AEP v KM - [2015] NZHC 380

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-641

CIV-2014-409-642 [2015] NZHC 380

UNDER the Care of Children Act 2004

AND UNDER

the Status of Children Act 1969

IN THE MATTER OF

an appeal against a decision of the Family
Court at Christchurch

BETWEEN

AEP Appellant

AND

KM
First Respondent

AJP
Second Respondent

ATTORNEY-GENERAL Third Respondent

Hearing: 23 February 2015

Appearances:

S van Bohemen for Appellant
I Mitchell for Respondent
No appearance for Second Respondent
M Casey for Third Respondent

Judgment:

6 March 2015

JUDGMENT OF MANDER J

AEP v KM [2015] NZHC 380 [6 March 2015]

[1] In 2007, the appellant, AEP, and the first respondent, KM, commenced a de facto relationship in New Zealand. In 2010, KM moved to Australia. AEP remained in New Zealand for a short period before joining him. In February 2011, while in New South Wales, AEP gave birth to a baby daughter, A. AEP and KM were registered as A’s mother and father on the birth certificate.

[2] In August 2013, AEP travelled to New Zealand with A. Two days later, AEP advised KM that she was not returning to Australia. Later that year, AEP advised the second respondent, AJP, that she believed he was A’s biological father.

[3] In February 2014, KM applied to the Australian Central Authority for the return of A to Australia, in accordance with the Convention on the Civil Aspects of International Child Abduction (Hague Convention).1 An application was subsequently made in the Family Court for an order for the return of A pursuant to s
105 of the Care of Children Act 2004 (the Act). AEP gave notice of her intention to defend the application on the basis that KM was not A’s natural father.

The paternity proceedings

[4] On 19 May 2014, at a directions conference before Judge Somerville, the application for the return of A was adjourned pending DNA testing. At that time, it was acknowledged by AEP that KM’s application would only be contested if it was established that A was not his natural child.

[5] Judge Somerville adjourned the matter for legal argument in the event that A proved to be the daughter of someone other than KM. Judge Somerville recorded that the matter was not to be set down for fixture “until a declaration of paternity has been made if the DNA evidence supports that”.

[6] On 26 May, the DNA testing returned a result which very strongly supported the proposition that AJP was A’s biological father. An application was subsequently filed by AEP under the Status of Children Act 1969, for declarations that AJP was A’s

father and that KM was not. In early July, AJP formally acknowledged the DNA

results and supported a request that his name be added to A’s birth certificate.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AEP v KM

Details

AGLC: AEP v KM [2015] NZHC 380
Case: [2015] NZHC 380
Decision Date: 6 March 2015

CaseChat Overview and Summary

AEP appeals against a decision of the Family Court which gave priority to a Hague Convention application for the return of her daughter, A, to Australia. The appeal concerns the order in which two sets of proceedings were to be heard. The first set of proceedings was brought by KM, A’s father, seeking the return of A to Australia. The second set of proceedings was brought by AEP seeking a declaration that AJP, a man whom AEP believed to be A’s biological father, was A’s father and that KM was not. The Family Court ruled that the Hague Convention application should be decided first, and the paternity proceeding deferred. The Court of Appeal rejected AEP’s arguments on appeal. The appeal is dismissed.

Orders