KP v AZ - [2020] NZHC 1366

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 NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-000003

[2020] NZHC 1366

BETWEEN
KP AS LITIGATION GUARDIAN FOR THE CHILD

Appellant

AND

AZ

Respondent

AND

FK

Interested party

Hearing: 6 March 2020, 9 June 2020

Appearances:

E J Lewes for Appellant

R Buchanan for Respondent L M Laugesen for the Child S E Hughes for Ms K

Judgment:

17 June 2020

FINAL JUDGMENT OF GRICE J

Interim orders

[1] On 21 February 2020 allowing an appeal from the Family Court I made interim parenting orders and an order for return of M, the subject of the appeal, from Australia.1 He was then aged 14 years. He is now 15 years of age and settled back into his high school here.

1 K v Z [2020] NZHC 1340.

KP v AZ [2020] NZHC 1366 [17 June 2020]

[2] M was determined to return to New Zealand. He had grown up here in the day to day care of his mother. M had left New Zealand to live with his father in Australia against his wishes pursuant to orders of the Family Court made on 9 October 2019.

[3] Mr Z who, throughout has had M’s interests at heart, is resigned to this Court’s decision on appeal, but remains concerned to ensure counselling that had been agreed upon would be supported by Ms K.

Appeal

[4] I allowed the appeal and made final parenting orders on 21 February. However the guardianship order was interim pending an update from the lawyer for the child and finalisation of the counselling arrangements for M. The court-appointed psychologist who provided an updated report for the hearing, considered it important that an appropriately qualified psychologist with a tailored brief be arranged before final orders were made. Mr Z has agreed to fund those arrangements.

[5] The COVID-19 lockdown were imposed shortly before these arrangements could be finalised. Ms Laugesen, counsel for M, has since provided an update on M’s position and the arrangements for counselling. The parties have filed a joint memorandum setting out the agreed terms of the counselling.

[6] Ms Laugesen in her updated report advises that M has settled back into his environment and is working hard to catch-up at school. He has found the school supportive and is happy to be back. Reports indicate that he is more relaxed now following his return and the end of the litigation. He has had input into the brief for counselling but has indicated that he does not envisage including his father in counselling sessions at present.

[7] I am now in a position to issue a final judgment on the matter on the basis of the updated material and agreement on the counselling brief and arrangements.

[8] The…

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 KP v AZ

Details

AGLC: KP v AZ [2020] NZHC 1366
Case: [2020] NZHC 1366
Decision Date: 17 June 2020

CaseChat Overview and Summary

In the case of KP v AZ, the High Court of New Zealand heard an appeal from a Family Court decision that had ordered a child, M, to live with his father in Australia. M's mother, KP, acting as his litigation guardian, appealed the decision and sought for M to return to New Zealand. The court had to decide whether the Family Court's decision was correct and whether M should be returned to his mother in New Zealand. The court had to consider the safety and best interests of M, as well as his wishes.

The court found that the Family Court had made an error in its judgment and that M's safety and best interests were not being appropriately met by the decision to move him to Australia. The court found that the risk of M running away, putting himself in danger, and harming himself was high if he remained in Australia. The court also found that M's relationship with his mother and her family was important and that his return to New Zealand would allow him to maintain that relationship. The court found that the decision to move M to Australia had jeopardised his safety and that requiring him to stay there would put him at high risk.

The court allowed the appeal and made final orders that M return to New Zealand to live with his mother. The court also made directions for counselling for M to assist him in processing the extensive litigation he had experienced and to develop strategies to move on from it. The court directed that the counselling be funded by M's father and that the counsellor be provided with relevant documents to assist in the counselling process. The court also directed that M's guardians receive reports of therapeutic outcomes to allow M to be supported in his development.

In conclusion, the High Court of New Zealand allowed the appeal and made final orders that M return to New Zealand to live with his mother. The court also made directions for counselling for M to assist him in processing the extensive litigation he had experienced and to develop strategies to move on from it. The court directed that the counselling be funded by M's father and that the counsellor be provided with relevant documents to assist in the counselling process. The court also directed that M's guardians receive reports of therapeutic outcomes to allow M to be supported in his development. The court found that the Family Court had made an error in its judgment and that M's safety and best interests were not being appropriately met by the decision to move him to Australia.

Orders