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 and he still says that – even more emphatically.

[7]	M has been in the Australian Youth Justice Centre now, as I have said, for over two weeks. An impasse had been reached where he would not go back to stay with his father and the Court would not grant a stay of the Family Court order pending the hearing of this appeal.3

[8]	All counsel agreed M should not continue to be in detention. Mr Z indicated through Mr Jefferson today he was willing for M to go to his maternal aunt’s home in

3	K v Z HC Napier CIV-2019-441-3, 15 November 2019 (Minute of Clark J) at [41].

Australia rather than make M remain in the Corrections Centre. M in response had earlier said he would not leave the Centre as he was concerned about being arrested but since then has agreed to go to his aunt’s home.

[9]	In the end counsel have indicated that agreement has been reached between all parties that M will stay in Australia at his maternal aunt’s home.

Psychological reports

[10]	The hearing of the appeal has been necessarily delayed due to the need for further psychological reports. These are necessary largely due to the recent events in Australia and M’s determination not to return to his father’s home.

[11]	No updating of the psychological reports had occurred since 2016. At that time Ms Kathy Orr had been appointed under the Care of Children Act 2004 (COCA),      s 133. She is familiar with the family and has met M. She had provided reports to the Court in 2012 and 2016. The reason given by the Judge for not seeking a report at the time of the 2019 hearing was set out in the Judge’s minute dated 18 September 2018 as follows:

With regard to whether a s 133 of COCA assessment or update assessment is required according to the criteria in s 133(6). I see no need for a report to be obtained. The Court is fully able to make its own assessment of the weight to be attributed to the views of these children especially as I have significant knowledge of this file and note the children’s ages.

[12]	Subsequently the hearing did not proceed in a timely way due to various appeals by Ms K. It was finally heard over two days in October 2019. This was certainly sometime later than the Judge had anticipated when he made the minute.

[13]	Ms Laugesen, who is lawyer for the child, contacted Ms Orr at my instigation this morning. Ms Orr has indicated that she would be willing to provide a further report. Ms Orr noted first:

(a)	That she could give the matter her urgent attention and travel to Australia to interview M in early January 2020 with a view to providing a report to the Court by mid-January 2020.

(b)	She wished the Court to be aware that a complaint had been made against her in relation to her earlier involvement and reports in this case. She did not consider that this would affect her ability to report impartially.

[14]	No counsel objected to Ms Orr’s involvement.

[15]	It was agreed that Ms Orr should be retained to provide a report under s133 of COCA as to the present circumstances, events and the effect of those events on. She will also indicate her views as a psychologist as to the options available for M and how they might affect his psychological wellbeing and best interests. These views of course will be in light of the judgment of October 2019 and recent events.

[16]	Counsel have provided a more detailed brief for Ms Orr upon which they have agreed. It sits under the general directives I refer to in [15]. I attach the specific brief prepared by counsel.

[17]	Ms Orr is appointed under s 133 of COCA to report to the Court in terms of both the general brief I have outlined above and the specific brief agreed by counsel and attached.

[18]	Mr Z has undertaken to pay for Ms Orr’s travel expenses for the trip to Australia, including reasonable travel and accommodation costs. The usual provisions in relation to the Ministry of Justice arrangements apply to Ms Orr’s fee otherwise. The Court has the power to later require a contribution to the fees and disbursements in relation to Ms Orr’s report (and evidence) as well as any other attendance by her as usual.

Leave to appear for Ms K

[19]	Ms K has abandoned her appeal. She sought leave to appear at this appeal and support M’s appeal. In those circumstances, I have given leave to Ms K to appear and participate but on conditions. Ms Hughes appeared this morning for Ms K pursuant to leave. First Ms K will be liable for any costs awarded or contributions directed to be made toward the cost of attendances and reports under s 133, as well as any costs

ordered to be pay toward the lawyer for the child costs. Secondly, her participation is limited to support M’s appeal, not to pursue her own appeal insofar as it goes to her separate personal rights and interests.

[20]	The leave to appear is not granted to enable Ms K to circumvent the requirements that are imposed on parties to an appeal, including possible liability for costs and for payment of security for costs. Therefore, the conditions I have imposed are appropriate. I also note that I have been influenced by the fact that Ms Hughes has been appearing for Ms K and it has been of assistance to have her presence today.

Stay of Family Court orders

[21]	The Court has a wide discretion to grant a stay.4 I propose granting a stay of enforcement of the Family Court Order but that stay is only a partial stay and it is also made on terms. I note that there is wide power to grant a partial stay and make it on terms and conditions. In that respect I refer to the decision of Pinson which notes that the Court’s inherent jurisdiction also applies to allow a grant of a stay either full or partial and it may be on terms.5 In any event counsel are all agreed that this is the appropriate course to enable the psychological report to be provided to the Court.

Present arrangements

[22]	The arrangements that have been made for M pending the resumption of this appeal have been agreed as follows:

(a)	M is to remain in Australia residing with his maternal aunt, (Ms M) or he may go to his father’s home in Australia, at his choice. He will initially be bailed to his aunt’s home from the Detention Centre where he is at present.

(b)	Arrangements will be made for him to be interviewed by Ms Orr away from the influence of either parent or as Ms Orr considers appropriate

4	High Court Rules 2016, r 20.10(2)(b).
5	Pinson v Pinson [1991] NZFLR 308 (HC).

while she is in Sydney. That may include arrangements for a neutral venue. However, those arrangements are entirely up to Ms Orr.

[23]	In order to accommodate the arrangements set out in [22] I order a partial stay of the execution of the Family Court Order of 9 October 2019.6 Those orders are stayed to the extent necessary to implement those matters. I also note that the stay is granted on those conditions.

[24]	Mr Z has filed an undertaking not to apply for a warrant to uplift M. That undertaking is contained in a signed document headed “Family Action Plan for Change” handed up today. It reads:

[Z] has agreed that he will not attempt to executive or initiate the recovery order for [M] while he is residing with his Aunty [Ms M] during the interim Family Court Appeal process.

[Z] will not execute the recover order for [M] during the interim Family Court appeal process.

[25]	Mr Jefferson advises the Court Mr Z will file a similar undertaking in the Australian Court to the end that neither the New Zealand nor the Australian Court will take steps to enforce the orders requiring M to live with his father.

[26]	Ms Lewes indicated that this undertaking was the reason that M had agreed to go to his maternal aunt’s home in Australia rather than as he previously wished, which was to stay in the Youth Justice Facility rather than return to his father.

Conclusion

[27]	Counsel for child will provide a report 10 days before the next hearing date as to the present arrangements for M reporting to the extent possible on the situation which occurred when he left his father’s home including the place in which he was detained and any other relevant matters. It should also make submissions on the report prepared by Ms Orr.

6	Z v K, above n 2, at [147].

[28]	The psychological report referred to earlier by Ms Orr is to be filed and distributed to counsel on or before 20 January 2019 with the usual restrictions on that type of report.7

[29]	The parties may file submissions in relation to the psychological report and counsel for the child’s report:

(a)	The applicant, at least 10 clear days before the hearing.

(b)	The respondent, at least five days before the hearing.

(c)	Ms K, as an interested party, five days before the hearing.

[30]	The matter is adjourned for hearing to 18 February 2020 (one day allocated).

[31]	I am aware this takes M out of his schooling again for the beginning of next year and I am concerned that he has been out of school since probably October. However, there is little choice in view of the need to obtain further psychological evidence before a decision in the appeal can be made in order to allow a proper consideration of M’s best interests and welfare which is crucial to his future.

[32]	It is, of course, open to M’s parents to any agree to other arrangements with which he would comply in the meantime if they differ from those that I have set out. Any such application to vary the directions I have made may be sought in the interim by filing a consent memorandum with the Court.

[33]	Finally, I comment on counsels’ role in this. I am aware that counsel have their instructions from their respective clients but I note those have put to one side to the extent possible in order to comply with their obligations under the COCA in support of the best interests of M in this case. I thank counsel for their assistance.

[34]	Ms Orr should be available to give evidence on 18 February 2020.

7	The Report is obtained pursuant to Care of Children Act 2004, s 133.

[35]	A teleconference has been set down for 3 February 2020 at 10 am to consider progress to hearing.

Grice J

Brief for s 133 Report writer Kathy Orr

Having regard to her previous reports, the decision of 9 October 2019  in  the  Family Court and events which have subsequently transpired for [M]:

(a)	Obtain and report the views of [M] on the matters affecting him and report as to any psychological, emotional or developmental factors that the Court may wish to consider in assessing any weight to be given to those views. Specific comment should be made as to the respective maturity of [M] in terms of his ability to express his own views as opposed to views of either parent.

(b)	Is there any evidence that [M] has been alienated from one parent or aligned to other?

(c)	If so, what is the nature and dynamic of that alienation or alignment process?

(d)	Has the process of alienation or alignment (if established) been to such an extent to affect the height to be given to any views expressed by [M]?

(e)	Has either parent caused emotional or psychological harm to [M], whether intentionally or unintentionally?

(f)	Comment upon the nature and quality of the relationships between the siblings.

(g)	Will there be any psychological or developmental impact, positive or negative upon inter-sibling relationships should the children be living between the two households?

(h)	Report on the advantages and disadvantages of the four options, namely:

(i)	Award or maintain custody with the favoured parent with court- ordered psychotherapy and in some cases, case management.

(ii)	Award or maintain custody with the rejected parent, in some cases with court orders or parent initiated therapy.

(iii)	Place children away from the care of either parent.

(iv)	Accept the child’s refusal of contact with the rejected parent.

E J Lewes	S E Hughes
Lawyer for Appellant	Lawyer for Ms [K]

R J Buchanan	KL M Laugesen
Lawyer for Respondent	Lawyer for Child Mr [Z]

DATED: 16 December 2019