Application for removal of guardian — guardianship direction — welfare and best interests of children — unwilling to perform obligations of guardian — lack of intentional desire — Care of Children Act 2004, ss 4, 5, 6, 16, 29 & 46R — BLB v RSC [2012] NZFC 7162 — IMB v MBA [2007] 26 FRNZ 484 — Savea v Sefo [2015] NZFC 9510 — Shu v Huang [2020] NZFC 8370 — MLM v Chief Executive Ministry of Social Development [2013] NZHC 1064 — IMB v BMA [2007] 26 FRNZ 484 — Brooks v Ropata [2016] NZFC 1385. This was an application by the mother in the alternative: either for an order removing the respondent father as guardian of the parties' two children pursuant to s 29 of the Care of Children Act ("the Act"), or for a guardianship direction under s 46R of the Act granting the applicant mother sole decision-making power of guardianship decisions in relation to the children until they attained the age of 18. The respondent made no formal opposition to the application and was not present at the hearing so the hearing proceeded as a formal proof hearing. Section 29(3) outlines a two-step test for determining whether to grant an order for removal of a guardian. The Court must be satisfied that the parent is unwilling to perform or exercise the duties, powers, rights and responsibilities of a guardian, or that they are for some grave reason unfit to be guardian; and that the order will serve the welfare and best interests of the child(ren), having regard to the principles in s 5. The threshold is a high one. Section 16 of the Act outlines the duties, powers, rights and responsibilities of a guardian. The applicant had day-to-day care of the children and submitted that the respondent had demonstrated an unwillingness exercise his guardianship duties and that it would be in the welfare and best interests of the children, because the respondent had no relationship with them; it was difficult to arrange things without sole guardianship; and there had been safety concerns for the children while in the respondent's care. Lawyer for the children opposed the application on behalf of the children, submitting it was not in the children's welfare and best interests for the father to be removed as a guardian as this would sever any remaining connections between them. One of the children had expressed a desire to see their father, while the other noted mistrust but still expressed a desire to know about their father. The respondent, although not taking an active role in the children's upbringing, had expressed concern for the children in a message exchange with the applicant. The Judge agreed with the submission by the lawyer for the children that the threshold for unwillingness had not been met, and that it was not in the children's interests to legally sever ties with their father. The Judge was also not satisfied that it would be in the children's best interests to make a direction for the applicant to have sole decision-making power. Both applications were therefore declined. Judgment Date: 10 February 2021. * * * Note: names have been changed to comply with legal requirements. * * *