KP v AZ - [2020] NZHC 1340

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,

PLEASE SEE judgments/

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-000003

[2020] NZHC 1340

BETWEEN
KP AS LITIGATION GUARDIAN FOR THE CHILD

Appellant

AND

AZ

Respondent

AND

FK

Respondent

Hearing: 18 February 2020

Appearances:

E J Lewes for Appellant

R Buchanan for Respondent

L M Laugesen and for the Child S E Hughes for Ms K

Judgment:

21 February 2020

JUDGMENT OF GRICE J

(Guardianship (return to New Zealand) and interim parenting orders)

Table of Contents

Para No.

Introduction [1]
Appeal [10]

Grounds of appeal [14]

Fresh material on appeal  [16]
Application by Mr Z to adduce further evidence  [24]
Leave to appeal  [32]

KP v AZ [2020] NZHC 1340 [21 February 2020]

Interested party – Ms K [36]

Approach on appeal  [41]
Legal principles in COCA matters  [43]
Effect of intervening events on the appeal  [48]
Lawyer for child  [73]
The report of the lawyer for the child  [78]
M’s wishes  [87]

Report of Ms KO dated 15 January 2020 [89]

Family Court judgment  [112]
Submissions by litigation guardian for M  [124]
Present position  [148]

Consideration of s 5 principles [162]

Mr Z’s position [171]
Conclusion [174]

Lawyer for the child [185]

Introduction1

[1] This is an appeal from a decision of the Family Court delivered on 9 October 2019.2 Orders were made under the Care and Protection of Children Act 2004 (COCA) relating to M who will shortly turn 15 years of age. His parents are Mr Z, the respondent, and Ms K who is an interested party in this appeal.

[2] M is the youngest of four children of Ms K and Mr Z. Following their separation over a decade ago, all the children remained with Ms K. L is M’s oldest sister who moved to Australia and into her father’s care in 2016. The two other children, apart from M, are now over 16 years of age. The children have been the subject of numerous earlier proceedings in the Family Court but the three older children are now outside its jurisdiction. M’s older brother is away from home at university. The two New Zealand-based children are aligned with their mother in the conflict between their parents as is M.

[3] In October 2019 the Family Court ordered that M be removed from his mother’s (Ms K’s) care in New Zealand to his father’s in Australia. This was based on the Judge’s findings that Ms K had severely alienated M from his father and there

1 Delivered orally on 21 February 2020 in short form. The written decision has been edited and footnoted before distribution.
2 Z v K [2019] NZFC 8290 (“Z v K”).

was an opportunity for intensive counselling for M in Australia which might “deprogramme” him.

[4] Following…

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 1340
Case: [2020] NZHC 1340
Decision Date: 21 February 2020

CaseChat Overview and Summary

The High Court of New Zealand is hearing an appeal brought by M, a minor, who is challenging a decision of the Family Court that he be removed from New Zealand and placed in the care of his father in Australia. The appeal was heard by Grice J who concluded that the Family Court had erred in its decision. The appeal was allowed and M was ordered to return to New Zealand and the care of his mother. Grice J considered that the Family Court had insufficient evidence before it to make its decision and that an updated psychological report on M would have been helpful. Grice J also found that the decision to remove M from New Zealand posed a significant risk to M's safety and would likely cause him to run away and put himself in danger. M had clearly articulated his wishes to return to New Zealand and the court was of the view that his wishes should be given considerable weight. The court made interim orders for M's return to New Zealand, with contact to be agreed upon by his parents. The orders also included arrangements for M to receive counselling, funded by his father.

Orders