Andrews v Buckley - [2023] NZHC 2372

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 PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-454-27

[2023] NZHC 2372

IN THE MATTER OF an Appeal from a Decision of the Family Court at Palmerston North

UNDER THE

Care of Children Act 2004, ss 105, 106, and

143

BETWEEN

ANDREWS

Appellant

AND

BUCKLEY

Respondent

Hearing: 16 August 2023

Appearances:

J Sutton and A Strang for Appellant

D D Vincent and N A A Patje for Respondent C Davidson Lawyer for Child (via VMR)

Judgment:

29 August 2023

JUDGMENT OF McQUEEN J

ANDREWS v BUCKLEY [2023] NZHC 2372 [29 August 2023]

Table of Contents

Para Nos

Introduction[1]

Background[2]

The Convention and its implementation in New Zealand law [4]

Family Court proceedings[19]

Ms Andrews[22]

Mr Buckley[39]

Mr Buckley’s mother[56]

Section 133 report[57]
Lawyer for the Child in the Family Court[71]

Family Court judgment[72]

Approach to appeal [83]

Issues on appeal[88]

Analysis[92]

Submissions for Ms Andrews[107]

Submissions for Mr Buckley[115]

Submissions by the Lawyer for the Child[120]
General approach to Convention matters[123]
Relevance of concealment and deception[128]
Is Thomas settled in New Zealand?[144]
Exercise of the discretion[149]

Result[163]

Costs[164]

Introduction

[1] The appellant (Ms Andrews) and the respondent (Mr Buckley) are the parents of Thomas, their 12 year old son.1 Ms Andrews appeals against the decision of Family Court Judge Broughton on 5 April 2023 to decline her application for an order to have Thomas returned to Australia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention).2 Ms Andrew’s appeal is brought

1 The names of the parties and their son have been anonymised following consultation with counsel as to the names to be used.
2 [Andrews] v [Buckley] [2023] NZFC 3350 [Decision under appeal].

pursuant to the Care of Children Act 2004 (the Act), which incorporates the Convention into New Zealand law. Ms Andrews seeks an order that Thomas be returned to Australia.

Background

[2] The following is a brief summary of the factual background, drawn from the Family Court judgment:3

[3][Thomas] was born in New Zealand, but moved to Australia with [Ms Andrews] and [Mr Buckley] in early 2013. In late 2013, the parties separated. Shortly after, the family moved to New Zealand. In early 2014, the family relocated back to Australia.

[4]In 2015, [Mr Buckley] and his mother […] took [Thomas] to New Zealand without [Ms Andrews’] consent. Following a successful Hague Convention application, [Thomas] was returned to Australia.

[5]In 2018, [Mr Buckley] again took [Thomas] to New Zealand without [Ms Andrews’] consent, and in breach of an Australian court order. They returned to Australia later that year.

[6]In 2020, [Mr Buckley] took [Thomas] to China, again without [Ms Andrews’] consent. While [Thomas] was…

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 Andrews v Buckley

Details

AGLC: Andrews v Buckley [2023] NZHC 2372
Case: [2023] NZHC 2372
Decision Date: 29 August 2023

CaseChat Overview and Summary

Ms Andrews appeals the Family Court decision not to order her son, Thomas, to be returned to Australia from New Zealand, where he is living with his father, Mr Buckley. The Family Court held that the application for Thomas’s return was made out of time, and that Thomas was settled in New Zealand and objected to returning to Australia. The Family Court exercised its discretion not to order Thomas’s return. The High Court dismissed Ms Andrews’ appeal. The High Court found that Thomas was settled in New Zealand and that the exercise of the discretion should be in Thomas’s best interests. It was in Thomas’s best interests to remain in New Zealand to maintain his relationships, including with his father and his paternal grandmother, and to avoid further upheaval and change of environment.

Orders