K v F

[2025] NZHC 2883

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2025-441-109

[2025] NZHC 2883

UNDER

the Care of Children Act 2024

IN THE MATTER OF

An appeal against a decision of the Family Court at Waipukurau

BETWEEN

Mr and Ms K Appellants

AND

F

Respondent

Hearing:	On the papers
Appearances:	A I Davis for Appellants/Applicant
Judgment:	1 October 2025

JUDGMENT OF CHURCHMAN J

Introduction

[1]        On 20 May 2025 the Family Court heard proceedings in relation to an Interim Guardianship Order dated 8 March  2024  and  an  Interim  Parenting  Order  dated 26 September 2024.

[2]In the decision dated 29 August 2025 the Family Court discharged both orders.

[3]        The effect of the Family Court decision was to require two children (A and B) to leave the house of their grandparents (Mr and Ms K) where they had been residing (along  with  their  half   sister   C,   since   the   death   of   their   mother   M)   on  27 February 2024).

Mr and Ms K v F [2025] NZHC 2883 [1 October 2025]

[4]        The result of the decision was that, effective of 29 September 2025 the children’s father (F) was to have primary care of A and B with Mr and Ms K having contact with A and B every third weekend as well as school holiday access. The Interim Guardianship Order in favour of Mr and Ms K was discharged.

[5]        On 24 September 2025 the appellants/applicants filed a notice of appeal, a without notice interlocutory application seeking a stay of the Family Court decision and an affidavit of the applicants support of the without notice application.

[6]        The grounds relied on for the application being commenced on a without notice basis are that requiring the applicants to proceed on notice would cause undue delay or prejudice. It is said that there is a real risk of prejudice, hardship or irreparable harm to the applicants and/or the children who are the subject of the decision if the orders of the Family Court are not stayed pending the outcome of the appeal.

[7]        It is said that giving notice to the respondent F would defeat the purpose of the application and that there was urgency in the application due to the requirement in the Family Court decision that the children relocate to Taihape on 29 September 2025.

[8]        It is also asserted that the best interests of the children require that the orders be stayed pending the outcome of the appeal.

[9]No memorandum of counsel was filed in support.

Analysis

[10]      By the time the without notice application for stay and supporting documentation were referred to me as Duty Judge on 30 September 2025, the time stipulated  in  the  Family  Court  decision  for  the  children  to  be  transferred     (29 September) had already passed. There was no explanation for the delay between the release of the Family Court judgment and the filing of the application for a stay.

[11]      I am not convinced that the matters set out in the material filed in support of the without notice application will result in prejudice, hardship or irreparable harm to either the applicants or the children. Neither is there any basis for the assertion that,

unless a without notice application is granted, the purpose of the appeal would be defeated.

[12]      The purpose of the appeal is to overturn the decision of the Family Court. The appellants will still be able to pursue an appeal contending that the decision was wrong.

[13]      The substantive appeal raises issue of significance for all parties (particularly the children). It is not appropriate for matters having a potentially significant impact on the wellbeing of children to be decided on a without notice basis unless there is some compelling evidence of potential harm that would be occasioned by proceeding on notice. A desire to preserve the status quo pending appeal is insufficient to justify a without notice application in the absence of evidence of serious harm that would be caused to the children.

Outcome

[14]      Accordingly, I decline the without notice application and direct that the notice of appeal be served on the respondents and the appeal is to proceed in the normal manner with a first case management conference to be allocated promptly.

Churchman J

Solicitors:
Gifford Devine Lawyers, Hastings for Appellants