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Marlowe v Gardiner [2021] NZFC 5151

Published 17 October 2022

Day-to-day care — parenting order — alienating behaviour — estrangement — Care of Children Act 2004, ss 4, 5, 6, 49C & 139A — Brown v Argyll [2006] NZFLR 705 — K v B [2011] 2 NZLR 1, [2010] NZFLR 884, (2010) 28 FRNZ 483 (SCNZ). The case concerned the day-to-day care of a child who had been living in the care of his mother for four years following his parents' separation. Upon separation, the father had failed to properly discuss the consequences with the child. As well as this, systemic delays in the process for the application of a parenting order further impeded the father's efforts to maintain a relationship with the child. The mother's influence on the child also obstructed the father-child relationship, and the mother allowed the child's preferences to solely dictate the care and contact arrangements in her favour. The Court heard from the s 133 report writer that the mother had consistently refused to consult with the father as a joint and equal guardian, and the child's views with regard to contact with the father had suffered as a result. The child became entirely alienated from the father. While the Court recognised the importance of giving effect to the child's views under s 6 of the Care of Children Act, it also acknowledged that this could reinforce his current negative views towards his father. The Court held that complying with the child's views was not in his welfare and best interests and concluded that while day-to-day care was to remain with in favour of the mother, contact with the father should occur for a varying number of hours every second Sunday. Judgment Date: 8 June 2021 * * * Note: names have been changed to comply with legal requirements. * * *