Armstrong v Armstrong [2017] NZFC 7098

Published 08 September 2017

Reserved Judgment — application for change of day-to-day care — breach of Court orders — warrant to enforce parenting orders — Care of Children Act 2004 ss 4, 5, 6. The mother made a unilateral decision to relocate the children from Auckland to a South Island location in breach of her guardianship obligations. In an oral judgment in July the Judge directed that the children's place of residence is Auckland, the children were not to be removed from this area, and the mother was to return with the children by a certain date. The children were returned to the Auckland. However, in an affidavit of the father the court was told the nature of the breaches of that contact order. The breaches included the mother not letting the father speak to the children on the telephone, the mother being late to contact change overs, and by stating that the children were not well enough to attend contact with the father. The court has had to issue two warrants previously to enforce the fathers contact after finding that the children were safe in his care. The court also noted that the mother regards herself as having the final say as to what is in the best interests and welfare of the children, and, therefore believes she has the right to override a Court direction. The issues for the court to determine on this occasion was: 1- whether the application filed by the father to vary the current interim parenting order should be granted; 2- whether a warrant is issued to enforce any order made; 3- whether the court should hold any party in contempt. The court examined the risks to the children if they were to stay in the mothers care, such as: the mother lying to the children which could damage their relationship with the father; as a role model the mother has shown noncompliance with the law is okay; and the children have suffered a loss of relationship with one parent. There were only two options available to the court. "One is a change of care and the other is leaving them with mother and therefore sanctioning the unilateral action taken by her". The court ultimately decided that it would be irresponsible for the court not to take advantage of the opportunity to ensure that the children have a relationship with both of their parents so have ordered that the children be placed in the interim day-to-day care of their father, it was also directed that the mother was to cooperate with the changeover as much as possible to make it less traumatic for the children; and the children were not to be filmed (as requested by counsel) when the police or social workers execute the warrant. Judgment Date: 6 September 2017 * * * Note: Names have been changed to comply with legal requirements * * *