Two sisters whose father wants them placed in state care after their refusal to see him at the school holidays have won a victory in the Family Court, following a protest against it.
The sisters, aged 10 and 12, live with their mother and step-father in New Zealand and were ordered by the court to spend four days with their Australian-based father last week. Identified as Mr A, the medical professional – who can no longer practise in New Zealand – had flown here for the court-ordered contact which allowed him access during the day.
When his daughters refused to see him and protested, Mr A responded by filing a without-notice application to have them taken from their home and placed in in the care of Oranga Tamariki (CYFS).
Without-notice applications for Family Court orders are supposed to be filed in urgent situations where a person’s safety may be at risk. The responding party – in this case the children’s mother – is normally kept completely unaware of the application, and subsequently unable to dispute it immediately.
However, in this case, the judge decided to hear from Mrs A at a hearing on Monday.
Newsroom’s coverage of this case is the latest in our investigation into the Family Court – specifically the enforcement of parenting orders.
Representing herself at the hearing, Mrs A sought to have the children kept in her care – and said she was not prepared to use “physical force” to make the girls see their father and comply with Family Court orders.
Mr A, who is back in Australia and was represented by a lawyer, accused his former wife of undermining his relationship with the girls.
His lawyer proposed removing the girls from their mother to enable the re-establishment of Mr A’s relationship with his daughters.
In addition to the immediate removal from her care, Mr A also sought guardianship of the girls , with his lawyer suggesting they be placed either with one of his family members, or in the care of Oranga Tamariki as a way of transition.
Despite this, Oranga Tamariki said in its submission it was inappropriate for the agency to be involved in the case. Reasons included:
· The likely need to involve police in any uplift of the girls because of their attachment to their mother, resulting in more trauma
· The lack of local agency places available for girls in the area they live
Meanwhile, the lawyer for both children, who has had a tense relationship with the girls, highlighted concerns regarding Mrs A, which included her failure to comply with the court order for the girls to see Mr A at the school holidays.
She also touched on similar concerns raised by Mr A’s lawyer regarding exposure to their mother’s views, but also pointed to the real likelihood of trauma ls should they be separated from her.
It is unclear what would happen if the girls were removed, and they were likely to try and return home on their own, the childrens’ lawyer said.
Following submissions, the presiding judge gave an oral judgement which touched on various points raised by the parties – including the increasingly difficult relationship between the girls and their father, Mrs A’s relationship with her daughters, and the trauma which all involved in the case acknowledged would likely result following an uplift.
In regards to the current dysfunction between the girls, their father and the role their mother had in that, the judge cited research from last year regarding parental alientation:
“The concept of alienation, and I use that term with some caution, is a complex one where there are often a number of different factors which come into play and comprehensive assessment is necessary to understand what conditions are both present and perpetrating of those dynamics,” she said.
Due to uncertainty around the girls’ views currently being expressed, and the “drastic steps” that would need to be taken over an uplift, removing them from their current home would be premature, the judge said.
On this basis, she refused Mr A’s without-notice application – enabling the girls to remain in their current home for the time-being. However, his application to have the children removed would continue on the regular, with-notice track, alongside the application for guardianship.
Agreements around counselling were made, and Mrs A – whom the judge desribed as an “intelligent, skilled person” – is expected to positively influence the girls “to repair and renew the…relationship with their father”.
The judge also agreed to a new lawyer being appointed to represent the girls.
Another hearing for Mr A’s substantive application is due to take place within a month.
