K v S - [2021] NZHC 2082

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, 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 WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CIV-2021-485-365

[2021] NZHC 2082

UNDER the Family Violence Act 2018 ss 9(1)(a), 9(1)(b), 9(2)(a), 9(2)(b), 9(2)(c), 9(3)(b),
11(1)(a), 11(4).

BETWEEN

Ms K and Mr B Applicants

AND

Ms S

First Respondent

Mr S

Second Respondent

Hearing: On the papers

Counsel:

Applicants in person

L J Barry for the Respondents J Forrest, Counsel to Assist

Judgment:

11 August 2021

JUDGMENT OF GWYN J

(Application under s 60 Family Violence Act 2018)

Introduction

[1] Ms K is the mother of J. On 30 March 2020, Judge T M Black in the Family Court issued a place of safety warrant with respect to J and removed J from Ms K’s care under that warrant.

K and B v S [2021] NZHC 2082 [11 August 2021]

[2] Ms K and Mr B, Ms K’s father, have appealed that decision (as well as an evidential ruling made by the Judge in that proceeding). They have also sought judicial review of the decision and for the matter to be transferred from the Family Court to the High Court. The latter two proceedings are currently stayed pending the outcome of the substantive appeal.

[3] Ms K and Mr B have also filed the present application (the application), under the Family Violence Act 2018, seeking a protection order under s 60 in favour of J, against the respondents, Ms S and Mr S. Mr S is J’s father, and Ms S her paternal grandmother.

[4] The application is opposed by the respondents. Ms Barry, counsel for the respondents, has filed a memorandum dated 6 August 2021, setting out the basis of their opposition and inviting the Court to strike out the application as an abuse of process, under r 5.49 or r 15.1 of the High Court Rules 2016 or the court’s inherent jurisdiction.

[5] Mr B and Ms K have filed a memorandum dated 8 August 2021 addressing those grounds of opposition.

[6] Ms Forrest, who has been appointed as counsel to assist the Court in this and all related matters, has also addressed the application in a memorandum dated 8 August 2021.

[7] At the call of this matter before me, Mr B on behalf of himself and Ms K, and Ms Barry on behalf of the respondents, agreed that it was appropriate for me to consider the arguments in relation to striking out the application on the basis of the memoranda filed and to issue a judgment accordingly.

Grounds for dismissal or strike-out

[8] The respondents put forward a number of grounds of opposition to the application:

(a)Only the Family Court has jurisdiction to consider such an application. The jurisdiction of the High Court arises only in relation to…

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 K v S

Details

AGLC: K v S [2021] NZHC 2082
Case: [2021] NZHC 2082
Decision Date: 11 August 2021

CaseChat Overview and Summary

The case of K v S involves a dispute between Ms K, the mother of a child named J, and Mr B, Ms K's father, against Ms S, J's paternal grandmother, and Mr S, J's father. The matter pertains to a protection order under the Family Violence Act 2018, sought by Ms K and Mr B for the benefit of J. The application was filed in the High Court of New Zealand, Wellington Registry. The respondents opposed the application, and the matter was heard on the papers.

The legal issues in this case include the jurisdiction of the High Court to consider the application for a protection order, the standing of Ms K and Mr B to bring the application, and whether the subject matter of the application has already been determined by the Family Court. The court had to decide whether the High Court has jurisdiction to hear the application for a protection order under the Family Violence Act 2018, or if the Family Court is the appropriate court for such matters. Additionally, the court needed to determine if Ms K and Mr B have the legal standing to bring the application and whether the subject matter of the application has already been considered and decided by the Family Court.

The court found that the Family Court is the appropriate court to deal with applications under the Family Violence Act 2018, and the High Court only has appellate jurisdiction in such matters. The court also held that Ms K and Mr B do not have the standing to bring the application, as they do not fall within the definition of a "representative" as per the Family Violence Act 2018. Furthermore, the court concluded that the subject matter of the application had already been considered by the Family Court, which is currently under appeal to the High Court.

Based on the reasoning above, the High Court dismissed the application for a protection order under the Family Violence Act 2018.

Orders