Qualifications
- LLB/BHSc, University of Auckland 2016
- Admitted to the Bar in New Zealand 2017
Contact
- DDI: +64 7 571 3830
- M: +64 21 072 1231
- E: abigail.pearce@hobec.co.nz
Abigail is an Associate in Holland Beckett’s litigation team, and advises her clients on various family, employment and medicolegal matters.
Abigail is experienced in advising on a wide range of family law issues including:
- Relationship property disputes
- Separation and relationship property agreements
- Contracting out (prenuptial) agreements
- Care of children matters
- Guardianship issues
- Family violence matters
- Dissolution of marriage (divorce)
- Applications under the Protection of Personal and Property Rights Act 1988 (PPPR)
- Estate matters
Abigail also has specialist knowledge of the medicolegal sphere. She has worked closely with healthcare providers such as District Health Boards and private medical facilities, as well as represented individual practitioners and healthcare consumers in various disputes relating to a wide range of issues including:
- Inquiries into professional competence and safety
- Employment law
- Patient complaints
- Compulsory assessment and treatment
- Matters involving registration authorities such as the Medical Council of New Zealand and Royal Australasian College of Surgeons
- Orders for treatment under the Protection of Property and Personal Rights (PPPR) Act
- Workplace health and safety
- Negligence issues
- ACC related matters (treatment injuries, earnings related compensation, suspension of entitlements, Work-Related Gradual Process (WRGP) claims and sensitive claims)
Abigail Pearce's Expertise
Abigail Pearce's News & Resources
An employee focused approach in a recent case involving dress codes
The Employment Relations Authority has recently found that an employer unjustifiably dismissed an employee after they refused to cover their newly dyed blue hair. Background The Employment Relations Authority (ERA) has ordered an employer to pay their former employee nearly $10,000 after she was summarily dismissed without notice for divisive behaviour and refusal to comply with its house rules. Ms Lummis was an 18 year old student when she began work at the Stokes Valley New World in August 2018. At the beginning of her employment she signed an individual employment agreement and a set of house rules. This was her first job. In 2019, Stokes Valley New World was sold to Shawz Group 2019 Limited. The new owners entered into new individual employment agreements with the existing staff. In November 2019, Ms Lummis signed a new employment agreement but the existing house rules were not replaced and continued to apply. In November 2020, Ms Lummis dyed her hair partially blue. When she started her next shift, she was asked to cover it with the company’s branded baseball cap which was available to staff as a part of the uniform, although for many positions was not mandatory. When Ms Lummis returned for her next scheduled shift, she forgot her hat. Ms Lummis informed management that she had forgotten it, and in any case it was not a requirement under the house rules. Because of Ms Lummis’ response, she was pulled aside by her manager mid-shift and in front of other colleagues. She was informed that refusing to wear a hat to cover her blue hair was “serious misconduct” which could result in disciplinary action or even dismissal. The employer relied on the fact that it was “commonly understood” that staff with “unnatural” hair colours had to be covered, despite this not being reflected in Ms Lummis’ employment agreement or the house rules. After an investigation meeting, the employer labelled Ms Lummis’ conduct as insubordinate, which could amount to serious misconduct with the chance of disciplinary action including dismissal. This was followed by a disciplinary meeting at which Ms Lummis stood her ground, maintaining that she was under no obligation to wear a hat to cover her hair. The employer claimed that her conduct was divisive, and she had undermined the employment relationship . She was then summarily dismissed for serious misconduct. Ms Lummis then filed a personal grievance for unjustified dismissal. ERA Decision The ERA found in favour of Ms Lummis finding the employer could not rely on “common knowledge” when attempting to assert a contractual requirement. There was no proper communication, with the employee being merely told to wear a hat without any explanation of the origin of the requirement. The 2018 house rules signed by Ms Lummis, which required that an employee’s hair, jewellery, and presentation was “in keeping with the professional image of the store”, was interpreted in favour of Ms Lummis, with the ERA finding that this rule did not extend to a requirement for an employee to cover their dyed hair. Additionally, Ms Lummis provided a specific reason why she acted the way she did (she believed there was no contractual requirement for her to wear a hat) and the ERA found that this was entirely reasonable in the circumstances. The ERA awarded Ms Lummis $7,000 for the hurt and humiliation she experienced and $3,000 for lost wages resulting from the summary dismissal. Where did the employer go wrong? While an open and deliberate failure to obey a lawful and reasonable order can justify disciplinary action by the employer, the employer needs to demonstrate that it has properly promulgated a lawful and reasonable order. It is clear in this case that Ms Lummis was asked by her employer to wear a hat, and that this constituted an order. However, it was determined that this order was not lawful and reasonable, taking into account the scope of Ms Lummis’ contractual obligations. The employer had an obligation to fully engage with Ms Lummis on this point, but did not do so. Additionally, Ms Lummis provided a specific reason why she acted the way she did (she believed there was no contractual requirement for her to wear a hat) and the employer failed to adequately consider this. How can employers avoid this? For workplace policies to be implemented effectively, there must be adequate consultation with the employee and any order or directive must be lawful and reasonable. It is best practice to discuss and obtain written agreement by the employee before the implementation of any rules if they are not specifically addressed in any employment agreement.
Self-identification of sex simplified through the Births, Deaths, Marriages, and Relationships Registration Bill
On 9 December 2021, the Births, Deaths, Marriages, and Relationship Registration Bill (“Bill”) was unanimously passed by Parliament. This Bill means that those who do not identify with the sex assigned to them at birth are able to correct this themselves far more easily. Self identification of sex process
Currently, the process for changing the sex on one’s birth certificate requires an application to the Family Court. The application must contain evidence that the individual has undergone irreversible medical treatment to physically conform with a different sex, such as hormone therapy or genitalia reconstruction. This creates a cost barrier for those who cannot afford such medical treatment. There are also cost barriers associated with making such an application to the Family Court. The Bill acts to remove this complex and often inaccessible process. Once the majority of the Bill comes into force on 15 June 2023, those who wish to change the sex recorded on their birth certificate can apply directly to the Registrar-General with a statutory declaration which follows a self-identification process. Such self-identification will be based on whether a person identifies as male or female, rather than eligibility criteria such as medical treatment. This is an important step towards helping takatāpui, transgender, non-binary and intersex New Zealanders hold an identity document which aligns with who they are. Self identification is a more accessible and inclusive way to amend the sex recorded on birth certificates. Updating the language of the Act
Another focus of the Bill is to update the language of the Act. On 15 December 2025, a provision will come into force which enables a parent that is notifying the birth of a child to specify whether they wish to appear as mother, father or parent on that child’s birth certificate. This is another important change to enable New Zealanders to establish their own identity. Conclusion
For cisgender New Zealanders, changing the sex listed on their birth certificate is not something that has required consideration. However, for those who have faced regular stigma, exclusion, social isolation and even violence based on sex, this is an important update to the law. The Family Law team would be happy to assist with any legal representation required to change your sex on your birth certificate or discuss aspects of the updated Act.
Surrogacy in New Zealand
Surrogacy is an arrangement which enables couples to conceive when they are experiencing hardship conceiving themselves. What many people are not aware of is the legal implications surrounding surrogacy, in particular the rights of the “intending parents” – that is, those who intend on assuming the psychological parental role of raising the child. What is surrogacy?
Surrogacy occurs where a surrogate mother agrees to carry a child to term on behalf of “intending parents” and in place of the intended mother throughout the term of gestation. The surrogate is the “carrier” of the child. If the surrogate has a partner, under current law, that partner must consent to the surrogate carrying the child. The surrogate and their partner are the “carriers” of the child. There are two forms of surrogacy: Traditional surrogacy: The surrogate’s eggs are used, making her the biological mother of the child.
Gestational pregnancy: The woman carrying the child to term has no genetic link to the child and the embryo is typically biologically that of the intending parents. Legal parenthood
Whilst surrogacy itself in New Zealand is not illegal, any surrogacy arrangement is unenforceable. This means that, until a child is adopted by intending parents, the surrogate mother and her partner (if any) remain the legal parents and guardians of the child and they could change their minds at any time about the child going to the intending parents. This is true regardless of whether one or both of the intending parents donated their genetic material for the pregnancy by surrogate. Once the child is born via the surrogate, the intending parents must legally adopt the child before they are recorded as the parents. The adoption process is done through the Family Court. The mandatory 10 day stand down period before the application for adoption can be made still applies in these circumstances. It is possible, however, with social work consent, to have the child placed with the intending parents from birth. The court needs to be satisfied that the intending parents are “fit and proper” people to adopt the surrogate child and also that the carriers consent to the adoption. Until the adoption order is granted, the carriers will have all guardianship responsibilities for the surrogate child. The Care of Children Act 2004 (“COCA”) defines guardianship as having all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child. An exercise of guardianship of a child means determining for or with the child, or helping the child to determine, questions about important matters affecting the child. Important matters affecting the child include: The child’s name (and any changes to it);
Changes to the child’s place of residence that may affect the child’s relationship with their parents and guardians;
Medical treatment for the child (if that medical treatment is not routine in nature);
Where, and how, the child is to be educated; and
The child’s culture, language, and religious denomination and practice. Guardians are required by law to act jointly, by consulting with each other wherever practicable with the aim of securing agreement on important matters. Once the adoption order is granted, the carriers lose any and all guardianship or parenting rights to the surrogate child. That means that they will not have a say in any of the matters referred to above, they cannot enforce contact with the child and the intending parents do not need to consult with the carriers on matters such as the child’s education, religion or health options. The birth certificate is amended to record the intending parents as the surrogate child’s parents. Financial support
Surrogates can only be financially supported by intending parents for the physical surrogacy process (such as in-vitro fertilisation or IVF), independent legal advice in relation to the surrogacy, and other reasonable expenses incurred as a result of the surrogacy arrangement. Any financial support given outside of these reasons is not lawful and carries penalties of up to $100,000 fine or one year imprisonment. The intention behind this law was to prevent commercial surrogacy. However, the effect is a financial limitation on the surrogate mother when opinion varies as to whether a surrogate mother qualifies to take paid parental leave under the Parental Leave and Employment Protection Act 1987. A surrogate would qualify for 10 days unpaid special leave but this does not resolve the issue of loss of income in relation to the pregnancy. The decision to be conservative with the payment of reasonable expenses can be linked to the unenforceability of surrogacy arrangements. For example, a couple may prefer to be careful with what financial support is provided, despite wanting to support the surrogate, when the surrogate could decide to keep the child. In this case, the couple would be left open to accusations of committing a criminal offence by providing liberal financial support. This also leaves surrogates financially vulnerable. Te Ao Māori view
Whāngai is a relatively well known Māori arrangement where a child is given to others to raise. The arrangement is considered similar to surrogacy. However, one of the principles that underpins whāngai is whakapapa (genealogy) and for this reason, whāngai arrangements rarely go beyond whānau or hapū. This ensures that a whakapapa connection is maintained between the child and the birth parents. Reasons for whāngai arrangements other than infertility also include strengthening relations within hapū or iwi, or to instil cultural knowledge into a child. However, once a child is legally adopted in Aotearoa New Zealand, the carriers lose any guardianship rights and cannot enforce contact with the child. The Law Commission’s July 2021 Review of Surrogacy Issues paper notes that this goes against whakapapa in principle. While it is still possible to make a contact agreement for the carriers to remain in contact with the child, the law affords guardians with ultimate deciding rights. Further, once intending parents adopt a surrogate born child, they are the legal parents recorded on the new issue of that child’s birth certificate, whether or not they are the child’s full genetic parents. This can cause a loss of knowledge of whakapapa if open conversations are not had and causes issues in relation to state law specific to that child’s hapū or iwi. Conclusion
With the myriad issues that arise in relation to surrogacy arrangements, both for the intending parents and the carriers, it is important to seek advice early on to ensure as smooth a process as possible. The Family Law team at Holland Beckett Law would be happy to help you with advice in relation to surrogacy arrangements and adoption orders.