In this particular report Dr Mona states:

“Both kids displayed symptoms of suppressing their emotions. When I enquired with them [the eldest] said,

‘We are fine. If we talk about our feelings, we will be in trouble.’

It was explained to both kids they would not be in any trouble, however they found it hard to believe. I asked them in every session if they felt safe in their home. They both confirmed they felt safe and rated this 8 out of 10, indicating a strong feeling of being safe. In our last appointment, [the youngest] mentioned they had some visitors from OT at school. When I questioned what that was about, [the youngest] said,

‘Dad threatened to strangle us. I was scared so I told Mum.’

[The eldest] also confirmed what his sister reported.”

So with regards to this particular disclosure of the children stating that Mr X had threatened to strangle them, you’ve sworn to the court that yourself and Eunice Dunn appeared at school for the children?

MS BEGAM: Correct. 

MR BOON: And have there been any other concerns? In relation to the contact have there been any concerns in terms of – you’ve said that it’s gone well, but any concerns in terms of things said by either Ms Y or Mr X?

MS BEGAM: In terms of contact?

MR BOON: In terms of during contact.

MS BEGAM: Sorry, I don't understand the question. Like –

HIS HONOUR: Well I guess I directed that contact [between the children and Ms Y] was to be supervised, and that supervision wasn’t for physical safety, it was for emotional psychological safety – and that’s the right phrase. And what I need to – I get to know, you’ve raised the fact that there’d be no concerns raised during contact, the positive conversations between the children and their mother, and you know a child-focussed approach by Ms Y to the children. Has there been anything said that has concerned you during that contact, at all?


HIS HONOUR: By the children, or by Ms Y?

MS BEGAM: By the children, yes. So when I supervised a few contacts when I also transported them to and from the venue. So after contact they would have like questions for me, for example, 

“Why is the contact supervised?” 

“Why can’t I be with Mum?” 

“Why can’t we go back to the previous arrangement of shared care?” 


“Am I able to please speak to the presiding judge and express my opinions?” 

and, yeah, so those are the things that the children have raised with me every time I see them.

HIS HONOUR: And what have your responses to the children been?

MS BEGAM: My responses have been that Mum and Dad are going through some difficult phase currently, so the judge has intervened to help in that space. And we will continue to have conversations and see where this leads, because I have not been able to give them a definite answer. Yeah. But every time I see them, they have these questions for me, always.


MR NIEMAND: I want to just ask you when Mr X talks about this in his affidavit, and he answers it – I'll read you just a paragraph that relates to that. He talks about the incident, a discussion with the children having seen a clip of the Simpsons episode with Homer strangling Bart and naturally asked about it, Mr X says he explained to the children: 

“This isn't suitable…” 

He explained it wasn’t a child-suitable programme. He says there was a discussion about stress, anger and emotions, how these can build up and how some people react and Mr X saying: 

“Sometimes all they want to do us hug their kids all the time and sometimes they just want to strangle them.” 

Which he says was in a light-hearted way. He says he then followed it up and said: 

“But I just want to hug you. There were hugs and kisses,” 

and he realises that perhaps that was not the wisest comment to make. That’s the gist of his affidavit response. Are you able to tell the Court whether that is consistent with your understanding of the discussion that Mr X had with Ms Dunn?

MS BEGAM: Um, no, your Honour. When Ms Dunn called – so this is a discussion I had with Ms Dunn, as per Ms Dunn when she called Mr X to discuss the concerns and to notify him that we have seen the children at school, Mr Dunn’s response was [Mr X gave] no response at all. He didn’t comment on the two children having confirmed that he said to them that: 

“I feel like strangling you.” 

So there was no comment at all from Mr X. 


MR NIEMAND: Looking at what – because I appreciate what you reported in terms of what the children said, it’s relaying the conversation, it’s not word for word what the children said, but if you think back about what the children reported about the incident compared to Mr X’s affidavit, are those two compatible, I suppose? Is it possible that what Mr X said happened based on how the children relayed it, in your view?

MS BEGAM: I don't think so. Because when we spoke with the children, so we saw one after the other, separately, and they were very clear, I could see their body language, could see the emotions. [The youngest] was, like, she was quite emotional, about to cry, so we had to change the subject and, you know, divert attention. Both of them were very consistent with what happened, so what they said is that they were playing in the lounge area. Mr X has allocated some chores for them to do. He came back to see they haven’t done the chores. Mr X got upset and said to them that: 

“I feel like strangling you.” 

And as per them, Mr X appeared angry and upset and they felt upset as well. They did not feel unsafe, but they felt upset.


  1. This reveals that Mr X gave misleading evidence in an affidavit to conceal that he had made a threat to strangle the children. 
  2. The oral evidence of Ms Begam, that Mr X said "I feel like strangling you", was inconsistent with the written evidence in the report of the psychologist, Dr Mona: "[The youngest] said, ‘Dad threatened to strangle us. I was scared so I told Mum.’ [The eldest] also confirmed what his sister reported.” 
  3. This is sufficient evidence to charge that Mr X with threatening to kill or do grievous bodily harm.
  4. The final questions below from Mr Niemand and Judge Mahon focus on eliciting hearsay evidence, contrary to what the psychologist reported in writing, that the children did not believe the threat may be carried out, or if they did not understand what was meant by the threat.

MR NIEMAND: Do I take it from that that your sense from your discussion with them was that it was I guess a comment made by Mr X as opposed to Mr X threatening to strangle them?

MS BEGAM: (no audible answer 15:38:49).

MR NIEMAND: Hold on, let me just rephrase that. That the children interpreted that as a comment made by Mr X in frustration as opposed to making a threat that he was going to physically strangle them?

MS BEGAM: (no audible answer 15:39:06).

MR NIEMAND: Do you want me to start the question again?

MS BEGAM: Yes please.

MR NIEMAND: Sorry. Your sense from your discussion with the children, which is how I understand your answer, is it that they interpreted the comment as something that Mr X said in frustration as opposed to a comment made by Mr X suggesting that he was going to go over there and physically throttle them?

MS BEGAM: Correct, yes.

HIS HONOUR: So the link between (inaudible 15:39:37) the comments made and the fact they felt safe, do you imply from that response from both children, they didn’t think he was going to hurt them?

MS BEGAM: Correct, your Honour.

HIS HONOUR: They didn’t think they were at physical risk from him?

MS BEGAM: Correct.

HIS HONOUR: It was a father who was frustrated and those were the words he used, so they report those words?


HIS HONOUR: Do you think they understand what the word “strangle” means? Did you find out whether they did?

MS BEGAM: We did, your Honour. So [the youngest’s] – [both children’s] explanation was to choke someone. That was the explanation.

HIS HONOUR: So they understood the word but they didn’t think it would lead to action, so it wasn’t a threat that he was going to do it, it was a phrase used in frustration because they knew he was annoyed at them?

MS BEGAM: Correct.

MR NIEMAND: So for clarification, the context – I guess I just want to make sure I understand it – wouldn’t be unlike a child for example saying: 

“Oh, if I don’t do my homework my mum’s going to,” – “If I don’t clean my room, Mum’s going to kill me,” 

kind of that type of comment?


MR NIEMAND: Without suggesting that that is actually what will happen, do you understand what I mean by that?

MS BEGAM: Yes, I do, but I think that would be in a different space. Because what Mr X stated to the children obviously had an impact on them because of their presentation, the body language, they were quite upset, very upset indeed. So I think that’s different to what I was a witness to when we interviewed the children.