Brown v Byrne [2019] NZFC 8312

Published 05 November 2019

Care and contact arrangements — parenting order — alienation — relocation — welfare and best interests of children — hygiene issues — parental estrangement — Care of Children Act 2004, ss 4, 5 & 6 — Oranga Tamariki Act 1989, ss 14, 31 & 91. The mother sought the relocation of the parties' two younger children into her day-to-day care. She was concerned as they had presented with poor hygiene, the father was difficult to communicate with and he had already alienated the older two children against her. The children had previously been placed under the guardianship of the Court with the Chief Executive of Oranga Tamariki acting as the Court's agent. The school principal said the children were often dirty and smelly and sometimes had to be showered at school by teachers. He had also seen maggots in one of the children's lunch-boxes. The older children said they hated their mother and refused to see her after their father turned them against her when she left the relationship (where she experienced abuse at the hands of the father). The two younger children had fortnightly weekend contact with their mother that was paid for by the mother and some support services. The father said he could not afford to contribute to the children seeing their mother. Evidence from Oranga Tamariki stated they were aware of these concerns but they were not a threshold high enough to warrant involvement. The primary consideration in Care of Children Act (the Act) cases is the welfare and best interests of the children. It is also a requirement that the Court take into account the principles in s 5 which include safety, parental and guardian responsibility for care, consultation and co-operation, continuity of caregiving arrangements, continuing relationships with parents and the preservation and strengthening of extended family relationships and identity. Section 6 says that opportunities must be given to children to express their views and any views expressed must be taken into account. Factors in favour of the children being placed in their mother's day-to-day care were that they would be protected from being alienated (they were already showing signs of negative influence from their father and older siblings), a hygienic home, the father's lack of insight into how his behaviour affected those around him and concerns about the father's parenting skills. Factors in favour of remaining with their father included that the children could remain with their siblings and would not have to move schools. Although there were concerns, Oranga Tamariki did not believe they justified significant intervention. The Judge determined it was in the welfare and best interests of the children to remain in the care of their father but have increased holiday contact with their mother. The father was ordered to get and maintain a phone and start working with a community support organisation. The order placing the children under the guardianship of the Court (with Oranga Tamariki acting as the Court’s agent) was to remain with some variations. The Chief Executive was requested to assist with changeovers for contact, ensure the father had a phone and to advise the father as to which agencies could assist him with his care of the children and to monitor his compliance. Any non-compliance was to be reported to the Court. Judgment Date: 16 October 2019. * * * Note: names have been changed to comply with legal requirements. * * *