Lucy Vala-Blackmore

Qualifications

LLB, University of Waikato 2019
Admitted to the Bar in New Zealand 2020

Community & Industry Activity

Te Wahi Whakaoara Rotorua Women’s Refuge Board Member
New Zealand Law Society Family Law Section Executive Committee Member
New Zealand Law Society Waikato/BOP Women in Law Committee Member
Community Law Rotorua (Family Law Clinic) Volunteer

Contact

DDI: +64 7 349 5562
E: lucy.vala-blackmore@hobec.co.nz

Lucy is a senior solicitor working in Holland Beckett’s family team. She is based in our Rotorua office.

Lucy grew up in Rotorua before moving to Hamilton to complete her Bachelor of Laws at the University of Waikato. Lucy returned to Rotorua and gained experience with Holland Beckett Law as a summer clerk. Lucy specialises in all areas of family law and is an approved supervised legal aid provider. Lucy is a Rotorua local and is passionate about being involved in the Rotorua and Bay of Plenty community.

Lucy Vala-Blackmore's Expertise

Family Law

Civil Litigation & Dispute Resolution

Lucy Vala-Blackmore's News & Resources

Testamentary Guardians

A testamentary guardian is appointed via a Will or Deed to “step into your shoes” as a parent when you die. A testamentary guardian is not appointed to care for the child. That is something quite different and cannot be provided for in a Will. You can read more about testamentary and court appointed guardians in the Care of Children Act 2004. When should you appoint a testamentary guardian and what do they do? A testamentary guardian is appointed alongside the surviving parent (usually) for input into “the big important decisions” about a child’s upbringing like education (where do they go to school), health (major medical decisions not day to day bumps and sniffles), religion, residence (which country or region do they live in, not a specific house or street), and permission to marry under the age of 18. These rights and responsibilities end when the child attains the age of 18 years or earlier if the child marries, enters a civil union, or lives with another person as a de facto partner. Why do it? It is worth considering if you have separated from your child’s other parent to ensure your views about upbringing are represented in the event of your death or if you are worried your family will be “cut off” from the child when you die. If you are still happily in a relationship it is probably not necessary to appoint a testamentary guardian as it is likely you can trust your spouse/partner to make good guardianship decisions for your children if you die. If you are worried about what happens if you both die together then you could each say in your wills that “if we both die together, we appoint X as a guardian.” If you are the sole guardian of your child (the other parent has died already) then you should definitely consider appointing a testamentary guardian. So, who does care for the kids if we die? The surviving parent would usually remain carer for the child unless unwilling or unable or unsuitable. If you have both died it is assumed that the family will rally around the child to take them in. Whomever they live with (which may be the testamentary guardian if appointed or may not be – there is no default assumption) may then file an application for a parenting order providing them day to day care together with guardianship orders if necessary. A testamentary guardian could apply for a parenting order if they wanted to contest day-to-day care or seek contact rights to the child and as they are already a guardian they would not need the leave of the Court to do so. Before an application for a parenting order can be filed, the guardian will normally have to provide evidence that he or she has sought to resolve the matter with the other guardian/s by family dispute resolution unless the circumstances are urgent. The legal test to determine a child’s care arrangements is “what is in the welfare and best interests of the child” so it depends on all the circumstances at the time. Things to remember: Only one testamentary guardian can be appointed. The consent of the person to be appointed as a testamentary guardian is not required. A person appointed as a testamentary guardian cannot decline the appointment. As a guardian of the child, the appointee could apply to the court for an order for his or her own removal. Another guardian could also apply for removal of the testamentary guardian. A testamentary guardian has the same rights and responsibilities as the living parent/guardian but only upon the death of the appointor. They have no say in the upbringing of the child prior to that parent’s death. By appointing a testamentary guardian you are not appointing somebody to care for your child if you die.

Buying property with family – fun or potential fiasco?

In the present economic climate, getting into (or climbing) the property ladder is tough. To get a deal across the line, purchasers are increasingly looking to alternative ownership options. One such option we commonly see is ‘co-ownership’ of property between family members. Taking matters a step further than the traditional parental guarantee of a child’s purchase, we are now seeing co-ownership between multiple relatives (such as siblings and their spouses, or parents and all/some of their children). This is despite that not all owners intend to live in or maintain the property. While this sounds good on paper, unfortunately these arrangements often proceed without the appropriate documentation and can go wrong. Untangling them can be complex where there has been intermingling of purchase funds, family members not being treated equally, deaths occurring and relationships souring over time. What to do if you want to buy property with other people? If you are buying property with others (often who are not your spouse or partner), you should have a written agreement to cover key aspects. The terms can cover: ownership shares and monetary contributions to purchase (including bank loans); who will live in the property; who will pay property expenses and maintenance; what will happen if someone wants to sell the property and others don’t; what happens on death of a party; and how will any proceeds of sale be distributed. This way, if a dispute does arise there will be a clear path forward to minimise any fall out (if possible). Property Sharing Agreements are used to document these arrangements, which are simple but effective. Purchasers can also consider whether funds should be gifted or loaned. Our property lawyers can assist you with this process. You can also read our article on Gift v Loan. If you are wanting to buy property with your partner or spouse, there are a different set of questions and documentation to consider (for example, whether you need a contracting out agreement). Our dedicated family team can advise you on all aspects of relationship property. See also our article on Contracting Out Agreements 101. When it goes wrong A recent example of an undocumented family property purchase is the case of Boot (As Executor and Trustee of Estate of Hart) v Stephens [2023] NZHC 3863. Parents (the Harts) helped their daughter and her husband (the Stephens) buy a property. The title said that each couple owned a 50% share of the property, but in reality, the Stephens contributed more to the purchase price. They also paid for most of the property expenses in that time. Years later, both the Harts died, and their other five children wanted to sell the property so that 50% of the sale proceeds could be distributed to the children via their mother’s estate. The Stephens claimed that they were entitled to 67% of the property. Additionally, they had lived in the property for 17 years and did not want to sell. Ultimately, the Court held that, given the family’s intentions and contributions, the Stephens were entitled to 66% and could buy out the estate’s 34% interest. Regrettably, the dispute and litigation took a toll on the siblings’ relationships. If you own property with your family and there is a dispute There are a number of options to resolve a dispute if there is no written agreement, including obtaining Court orders to force a sale under the Property Law Act 2007. First and foremost, our experienced litigation lawyers can help you to resolve matters before Court through negotiation or mediation, if possible. If negotiations are not successful, we can guide you through the litigation process.

Relationship Property – if we split, who gets the family dog?

Separation can be a difficult process. Not only are there a lot of emotions involved, but there are likely to be assets that are owned jointly, or separately but which have been used by both parties during the relationship. Working out who gets to keep what can be straight forward in some cases, but often the matter is more complex than you may expect. The Property (Relationships) Act 1976 (“PRA”) applies to marriages, civil unions or de facto relationships of three years or more. In limited circumstances, the PRA can also apply to relationships of shorter duration. What is relationship property? The PRA defines both relationship property and separate property. The family home and family chattels, whenever acquired and in whoever’s name they are legally owned, are relationship property. Contrary to popular belief, whether or not you owned the family home or chattels before the relationship, they will be relationship property dividable equally between both parties to the relationship (subject to certain limited exceptions). Family chattels can include furniture, appliances, household tools, pets, as well as cars, caravans, trailers and boats if they were used wholly or principally for family purposes. Gifts from one spouse or partner to the other are generally not regarded as relationship property – so no, you don’t have to give back the rings. Relationship property may also include superannuation and KiwiSaver, shares and investments, business interests, life insurance policies, rental and investment properties, property acquired in contemplation of the relationship, rights in respect of a trust, as well as relationship debt (which does not have to be in the parties’ joint names). Bank accounts which hold funds earned or received during the relationship are also likely relationship property despite being in the name of only one of the parties. Taonga and heirlooms, as well as chattels used wholly or principally for business purposes, are excluded from the definition of family chattels. This means these items will usually be separate property rather than relationship property, however this is decided on a case-by-case basis. What is separate property? Any property that is not relationship property is separate property. Such property does not need to be divided between the parties to the relationship. Generally, separate property also includes: Property which was acquired by either party whilst they were not in a relationship and that has not been used during the relationship for family purposes; Property acquired out of separate property or any proceeds of sale of separate property; Any increase in value of separate property and any increase in income or gains derived from separate property; Property acquired from a third person by gift, inheritance, or as a beneficiary of a third person’s trust. It is important to keep property acquired by succession, survivorship, gift, or under a third party’s trust separate if you intend it to be separate property. If property can be seen to have been intermingled with relationship property, making it unreasonable or impracticable to regard it as separate property, it will become part of the relationship property pool. How is relationship property divided? While relationship property is generally divided equally between the parties of the relationship, there are limited circumstances where division should occur in unequal proportions. This may be due to economic disparity between the parties because of the effects of the division of functions within the relationship or in extraordinary circumstances that would make equal sharing repugnant to justice – although this is a high threshold to meet. Disclosure In order for your lawyer to advise you on what the full relationship property pool consists of and what your legal entitlements are, a process of disclosure by both parties of all assets, debts and interests must take place. Values will be determined, as well as the status of the item as relationship property or separate property. Following the completion of that process, the division of property can usually then be agreed by way of negotiation. Will we need to go to Court? Most people do not need to resort to the Family Court in order to resolve their relationship property division. It is only if an agreement cannot be reached between you and your former spouse/partner that Court proceedings are needed. Who gets what? You won’t walk away with half of a car so don’t get the chainsaw out. Generally, global division of relationship property can be reached without property needing to be sold – or cut in half. This involves taking into account the total value of the assets being retained by each party, and one global adjustment figure being paid by one party to the other party to ‘equalise’ the overall division so that each party is keeping 50% of the total net value of the relationship property pool. What about the pets? With the classification of pets such as cats and dogs as family chattels, you obviously will not both be able to keep your fur babies. The court has formulated their own way of determining who gets to keep the pet based on the pet’s best interests. This means the court considers things like who takes the best care of the pet, who is able to provide the best home for the pet and the pet’s needs. Independent legal advice Each party must receive independent legal advice as part of entering into a legally binding Separation Agreement. To be valid as a full, final and binding settlement, any agreement must be in writing and signed by both parties after independent legal advice and in the presence of their lawyers. If you find yourself experiencing a break up of a long term relationship, the specialist Family Law team at Holland Beckett can offer you practical and pragmatic advice with care and sensitivity. We have a team of lawyers who are experienced in negotiating and drafting Separation Agreements, or taking matters to court if needed.

Fencing – rights and obligations for neighbours

Neighbours are commonly grappling with issues about their fences: one neighbour may want to upgrade a boundary fence and the other refuses to pay their fair share, you may find out that your boundary fence is not on the true boundary of your property, or your neighbour may have built a fence which obstructs your view. Not only does this cause headaches, it can present real problems when you want to sell your property. What may seem like a trivial matter can turn into a lengthy and expensive dispute – often at the expense of your good neighbourly relationship. It is therefore important to know your rights and obligations when it comes to fences. Fencing Act 1978 Property owners can enter into agreements or covenants regarding fencing matters, which may be registered against the title of a property. If that happens, subsequent owners would be bound by the agreements, and future grievances could be avoided. However, if an agreement has not been reached, most of the law relating to fences is contained in the Fencing Act 1978. Building or repairing a fence – who bears the cost? Fences should generally be on a boundary line, and the cost of erecting, maintaining or relocating a boundary fence shared equally between the neighbours. You can compel your neighbour to share the cost under the Fencing Act, provided certain procedures are followed. There are some exceptions, however, such as where one neighbour damages the fence: they cannot then expect the other neighbour to pay half the cost of repair. Another example, common in some new subdivisions, is where there is an agreement or covenant on the title exempting an owner (usually the developer) from contributing to the cost of a fence. Replacing a fence - is the fence adequate? Your neighbour will only need to contribute to the cost of replacing a fence if the existing structure is not already “adequate” (meaning of a nature, condition and state of repair reasonably satisfactory for the purpose it serves or is intended to serve). Whether or not an existing fence is “adequate” will depend on a number of factors, including the location of your property (rural or residential) and the nature of the fence (hedge or wall). However, your own personal desires or expectations are not normally relevant. If there is a dispute about whether the existing fence is “adequate” it may be necessary for the Disputes Tribunal to determine the issue. What if it is not in the right place? Disputes surrounding boundary fences can become complex. A formal survey is usually required to identify the parts of the adjoining properties that are incorrectly marked by the fence. If a fence is not on the true boundary, one party may decide to build another fence on the boundary line, and the other party may be liable for half the cost. Or, if a fence encroaches one neighbours property, they may require the fence to be relocated. This can become a real issue where one party wants to sell their property. If the parties cannot agree to relocate the fence, the affected neighbour may apply to the Court for an order to remove or alter the fence which adversely impacts their land. Procedures Whether or not your neighbour agrees to your proposal to repair, replace or erect a fence, you must issue a fencing notice. A fencing notice puts your neighbour on notice of the proposed work and costs, and you must give them 21 days to respond. If your neighbour does not respond to the fencing notice within that time, you may commence the work and your neighbour can’t object later. If you fail to give your neighbour notice of your proposed work, you could be liable to pay for the costs of the fence yourself. There are some exceptions to this, such as if immediate work is required as a result of a fence damaged or destroyed by an accident. It is always important that you identify and notify the correct person: either the owner of the property, or an occupier by virtue of a tenancy not less than 10 years. This can be complicated if the neighbour is a unit title or cross lease. If the correct procedure is not followed, you may find yourself having to pay the full costs of the fencing work, or having to apply to the Court to help resolve the issue. To avoid this, we recommend you seek legal advice before issuing a notice or starting fencing work. Holland Beckett has experience in fencing disputes and would be happy to provide you with our advice on your situation. For example, we can assist with drafting fencing notices, lodging claims in the Disputes Tribunal or District Court, and providing general advice on your liability to pay the costs for an adjoining fence.

Contracting Out Agreements 101

In New Zealand, there is a general legal presumption that once you have been in a de facto relationship for three years, relationship property is to be divided on a 50/50 basis if you separate or one of you dies. You and your partner can agree to divide your relationship property in a way that is more appropriate for your relationship by entering into a legally binding Contracting Out Agreement (also known as a “pre-nup”). The Property (Relationships) Act 1976 (“the Act”) The Property (Relationships) Act 1976 (“the Act”) sets out how relationship property is to be classified, valued and divided upon separation. The general presumption under the law is that once you have been in a de facto relationship for three years, relationship property is to be divided on a 50/50 basis unless you have entered into a legally binding Contracting Out Agreement. The question of whether or not you are in a de facto relationship is not always “black and white” as this depends on all of the circumstances of your relationship but in essence boils down to whether you are “living together in a relationship in the nature of marriage”. Sometimes, when people separate prior to being de facto for 3 years, there may already be some relationship property entitlements where there are children of the relationship or if substantial contributions have been made to the relationship, but the 50/50 presumption does not apply until you reach the “3 year mark”. However, once your relationship reaches the “3 year mark”, the Act has a retrospective effect in that all assets and liabilities acquired from the start of your relationship will become relationship property and will be divided in accordance with the Act if you do not have a Contracting Out Agreement. The Act is based on the model of a couple whose relationship commences at a young age with each partner having few assets, and together they build up assets over the course of their relationship. Many couples do not fit this model, for example if one partner is bringing significantly more assets to the relationship than the other partner. Therefore they may wish to make alternative arrangements for the division of their relationship property in the event that they separate. Contracting Out Agreements When you sign a Contracting Out Agreement pursuant the Act, you are agreeing with your partner that certain sections of the Act will not apply in the event that your relationship ends and your relationship property needs to be divided. If you and your partner do not enter into a Contracting Out Agreement, the Act will govern your relationship property division in the event of separation or death. In order for a Contracting Out Agreement to be legally binding, it must be: Recorded in writing and signed by both parties; Each party needs to have obtained independent legal advice; Each parties’ lawyer will need to certify that they have given you independent legal advice and have fully explained the effects and implications of the Agreement to you before you signed it. The benefit of entering a Contracting Out Agreement is that it will give you and your partner clarity and peace of mind on how your assets and liabilities will be divided in the event of your separation or death. Some common examples where a Contracting Out Agreement may be appropriate are: Where you and your partner are buying a home together and one of you is contributing significantly more or less than the other, and you do not want the home to be split 50/50 if you separate; Where one partner enters the relationship with significantly more assets than the other partner such as interests in Trusts, businesses or property that they wish to protect; Where an older couple chooses to live together in a pre-existing home owned by one partner solely, and that partner wants to ensure the other partner does not become entitled to a half share in that home on separation or death; Where one partner is gifted or inherits funds that they wish to protect; or Where one partner has significantly more liabilities or business risk than the other. You and your partner can enter into a Contracting Out Agreement at any point during your relationship, however we recommend doing so as early in your relationship as possible. Contracting Out Agreements are not totally ‘watertight’ but they are the best available protection from relationship property claims. It is possible for a party to apply to the Court to set aside a Contracting Out Agreement on the basis that it would cause them “serious injustice” if it was upheld. Whilst this is a high threshold to meet, it is very important to ensure that your Contracting Out Agreement is fair for each partner and their circumstances, and to review it regularly to ensure this remains the case in light of changes in your circumstances and developments in the law. The above information is intended as general advice only. If you are in a relationship and are considering whether a Contracting Out Agreement would be suitable for you and your partner, Holland Beckett’s family team are more than happy to assist. For advice on your own specific circumstances please contact one of our specialist family lawyers.

Family Dispute Resolution for non-urgent parenting disputes

What is FDR? Family Dispute Resolution (“FDR”) is a mediation service, designed to help separated couples and their families resolve disagreements regarding care of children. Attempting FDR is usually a mandatory pre-requisite before you can apply for a parenting or guardianship order in the Family Court. There are limited exceptions to this. For example, FDR is not appropriate where family violence is involved or where urgent orders are required to prevent harm or hardship to you or your child. Preparing for FDR The ‘Parenting through Separation’ course (“PTS”) is a free 4 hour course which aims to help you understand and manage the effects of separation on your child/ren. You and your ex-partner attend separately. During the course you will create a parenting plan which will help you work out what parenting arrangements could work best for you. PTS is also normally a pre-requisite before you can file proceedings in the Family Court. What to expect at FDR An impartial mediator will run the FDR session. Mediators, also known as “FDR providers” can be found on the Ministry of Justice website at: https://www.justice.govt.nz/family/care-of-children/find-a-service-to-help-with-disputes/. Once you have found a mediator, you will be required to provide details of all parties involved in the dispute. This will usually be your ex-partner, however it can also include a member of your wider family, for example a grandparent of the child/ren, if they are involved in providing care for the child/ren. Before FDR begins, the mediator will want to understand whether the dispute is suitable for FDR. They will ask you some screening questions such as: whether you or your children have been subject to domestic violence; whether you can fully take part in FDR. For example, the other party may live overseas or, does not wish to partake or, you may have a disability which makes it difficult for you to attend/participate; and whether you may be benefit from preparatory counselling before attending the FDR session/s. Preparatory counselling can be helpful if you are feeling too stressed about the relationship issues to think clearly and calmly about shared care arrangements for your children. It can help you prepare for discussion you will need to have at FDR. During FDR, the mediator is there to facilitate an open discussion and to help you resolve your disputes about care of your children, including: who they live with and when; how changeovers are managed; childcare arrangements (e.g. after school care and holiday care); and other important dates like birthdays and celebrations. Guardianship issues can also be discussed, for example: where the children go to school; religion; names; and medical treatment. Lawyers are not allowed to attend FDR, although you are entitled to seek legal advice at any stage during the process. In particular, you may wish to seek legal advice before agreeing to a particular arrangement. If an agreement is reached following FDR, the mediator will write up the agreement in full. This is not a binding Court order. If, after time, you want to vary the agreement, both parties need to give their consent to the variation. It is also possible to formalise the FDR agreement by way of applying to the Family Court by consent for a Parenting Order. Conclusion FDR is often a compulsory first step in resolving parenting disputes following separation. If you would like any further advice regarding care of children and guardianship issues, please don’t hesitate to get in contact with one of our family law specialists.