X v M - [2020] NZHC 1377

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-11

[2020] NZHC 1377

BETWEEN
X

Appellant

AND

M

Respondent

Hearing: 15 June 2020

Appearances:

Appellant in person Respondent in person

Judgment:

18 June 2020

JUDGMENT OF LANG J

[on appeal against refusal of application to be appointed as litigation guardian]

This judgment was delivered by me on 18 June 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Copies to:
Appellant and Respondent

X v M [2020] NZHC 1377 [18 June 2020]

[1] Dr X and Ms M have been engaged in litigation in the courts of both Germany and New Zealand since at least 2010. The subject of the litigation is their daughter L. L is now nearly 13 years of age, having been born in Germany on 3 July 2007.

[2] Ms M, her new husband and L have been living in New Zealand since April 2015 under the authority of visas granted under the Immigration Act 2009. Ms M procured these by falsely stating she had sole custody of L when she entered New Zealand. The true position was that the courts in Germany had awarded sole custody of L to Dr X.

[3] Ms M and L left Germany without letting Dr X know they were leaving or where they were going. Dr X did not know where Ms M and L were living until late 2016, when he discovered they were residing in New Zealand.

[4] Dr X then invoked the procedures available under the Hague Convention to have L returned to Germany. This resulted in an unsuccessful application to the Family Court followed by unsuccessful appeals to the High Court, Court of Appeal and Supreme Court (the Hague Convention proceedings).

[5] The present appeal arises from the fact that on 2 May 2017 Dr X applied to the District Court at Thames to be appointed as L’s litigation guardian for the purpose of bringing a further proceeding in the District Court against Ms M. In that proceeding Dr X will seek orders giving him control over funds held in a New Zealand bank account that he alleges belong to L. He says Ms M has misappropriated those funds for her own purposes.

[6] On 14 February 2019, Judge R G Marshall dismissed Dr X’s application to be appointed as L’s litigation guardian for the purpose of bringing the proposed proceeding.1 Dr X appeals against that decision.

1 X v M [2019] NZDC 2023.

The proposed proceeding

[7] The funds that would be the subject of the proceeding came from the sale of assets owned by L’s grandmother, who inherited them on the death of her husband. Dr X contends the funds were earmarked for L’s education but Ms M denies this.

[8] Ms M acknowledges that funds are currently held in L’s name in bank…

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 X v M

Details

AGLC: X v M [2020] NZHC 1377
Case: [2020] NZHC 1377
Decision Date: 18 June 2020

CaseChat Overview and Summary

The appeal concerns the refusal of an application to be appointed as a litigation guardian for a minor child, L. Dr X, L's father, sought to be appointed as L's litigation guardian in order to bring a proceeding against L's mother, Ms M, for control over funds held in a New Zealand bank account that he alleges belong to L. The appeal arose from the District Court's refusal of Dr X's application. The legal issues for the court were whether Dr X was able to fairly and competently conduct the proposed proceeding on L's behalf and whether he had interests adverse to those of L. The court found that Dr X was not able to fairly and competently represent L's interests in the proposed proceeding. It found that Dr X was not independent and had interests adverse to L, including a desire for retribution against Ms M. The appeal was dismissed, and Dr X was not appointed as L's litigation guardian.

Orders