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Carrie Leonetti, Disbelieving children’s disclosures and disregarding children’s views: what children’s appeals of parenting orders in New Zealand can teach about the harmful impact of ignoring children in care proceedings, International Journal of Law, Policy and the Family, Volume 39, Issue 1, 2025, ebaf008, https://doi.org/10.1093/lawfam/ebaf008
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Abstract
This article examines a unique feature of family law in New Zealand: the right of children to appeal their care and contact arrangements from the Family Court to the High Court. While they are rarely used, this article argues that these rare mechanisms provide a window into the damaging effect that Family Court orders have on children who have experienced family violence and are forced back into the care of violence perpetrators over their express objections and despite their well-founded fears.
I. Introduction
The primary provisions of New Zealand’s family law statutes look like those in other countries, particularly regarding the lack of direct participation by children, even mature, capacitated children, in private family law proceedings that affect them. In New Zealand, like in the rest of the world, children’s care and contact arrangements after parental separation are still treated as a contest between their two parents in which children are merely the subject matter of the dispute.1
Cases involving the care of children are confidential, so their litigation occurs behind a cloak of secrecy from which only the Family Court’s published judgment emerges, with whatever facts the presiding judge deems relevant to the parenting order issued. As a result, it is almost impossible to know the full facts of the history of family violence in these cases, particularly given the Family Court’s practice of deeming ‘historical’ abuse and intimate partner violence between parents irrelevant to children’s best interests. Evidence presented or views that children offered that the judge or their Lawyer for the Child deemed irrelevant often simply vanish from the reported judgment, obscuring the court’s reasoning about crucial risk assessments and interest balancing.
Family legislation in New Zealand, however, contains one feature that appears to be unique globally: a statutory right for children to appeal their own care and contact arrangements from the Family Court to the High Court. These children are not parties to their parenting cases in the Family Court, but they become parties on appeal.
This children’s appeal provision is rarely used by the children to whom it applies – those who object to the parenting orders issued by the Family Court that govern their care and contact with their parents after separation – because it is cumbersome, inaccessible, and poorly understood by most children to whom it applies. The few published judgments from the New Zealand High Court involving children’s appeals nonetheless provide a unique window into the way the Family Court considers the views of children (or, more accurately, does not), particularly when they object to being forced to have ongoing contact with violent fathers.2 They also provide a window into the damaging effect of these Family Court orders on children who have experienced family violence and are forced back into the care of violence perpetrators over their express objections and despite their well-founded fears.
Perpetrators of family violence exploit legal institutions to extend their control over victims.3 The way that legal institutions respond to disclosures of child abuse, therefore, can either be protective or they can endanger victims by placing them at risk of further abuse. In its Final Report, the Australian Royal Commission into Institutional Responses to Child Sexual Abuse concluded that institutional responses to child abuse – including reactions to disclosure, actions taken following abuse, and broader prevention and protection measures – have the potential to either compound or alleviate the impacts of the abuse.4 The Commission documented how victims were accused of lying or punished for disclosing abuse and how this caused them to stop making disclosures or to self-help by running away.5 It also documented the harm to victims when institutions prioritized supporting perpetrators over protecting victims.6
Two recent High Court cases involving children’s appeals in New Zealand demonstrate the unfortunate lack of child-centredness and trauma-informed response in the Family Court when court personnel are faced with children’s disclosures of abuse or expressions of fear of violence perpetrators. They also demonstrate the lack of meaningful regulation of the Family Court’s unsafe and traumatic responses to these child victims by the High Court on appellate review.
II. Framework for the care of children after parental separation
1. The best interests of the child
The central provisions of the Care of Children Act 2004 (NZ) (CoCA) are similar to custody statutes around the world, particularly since the ratification of the United Nations Convention on the Rights of the Child (UNCRC). The welfare and best interests of the child are supposed to be the first and paramount consideration in the Family Court’s parenting decisions (guardianship, care, custody).7 In determining the child’s best interests, the Court is supposed to take into account the relevant conduct of any person seeking care of or contact with the child, as well as the principle that the child must be protected from all forms of family violence.8 The Court is also supposed to consider the (often countervailing) principle that the child should continue to have a relationship with both parents.9
2. Children’s views
The Family Court is also supposed to give children with reasonable opportunities to participate in any decisions and express views on any matters affecting them and ‘take into account’ any views that the children express.10 The responsibility for determining and reporting a child’s views in New Zealand is typically assigned to a Lawyer for the Child. The Lawyer for the Child has two often contradictory roles: ensuring that the child’s views are communicated to the court and acting for the child in the way that the lawyer deems to be in the child’s welfare and best interests.11 In New Zealand, the Lawyer for the Child is not obligated to act in support of the child’s views or take instructions from the child. If the lawyer concludes that the child’s views are contrary to the child’s best interests, the lawyer reports the views but argues that the court should not follow them. As the New Zealand High Court has noted:
The role of lawyer for the child may involve, in any given case, an inherent fundamental tension. The tension is between what is sometimes called “the child's rights approach”, which requires the lawyer to act on the child's instructions when these can be obtained, and the “child welfare approach” which takes as a starting point the all-embracing paramountcy provision in s 4 of the Act which treats the welfare and best interests of the child as the overarching consideration, even where the child's views are in conflict with that broader consideration of the child's welfare.12
So, while children’s views are relayed to the court by their ‘lawyer’, they are not represented in the proceedings by a lawyer who owes them the professional obligations that real lawyers owe to their clients. Instead, the Lawyer for the Child performs a paternalistic role. It appears that the New Zealand Parliament assigned this role to a lawyer (as opposed to a social worker or trained child advocate) for historical rather than evidence-informed reasons. There is no indication in legislation or guidelines as to why a legally trained professional would be best suited for this role (or even why this professional ought to be conceived of as the child’s ‘lawyer’, since the fundamental qualities of a lawyer/client relationship – confidentiality, agency, and fiduciary obligations – are absent).
3. Failures in practice
These CoCA provisions largely codify the requirements of the UNCRC. The problem with these provisions, however, is that they are too subjective and amorphous to meaningfully guide judicial discretion, particularly regarding the crucial question of whether or when any given contact that a parent or other family member seeks with a child is in the child’s best interests or instead will put the child at an unacceptable risk of experiencing violence. Globally, family courts tend to overemphasize pro-contact principles and underemphasize safety and non-violence principles, regularly ordering children to have contact with violent parents whom they fear.13 This tendency stems from an ideological belief that losing a ‘normal’ relationship with a violent parent somehow harms children more than being exposed to additional family violence.14
Children’s participation rights are similarly honoured in their breach in practice in the Family Court. Proceedings to determine children’s care and contact arrangements after parental separation still largely function as in rem proceedings, with the parents as the parties and the child as the mere subject matter of the proceedings. In this way, care proceedings essentially serve as relationship–property disputes over human property.15 Because children are not viewed or treated as interested parties, their views are only skeletally presented, and their direct participation is non-existent in private care proceedings in the Family Court.
III. CHILDREN’S APPEALS IN NEW ZEALAND
1. Children as parties on appeal
CoCA contains a provision that is apparently unique to New Zealand family law and does not exist in other countries. Despite children being treated as inanimate objects of dispute in Family Court care proceedings, on appeal they suddenly become parties. Under Section 143 of CoCA, a child can appeal to the High Court against the Family Court’s parenting order in their care proceedings.
This child’s right of appeal is rarely exercised because it is inaccessible to most children who are the subject of care proceedings in the Family Court. A child would have the same 20-day period after a final Family Court order to note an appeal as any other party. Unlike the adult parties to the Family Court proceedings, however, a child in New Zealand cannot file an appeal in their own right. They must proceed by way of a litigation guardian (at least presumptively).16 Unless the child’s litigation guardian happens to be legally trained, that person will almost certainly require their own lawyer realistically to litigate in the High Court.
These barriers to children’s appeals can be formidable. For example, in JB v JB, a child wanted to appeal to the High Court against her care order in the Family Court because she felt that it lacked sufficient flexibility, but she could not find a litigation guardian willing to take the appeal for her.17 She unsuccessfully sought an extension of the time for appeal by way of her Lawyer for the Child in the Family Court.18 The High Court denied her application because it lacked jurisdiction to grant the application for an extension of time when the child did not have a litigation guardian to file it on her behalf, leaving the Family Court’s care order in place.19
In addition, recent research by the Backbone Collective strongly suggests that Lawyers for the Child in the New Zealand Family Court do not regularly advise children of their right to appeal, even though they are statutorily obligated to do so.20 In 2018, the Collective found that only 8 per cent of children who were subject to care proceedings had been advised of their appeal rights.21
2. The nature of children’s appeals
Given these serious obstacles, it is not surprising that the handful of reported cases arising from children’s appeals under Section 143 of CoCA involved relatively old, mature, and intelligent children from privileged educational and socioeconomic backgrounds. These children’s appeals procedures, therefore, are by no means a panacea for children’s rights or access to justice, but they do serve as an important source of information about the physical and psychological harms that occur to children whose well-reasoned views are not given due weight by the Family Court and whose safety is sacrificed to the access rights of violent fathers. This is particularly important because the New Zealand Family Court, like family courts globally, has no follow-up mechanisms to monitor children who are subject to their orders forcing them into the care of violent parents. Cases in the New Zealand Family Court are administratively closed, and the Lawyer for the Child’s role terminates as soon as the 20-day appeal period has lapsed, so these appeals are children’s only mechanism to be heard after these orders have taken effect.
The two most recent reported cases of children’s appeals to the New Zealand High Court under Section 143 of CoCA involved young people who were forced into the care of violent fathers over their adamant and express objections. They both involved the use of the discredited theory of parental alienation, which is endemic in family courts globally.22 This theory deems that when children express fear of being in the care of a parent with a history of family violence, their fears are irrational, and they will benefit more from contact with the violent parent than they will be harmed from exposure to additional violence.23
Both appeals also involved litigation guardians who were health professionals – in one case a general practice physician and in the other a psychologist.24 So, on appeal, these children’s views and interests were being represented by people who likely had training in child development, communicating with children, adverse childhood experiences, and the long-term effect that childhood trauma has on psychosocial well-being – all topics on which Lawyers for the Child in the New Zealand Family Court are notoriously poorly trained.25
In New Zealand, appeals of Family Court parenting orders to the High Court are general appeals rather than appeals against an exercise of discretion.26 As the New Zealand Court of Appeal has explained:
An appeal to the High Court from the Family Court is an appeal by way of rehearing. Whilst the High Court will naturally give weight to the views of the specialist court and may in some cases think it best to remit the case for reconsideration, it is fully entitled to substitute its views on questions of fact, including the issue of what is in the best interest of the child or children concerned. There is no rule of law requiring the High Court to defer on these respects to the Family Court even in the finely-balanced case.27
These appeals often involve the introduction of new or ‘updating’ evidence about what has happened since the issuance of the Family Court order under review.28 This is partly because the High Court Rules in New Zealand have a relatively permissive standard for the introduction of further evidence on review29 and partly because, since the child was not a party below, the appeal is the child’s first opportunity to introduce any evidence.30
Because the relationship between a litigation guardian and/or the lawyer that they instruct on the child’s behalf and the child who is appealing the lower court order is different from the ‘best interests’ role of the Lawyer for the Child in the Family Court, and because the litigation guardians in these two cases were both health professionals, the children’s views in these cases were presented to the High Court in a radically different way from how their Lawyers for the Child presented and represented them in the Family Court. Because the litigation guardians in these cases were advocating for the children’s views, rather than substituting their own (contrary) view of what was in their best interests, these appeals contain evidence that either was not presented or was not deemed important in the Family Court. As a result, these appeals demonstrate the terrible harm inflicted on these children by the Family Court’s insistence that they had to have contact with their violent fathers. They also demonstrate the profound difference in outcome that can result when children are represented by true advocates for their views and their safety rather than the paternalistic and outdated Lawyer for the Child practices in the Family Court.
IV. CASE STUDIES IN TRAUMA
These two recent children’s appeals in New Zealand provide an important window into the Family Court’s pro-contact ideology and refusal to place sufficient weight on children’s views, particularly when those views express resistance to being in the care of abusive fathers because the children are afraid of re-victimization. In these recent cases involving children’s appeals to the High Court of parenting orders forcing them into the care of violent fathers, the Lawyers for the Child (and in one case the court psychologist) argued in favour of forcing the children into contact with their violent fathers despite the predictable trauma that stemmed from the orders for which they advocated. As a result, these cases provide an even rarer (and tragic) window into the harm that children experience after these dangerous and traumatic orders.
1. KP v AZ (2020)
A. Background
In KP v AZ, the father left New Zealand when the youngest of the parties’ four children was 18 months old, moved to Australia, had almost no contact with the youngest child for years, and did not pay child support.31 Years later, the father sought full custody of the youngest child.
The mother presented evidence that the father had been abusive towards her and the children.32 The children disclosed multiple episodes of abuse by the father.
The New Zealand Family Court disbelieved the mother’s and children’s disclosures of abuse based on the discredited construct of parental alienation.33 The Family Court used the theory of parental alienation to completely disregard the children’s views, explaining:
[S]uch has been the intensity of the alienation that I doubt the children possess anything approaching an objective appraisal of how they actually feel. That is not to say the children will perceive that what they are saying is not their genuinely held views. They will unlikely appreciate the extent to which their views have been shaped and contaminated by their mother over their lifetimes to such a degree.34
When the young person35 was 14 years old,36 the Family Court ordered that he be removed from his mother’s custody in New Zealand and placed in the father’s care in Australia.37 The court also ordered that the young person be prohibited from having any contact with his mother.38 In support of his ruling, the judge found that the mother had ‘severely alienated’ the youngest child from his father and that he needed to be ‘deprogrammed’ in Australia.39 To enforce its parenting orders, the Family Court issued a search and seizure warrant authorizing the removal of the young person from his mother’s care by force if necessary (which the Family Court in New Zealand euphemistically calls an ‘uplift’).40 The father hired private transport agents to seize the young person from his mother’s home and force him onto the plane to Australia.41
Shortly after arriving in Australia, the young person ran away from his father’s home to the home of a maternal aunt who lived nearby.42 At the father’s insistence, the Australian police forcibly removed the young person from his aunt’s care and placed him in juvenile detention.43 The young person refused to be released from detention into his father’s care and disclosed to the staff at the detention centre that being in his father’s care was traumatic.44 The young person remained in detention for 4 weeks until the New Zealand Family Court finally amended its parenting order to allow him temporarily to return to his aunt’s home pending further proceedings.45 The young person remained out of school even after being released from detention, was distressed and traumatized, and experienced insomnia and a loss of appetite.46 As a result of what he perceived to be her failure to protect him, the young person’s attachment to his mother, his only parental attachment figure, became insecure.47
The young person, who was by then 15 years, filed an appeal of the Family Court’s parenting order to the New Zealand High Court by way of his litigation guardian, a family friend and GP, asking to be allowed to return to New Zealand and his mother’s care.48 The High Court ultimately ordered that the young person be returned to his mother’s care, noting the ‘immediate and high risk’ that he would ‘run away and put himself in danger and may harm himself if he is required to remain in Australia with his father.’49
B. The young person’s evidence on appeal
On appeal, the young person had two opportunities to be heard that were not granted to him in the Family Court proceedings. He was able to issue an affidavit and send a letter to the presiding justice, rather than having to rely solely on second-hand characterizations of his views by the Lawyer for the Child and the court psychologist.50 In his affidavit, the young person attested that he would not go back into his father’s care because his father had been psychologically abusive to him by keeping him shut in a room, preventing him from talking to anyone, and having private investigators watch him when he was at his father’s apartment in Wellington, New Zealand, before being relocated to Australia.51 He testified that his father called him names like ‘stupid’ and ‘retard’ and explained that ‘when I was younger he made me wear my t-shirt inside out and he made me stutter’.52 He attested that he had not had contact with his mother since he left New Zealand and that he missed her.53 He testified that she had always provided him with a home base, love, and affection and that he had a close relationship with his siblings and maternal grandmother, who were also in New Zealand.54 He explained that he had been doing well at school in New Zealand and aimed to be at the top of his class.55 He testified that he wanted to return to school and knew that he had the support of other people like his litigation guardian and her family.56 He offered a compromise of going to his high school in New Zealand as a boarder, but he also clarified that he would not want his contact with his mother restricted and wanted to see his siblings.57 He attested that he did not want any contact with his father given what had happened and being put in juvenile detention.58 He attested: ‘I don't want any relationship with my dad.’59
The young person’s letter to the High Court Justice included the poignant expression of his views: ‘I don't belong here. It's not my home. I just want to return home.’60
C. Updated psychologist report
In the Family Court, the court-appointed psychologist had wholeheartedly supported the view that the child’s rejection of his father was the result of his mother alienating him and recommended his forced removal and ‘care reversal’ to facilitate his deprogramming in Australia. She vigorously promoted the idea of ‘reunification therapy’ with the father in Australia to cure the child’s alienation, a ‘therapy’ that has been disavowed by the World Health Organization61 and banned in several other jurisdictions.62 Interestingly, given this robust position in the secretive New Zealand Family Court, she considerably softened her assessment in the updated report that she prepared for the High Court on appeal.
Her updated report noted that the young person insisted that his thoughts were not influenced by his mother, were uncoached, and were a result of experiences that were his alone and that his wishes were clear and adamant.63 He wanted to return home to continue his education at his high school and follow up with his long-term plans to attend university and study to be an engineer or lawyer.64 He wanted to recommence his relationships in his hometown in New Zealand.65 He stayed in touch with his friends, especially his three main friends, daily via computer and phone.66 He wanted no contact of any form with his father, whom he described as verbally and psychologically abusive and as having manipulated the court system.67 He characterized his father as ‘dominating, controlling, and disengaged’.68 He expressed fear of developing mental illness from the trauma that he had experienced.69
In her updated report, the psychologist nonetheless continued to stand by her assessment about the mother’s alleged parental alienation.70 She claimed that there had been ‘alienating behaviours’ and that the mother was ‘largely responsible’ for them.71 She offered the opinion that the young person’s attachment to his parents was less than secure because he was only 18 months old at the time of their separation, was highly needy of his mother, and had no attachment to his father.72
The psychologist’s report ultimately concluded that it would be nearly impossible to force a highly determined young person to have contact with his father against his will.73 The psychologist conceded: ‘There is a risk that this boy, previously showing no signs of a conduct disorder, achieving well at school, and having good social connections could pursue a more destructive route.’74 Unfortunately, however, she did not acknowledge that she had recommended a course of action in the Family Court that lacked any evidence basis and instead resulted in the predictable trauma to the young person. Instead, she continued to insist that the ‘reunification’ programmes for ‘parental alienation’ like the one that she recommended the Family Court force the young person to attend were largely successful but that this particular young person was simply likely to be in the very small ‘group of failures’ that ‘research’ suggested occasionally occurred.75
D. The judgment of the New Zealand High Court
While the High Court ultimately let the young person return to his home and family in New Zealand, it frustratingly did not find that the Family Court had erred in issuing its coercive and traumatic orders. The judgment asserted instead that matters had ‘moved on considerably’ since the Family Court ordered that the young person be removed from the care of his mother in New Zealand and forced into the care of his father in Australia.76 The court, at least implicitly, characterized as a surprising new development that the young person had proven to be ‘intractable’ in his desire to remain with his mother (even though he had been telling the Family Court psychologist and Lawyer for the Child that for years).
2. Lister v Price (2023)
A. Background
The child in this case was also in the primary care of his mother in New Zealand both prior to and immediately after his parents’ separation.77 The father had an extensive history of psychological abuse and coercive control against the mother, which both the Family Court and the High Court deemed irrelevant to the question of whether he was safe in his father’s care.78 In the few months prior to the parents’ separation, the father had repeatedly assaulted the child, who was between 9 and 10 years old, which was the catalyst for the mother leaving him.79 One of the father’s assaults on the child was so severe that bystanders had to intervene to protect him.80 Almost immediately after the mother and child fled his violence, the father applied for shared care of the child.81
B. The Family Court proceedings
When the child was between 10 and 11 years old, he told his Lawyer for the Child that his father had kicked him, pushed him down the stairs, and that he was afraid that he was going to kill him, and also expressed fear of having unsupervised contact with him.82 The father offered evidence from two expert witnesses, his psychiatrist and a psychologist from whom he had taken parenting classes, both of whom supported his having contact with the child only in public places and only if the child was empowered to terminate the visits if he became afraid of the father.83 Neither opined that the child’s fear of his father had anything to do with the conduct of his mother. The father, nonetheless, promoted parental alienation as a theory for the child’s fear of having unsupervised contact with him, insisting that the mother was ‘entirely to blame’ for his estrangement from the child.84
The Family Court found that the father had been physically and psychologically abusive towards the child and had caused the child to be afraid of him but incredibly ordered the child, then 11 years old, into extensive unsupervised overnight care of the father anyway.85 The Family Court made factual findings derived from the discredited theory of parental alienation, finding that: the child was asking for protection from his father because he was ‘confused and divided in his loyalties’; the father’s violence did not pose ‘a real risk’ to the child; the child was ‘aligned’ with his mother while ‘insisting that his views were his alone’; and the mother was sharing ‘unconscious messages’ to the child to fear his father.86 The Family Court ordered that the child had to have ‘frequent regular contact’ with his father, ‘whatever his view might be’.87 The court characterized the child’s expressions of fear of unsupervised contact with his father as ‘defiance’.88
C. The aftermath
After the Family Court issued its parenting order, the child suffered symptoms associated with post-traumatic stress: anxiety, panic attacks, insomnia, stomach problems, a racing heartbeat, and the persistent worry about having to spend time alone with his father.89 When the child was 11 years, during a visit to his GP, he told her that he had insomnia and anxiety because he was afraid that his father would assault him again during the court-ordered unsupervised contact.90
A few weeks later, the child, who by then was 12 years old, appealed the Family Court decision to the New Zealand High Court by way of a litigation guardian, a family friend and an academic child psychologist.91 The child told his litigation guardian that he had anxiety, insomnia, and panic attacks after the Family Court’s judgment because he was afraid that his father would hurt him.
In the High Court, the father continued to blame the mother for the child’s fear of him, claiming that she was ‘stoking’ his fears when she should instead be ‘allaying’ them.92 The child sought a stay of the Family Court’s contact order, requesting that he be required to have contact with his father only in public places, which the High Court largely granted.93
D. The judgment of the New Zealand High Court
Ultimately, the High Court set aside the Family Court’s parenting order, finding that the Family Court had placed more weight on overnight contact than on the child’s best interests and that the child, who was 13 years old by then, was ‘best placed to assess’ whether and how much contact he should have with his father.94 While the High Court ultimately liberated the child from forced overnight contact with his violent father, it again did not find that the Family Court had erred in issuing its coercive and traumatic orders.95
V. CONCLUSION
While it is a relief that in both children’s appeals, the New Zealand High Court ultimately granted the appeals, it did so only after the children had to undergo significant and unnecessary trauma. In the interim between when they were ordered into the care of their violent fathers by the Family Court and they were freed from those orders by the High Court, both children demonstrated well-established signs of post-traumatic stress: anxiety, insomnia, stomach problems, and persistent fear of re-victimization.96 These symptoms occurred not after their exposure to family violence or their mothers’ alleged ‘alienation’ of them, but only after the issuance of Family Court orders minimizing the authenticity or seriousness of their experiences of abuse and forcing them into the care of the perpetrators (in one case, despite the Family Court having found that the abuse had occurred and was the cause of the child’s fear of his father). Both children suffered additional episodes of abuse at the hands of their fathers after being ordered into their care by the Family Court. In this way, the Family Court orders enabled their abuse and trauma to continue.
Secondary victimization occurs when victims of abuse are subjected to inadequate, insensitive, or inappropriate responses by court professionals, compounding their original trauma and causing them to lose trust in the justice system.97 Poor responses to children’s disclosures of abuse hinder their recovery, the appropriate attribution of blame to the perpetrator, and their likelihood of making disclosures or seeking help in the future.98 Victims of child abuse who are not believed or supported when they disclose their experiences report feeling helpless and isolated and experiencing trust issues, self-blame, heightened anxiety, and dissociative symptoms from the added trauma of institutional betrayal, resulting in cumulative harm.99
The New Zealand High Court’s failure to meaningfully regulate the Family Court’s harmful decision-making and inappropriate responses to child abuse victims is disappointing. The High Court characterized these successful appeals as if the children were expressing their fears and their compelling bases for the first time or as if the children’s positions and situations had somehow meaningfully changed since their views were first ignored by the Family Court. This was a lost opportunity for meaningful appellate review and error correction. Because of the rarity of these appeals and the secrecy that shrouds New Zealand Family Court cases, there is no way to know how many children who have experienced violence are currently under Family Court orders to have unwanted contact with perpetrators whom they fear. These appeals are perhaps the only way that researchers, policymakers, and higher courts have to glimpse the tip of the secondary victimization iceberg.
Footnotes
Preliminary versions of this article were presented in November 2024 at the Intimate Partner Violence and Gender Discrimination in the Family Court conference at the Center for Comparative Gender Equality and Anti-Discrimination Law, UC Berkeley and in February 2025 at the Institutional Gaslighting workshop at the Macquarie University Ethics and Agency Research Center in Sydney, Australia.
C. Leonetti, ‘Detinue and Replevin: Arresting Children to Enforce Private Parenting Orders in the New Zealand Family Court’ (2023) 30(2) International and Comparative Law Review 74.
In addition to the two cases described in detail below, a search of the Westlaw and LexisNexis databases for New Zealand caselaw only uncovered one additional case in which a mature child wishing to appeal a care order to the High Court applied to do so in his own right by way of a litigation guardian, TAD v SED [2011] NZFLR 329 (HC). TAD is not canvassed in this article because the judgment was relatively short, did not indicate that family violence was an issue, and did not contain any information relating to the effect that the contact ordered against the child’s wishes was having on him.
M. Platt and others, ‘A betrayal trauma perspective on domestic violence’ in E.S. Buzawa and others (eds.), Violence Against Women in Families and Relationships (Praeger, 2009) p. 201.
Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Vol 3: Impacts (Commonwealth of Australia, 2017) pp. 11, 172.
Ibid p. 179.
Ibid.
Care of Children Act 2004 (NZ) (CoCA), s 4 (1).
CoCA ss 4 (2) (b) and 5 (a).
CoCA s 5 (e).
CoCA ss 5 (g) and 6.
Family Court Act 1980 (NZ) s 9B (1).
M v S (2007) 18 PRNA 681, 690.
C. Leonetti, ‘Combatting a Dangerous American Export: the Need for Professional Regulation of Psychologists in the New Zealand Family Court’ (2023) 40 UCLA Pacific Basin Law Journal 1; C. Leonetti, ‘Sub Silentio Alienation: Deceptive Language, Implicit Associations, Cognitive Biases, and Barriers to Reform’ (2023) 63 Washburn Law Journal 285.
C. Leonetti, ‘Endangered by Junk Science: How the New Zealand Family Court’s Admission of Unreliable Expert Evidence Places Children at Risk’ (2022) 43 Children’s Legal Rights Journal 17, 24.
Leonetti (n 1).
High Court Rules 2016 (NZ), Rule 4.13 (a).
JB v JB, HC Gisborne CIV-2009-016-445, 20 December 2010, paras 1 and 2.
Ibid para 1.
Ibid paras 7–11.
Family Court Act 1980 (NZ), s 9B (1) (d).
Backbone Collective, Seen and Not Heard: Children in the New Zealand Family Court, Part Two: Lawyer for Child? (May 2018), 45.
Leonetti, ‘Endangered by Junk Science’ (n 13).
C. Leonetti, ‘Punishing Disclosure and Silencing Victims: How the California Family Law Courts Retraumatize Abused Children by Labeling Them “Alienated”’ (2023) 43 Pace Law Review 360; C. Leonetti, ‘A Little Knowledge Is a Dangerous Thing: Custody Evaluators and the Pop Psychology of “Parental Alienation” in the California Family Law Courts’ (2023) 57 University of San Francisco Law Review 223.
Lister v Roberts [2023] NZHC 1583, paras 78 and 80.
Backbone Collective (n 21).
District Court Act 2016 (NZ), s 127; KP v AZ [2020] NZHC 1340; Finn v Poole [2015] NZHC 1362, para 73.
D v S [2003] NZFLR 81, 86 (CA).
Finn v Poole (n 26), para 74; S v O [2006] NZFLR 1 (HC), para 64.
High Court Rules 2016 (NZ), Rule 20.16.
KP v AZ (n 26) para 69; Lister (n 24) para 53.
[2020] NZHC 1366 (KP II); [2020] NZHC 1340 (KP I) para 2.
Ibid para 117.
Ibid paras 115–118.
Ibid para 121.
Children in New Zealand cease to be ‘children’ and become ‘young persons’ at 14 years old, Oranga Tamariki Act 1989 (NZ), s 2, although international law deems them to be children until they are 18 years. United Nations Convention on the Rights of the Child, art 1, adopted and opened for signature, ratification, and accession by General Assembly Resolution No 44/25 of 20 November 1989, entered into force 2 September 1990.
The High Court judgments in KP v AZ are inconsistent in their description of the chronology of the case, sometimes indicating that the Family Court decision ordering the child into his father’s care was issued in 2016 (when he was 11 years old), KP I (n 31), para 4, and sometimes indicating that it was issued in 2019 (when he was 14 years old). KP I (n 31), paras 3, 7. It appears from the remaining chronology of the case that the 2019 date is accurate.
Ibid paras 3, 123.
Ibid para 123.
Ibid para 3.
Ibid paras 6, 123.
Ibid para 4.
Ibid para 5.
Ibid paras 6, 50.
Ibid paras 6, 50, 78.
Ibid paras 7, 51.
Ibid paras 10, 78.
Ibid para 92.
Ibid paras 13–15.
Ibid para 170.
Ibid paras 16–18.
Ibid para 87.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid para 184.
C. Leonetti, ‘Opposite Sides of the Same Coin: Syndrome Evidence, Child Abuse, and the Wrongful Conviction of Peter Hugh McGregor Ellis’ (2024) 31 Psychiatry, Psychology and Law 612.
C. Leonetti, ‘Pedaling Snake Oil and Profiting from Pain: the Monetization of the Junk Science of ‘Parental Alienation’ in the California Family Law Courts’ (2024) 27 Quinnipiac Health Law Journal 1, 35.
KP I (n 31), para 90.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid para 59.
Ibid para 90.
Ibid.
Ibid para 94.
Ibid para 96.
Ibid paras 55–58, 100, 110, 155.
Ibid para 48.
Ibid para 33.
Ibid paras 118, 131–132, 137, 152.
Ibid paras 108–114.
Ibid para 114.
Ibid para 11.
Ibid paras 17, 109.
Ibid paras 122, 124.
Ibid para 36.
Ibid paras 26, 119.
Ibid paras 29, 33.
Ibid para 37.
Ibid para 145.
Ibid paras 86–87, 90, 92, 148.
Ibid para 86.
Ibid para 1.
In Re: Price [2021] NZHC 2764, para 43.
Ibid paras 59–64.
Ibid paras 152–156.
Ibid para 146.
J.F. Pagel, Post-Traumatic Stress Disorder (Springer 2021) pp. 13–16.
U. Orth and A. Maercker, ‘Do Trials of Perpetrators Retraumatize Crime Victims?’ (2004) 19 Journal of Interpersonal Violence 212.
D.A. Wolfe and others, ‘The Impact of Child Abuse in Community Institutions and Organizations: Advancing Professional and Scientific Understanding’ (2003) 10 Clinical Psychology: Science and Practice 179, 186.
Ibid 184.
