KN v CN - [2016] NZHC 2049

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

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1557 [2016] NZHC 2049

UNDER the Care of Children Act 2004

IN THE MATTER OF

an appeal against a decision of Judge I M Malosi made in the Manukau Family Court on 14 June 2016

BETWEEN

KN Appellant

AND

CN Respondent

Hearing: 23 August 2016

Appearances:

A Ashmore and M Fairley for the Appellant
A J Cooke for the Respondent
J Robertson, lawyer for child

Judgment:

31 August 2016

JUDGMENT OF MUIR J

This judgment was delivered by me on Wednesday 31 August 2016 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………

Solicitors: A Ashmore, Barrister, Auckland
A J Cooke, Barrister, Manukau
J Robertson, Barrister, Newmarket

KN v CN [2016] NZHC 2049 [31 August 2016]

Introduction

[1] The appellant (KN) appeals from the Family Court’s decision under s 105(2) of the Care of Children Act 2004 (COCA) ordering the return of two children to Australia.1 The case is therefore one under what is commonly called the Hague Convention, the relevant provisions of which are incorporated into New Zealand domestic law.2

[2] KN, who is the children’s mother, says that the Family Court erred in not finding that she is so compromised psychologically that her return to Australia with the children will leave her so significantly dysfunctional that it creates a grave risk of psychological harm to the children or will otherwise place them in an intolerable situation.

[3] KN says further that such grave risk to the children cannot be ameliorated by their return to the father in the event of dysfunction because there is evidence of sexual abuse of her son (Z) which would need to be fully investigated before such an arrangement could be contemplated.

Background

[4] KN is a New Zealand citizen. On 7 November 2009 she married CN who is an Australian citizen. They lived together in Sippy Downs on the Sunshine Coast and subsequently had two children, Z born 20 November 2010 and a daughter K born 21 September 2012.

[5] On 2 October 2015 KN travelled to New Zealand with the children. The visit was ostensibly so KN could support her sister who was undergoing medical tests in relation to possible cancer. The Family Court found, however, that at the time of her departure, she planned to remain in New Zealand after arrival. That finding is not challenged on appeal and was one which, on the evidence, was, in any event, clearly
available to the Family Court.

1 CMN v KN [2016] NZFC 4633.
2 The Hague Convention on the Civil Aspects of International Child Abduction 1980 as incorporated into New Zealand domestic law by ss 94 – 124 of the Care of Children Act 2004.

[6] From the time…

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 KN v CN

Details

AGLC: KN v CN [2016] NZHC 2049
Case: [2016] NZHC 2049
Decision Date: 31 August 2016

CaseChat Overview and Summary

KN appeals against a decision of the Family Court ordering the return of two children to Australia. KN argues that the Family Court erred in not finding that she is so compromised psychologically that her return to Australia with the children will leave her so significantly dysfunctional that it creates a grave risk of psychological harm to the children or will otherwise place them in an intolerable situation. The court considered whether there was a grave risk that the children’s return would expose them to physical or psychological harm or would otherwise place the children in an intolerable situation. The court found that KN had not demonstrated that the Family Court’s decision was wrong. The court concluded that the appellant has not established that there is a grave risk of psychological harm to the children (at a level which is intolerable) from an order requiring their return. The appeal was therefore declined and the children are to be returned to Queensland, Australia within six weeks of delivery of this decision.

Orders