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Parker v Heath [2018] NZFC 1952

Published 28 March 2019

Complex proceedings — temporary protection order — interim parenting order — alienation — relationship between parent and child — welfare and best interests of child — jurisdiction of the Family Court — Care of Children Act 2004, ss 5, 28, 31, 32 & 133 — Domestic Violence Act 1995, s 28B — Family Court Rules 2006, rr 34 & 220 — Domestic Violence Rules 1996, rr 2 & 416 — Hawthorne v Cox [2008] 1 NZLR 409 — Martin v Ryan [1990] 2 NZLR 209 — Y v X [2003] 3 NZLR 261. The respondent had previously obtained a without notice temporary protection order and interim parenting order. At this hearing, the applicant applied to have these orders rescinded. He also applied to place the children under the guardianship of Oranga Tamariki. The parties had two children and a fraught relationship involving several years of litigation over parenting arrangements and allegations of abuse by the respondent. There were some jurisdictional issues for the Judge to clarify as the interim parenting order had been made under the Domestic Violence Act rather than the Care of Children Act. It was decided that the legislation gave the Court the power to hear and determine the application to rescind. Upon reviewing the evidence the respondent had provided at the initial hearing, it was found she had made serious omissions to her counsel which resulted in a skewed presentation of the facts that were used to determine an interim parenting order was appropriate. Counsel for the applicant referred to case law which stated that in without notice hearings the applicant must be full and frank in disclosing material facts, and if the applicant fails to observe that duty the orders will normally be discharged. To uphold the temporary orders despite the respondent failing her duty to be full and frank in her disclosures would be unfair, so the Judge granted the application to rescind both orders. It was also decided that it was in the welfare and best interests of the children to be placed under the guardianship of Oranga Tamariki. There were serious allegations of physical abuse by the father and psychological abuse by the mother (in that she may have been alienating the children from their father). This gave Oranga Tamariki the power to uplift the children if necessary and the obligation to produce a report about their needs and how to best meet them within 21 days. In the meantime, the children were to returned to the care of their father until a directions conference could be held 28 days after the hearing. Judgment Date: 14 March 2018. * * * Note: Names have been changed to comply with legal requirements * * *