Lowe v Way  NZFC 6365
Published 30 August 2017
Reasons — rejection of a parent — alienation of child — application to vary or discharge guardianship order — application to suspend shared care order — application to place child under the guardianship of the court — views of child — wardship of the court — whether application for wardship premature — without notice application — Care of Children Act 2004, ss 31 - 35, 56 — Hawthorne v Cox  1 NZLR 409.
The parties' child was the subject of a shared care order that was not complied with; the mother retained the care of the child. An attempt to enforce a Warrant to Remove, returning the child to the care of his father, was aborted due to the distress of the child. The mother's position was that the child had rejected his father, that the rejection was realistic because the father was abusive and that the only way to protect the child was to end his contact with his father. The father's position was that the child had never experienced abuse in his care and that the child's rejection was not based in reality but instead due to the influence of his mother. The father's position was that if his contact with the child were to cease there would be serious long term consequences for the child, and that there would no longer be a buffer against the mother's influence.
The court was asked by the mother: to vary or discharge a previous decision granting a warrant for the removal of the child from her care and placing the child under the guardianship of the court; and to suspend a decision giving the parents shared care of the child. The father opposed those applications. Two applications were made for an order placing the child under the guardianship of the court for general purposes.
The court had regard to the affidavits of the parties, of a Ministry social worker, as well as the applicable sections under the Care of Children Act 2004 and relevant case law. The court considered what it meant to place a child under the guardianship of the court, and the need for caution. The court further considered the wishes of the child on the issues of guardianship and behaviours exhibited by the child. The expressed wishes of the child were balanced against the principles outlined in the Care of Children Act. The court finding that the child should be placed in the guardianship of the court for general purposes as it offered the prospect of an inquiry into the child's situation.
The applications by the mother were declined, and those made by the father and the Ministry of Vulnerable Children were granted. The child was placed in the guardianship of the court.
Judgment Date: 14 August 2017.
Reasons Date: 29 August 2017. * * * Note: Names have been changed to comply with legal requirements * * *