K v Z - [2019] NZHC 3350

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 WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-441-000003

[2019] NZHC 3350

BETWEEN K as Litigation Guardian for M Appellant

AND

Z

Respondent

AND

K

Interested Party

Hearing: 16 December 2019

Appearances:

E J Lewes for Appellant

S Jefferson QC and R Buchanan for Respondent L M Laugesen and C M R Milner for the Child S E Hughes for Interested Party

Judgment:

16 December 2019

INTERIM JUDGMENT OF GRICE J

(Stay of execution)

[1] This is an appeal1 from a decision of a recent Family Court judgment delivered on 9 October 2019.2 The child in question, M, is now a few months off 15 years of age.

1 This decision was delivered orally on 16 December 2019. The written form has been edited and footnoted before distribution. Initials have been used in relation to the names of the children and the parties.
2 Z v K [2019] NZFC 8290.

K v Z [2019] NZHC 3350 [16 December 2019]

[2] In the Family Court the Judge ordered that M be removed from where he had been living in Napier, New Zealand, to be in his father’s care in Australia. M had lived all his life with his mother, mainly in Napier. Mr Z has lived in Australia since M was about two years of age. M’s sister, A, lives with her father in Australia.

[3] M was taken to Australia in October 2019 pursuant to the orders. His relocation was achieved with the assistance of a private investigator hired by Mr Z and with the assistance of the police. M resisted. Once he was in Australia living with his father he ran away to his maternal aunt’s home who lived reasonably close to the father. M says he contacted her on his own initiative.

[4] M was then forcibly removed from aunt’s home by the police enforcing the New Zealand Family Court order in favour of Mr Z. As a result of the scuffle that occurred while M was resisting removal, he is now being held in Youth Correction Centre, a Youth Justice facility and faces charges of assault on two police officers. M refuses to go back to his father’s home. He has been in the Youth Justice facility for 24 days. The criminal charges against M are due to be called tomorrow in the Australian court.

[5] The Family Court Judge had had to predict the possible outcomes of various options for M’s care. He concluded that M’s best interests and welfare lay in being relocated to Australia to live with his father.

[6] M was then aged 14 years and 6 months. He said he wanted to remain with his mother at the time of that course case…

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 Z

Details

AGLC: K v Z [2019] NZHC 3350
Case: [2019] NZHC 3350
Decision Date: 16 December 2019

CaseChat Overview and Summary

In the High Court of New Zealand, K, as Litigation Guardian for M, appealed a decision made by the Family Court to remove M from his mother's care and place him with his father, Z, in Australia. M, who had been living with his mother in New Zealand, had been forcibly relocated to Australia and subsequently resisted returning to his father's home. As a result, he had been detained in a Youth Justice facility and faced criminal charges. The appeal was heard by Grice J, who was tasked with deciding whether the Family Court's decision was in the best interests of M.

The legal issues in this case centered around the best interests of the child, M, and whether the Family Court's decision to relocate him to Australia was appropriate. The court had to consider the recent events and M's determination not to return to his father's home. Additionally, the court had to decide whether the Family Court had properly considered M's psychological wellbeing and best interests when making its decision.

Grice J granted a partial stay of the Family Court's order, allowing M to reside with his maternal aunt in Australia or return to his father's home at his choice. The court also ordered that Z would not attempt to enforce the recovery order for M while he was residing with his aunt during the appeal process. Grice J decided to adjourn the hearing to allow for further psychological reports and for M to provide a report on the current arrangements. The court emphasized the importance of obtaining proper consideration of M's best interests and welfare before making a decision in the appeal.

In summary, the High Court of New Zealand granted a partial stay of the Family Court's order, allowing M to reside with his maternal aunt in Australia or return to his father's home at his choice. The court also ordered further psychological reports and adjourned the hearing to ensure proper consideration of M's best interests and welfare.

Orders