Andersen v Lewis

[2022] NZHC 1924

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000260

[2022] NZHC 1924

UNDER

the Care of Children Act 2004

IN THE MATTER

of an appeal against a decision of the Family Court at Christchurch

BETWEEN

ANDERSEN

Appellant

AND

LEWIS

Respondent

Hearing:

1 August 2022

Appearances:

M J Bryant and G J McIntosh for the Appellant S R Jefferson QC for the Respondent

A R Beaumont as Lawyer for Child

Judgment:

5 August 2022

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 5 August at 1.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ANDERSEN v LEWIS [2022] NZHC 1924 [5 August 2022]

Introduction

[1]                   The appellant (the father) is the father of L (aged 10 years). The respondent is L’s mother (the mother).

[2]                   L was born in the United States of America (USA) in 2011. After his parents separated in 2012, his care arrangements were recorded in three orders made within the USA jurisdiction. The last order, dated 3 January 2018 (the order), was made by consent.

[3]                   The father moved to live in New Zealand in 2018, and L has spent time with each parent in both the USA and New Zealand.

[4]                   On 1 December 2021, the father filed an on-notice application for a parenting order under the Care of Children Act 2004 (the Act). On 28 December 2021, the father told the mother that L would not be returning to the USA.

[5]                   On 17 March 2022, the mother filed an application for an order for return of L under the Act, which incorporates into New Zealand law the Hague Convention on the Civil Aspects of International Child Abduction, signed at the Hague on 25 October 1980 (the Convention) and subsequently ratified by New Zealand.

[6]                   The father alleged that when L was last in the USA the mother and her then husband physically and psychologically abused L. He also alleged there was an incident between the mother and her then husband that put L at risk. Finally, he alleged L objected to returning to the USA.

[7]                   On 7 June 2022, the Family Court issued a judgment ordering L’s return to the USA, finding L would not be at grave physical or psychological risk if returned to the USA and that L’s objection was not necessarily authentic as it may have been shaped in part by his father’s influence.1 The father appeals that decision.

1      Lewis v Andersen [2022] NZFC 5256.

Issues

[8]                   The father applies for leave to adduce further evidence on appeal and for an order directing a psychological report be obtained pursuant to s 133 of the Act.

[9]The issues for the Court to determine are…