Foley v Garrett [2020] NZFC 4713

Published 02 November 2021

Application to reopen parenting order — substantially similar proceedings — material change to circumstances — welfare and best interests of child — Care of Children Act 2004, ss 5, 131A, 132 & 139A — Roundtree v Tipsanich [2015] NZFC 5488, [2016] NZFLR 99 — Pidgeman v Oliver [2015] NZFC 6585. This was an application by the mother to reopen the parenting order under s 139A of the Care of Children Act ("the Act"). The mother claimed that the father had been engaging in inappropriate behaviour (using a vibrator on himself while the children were in bed with him), shouting at the children, and playing favourites with one of the children, which was having a psychological impact on the children. The father explained that the vibrating noise heard was in fact from a vibrating pillow, and claimed that the mother was repeatedly asking questions of the children until she got the answers she wanted. The test under s 139A is that the application is brought within a 2-year time-frame; that the proceedings be substantially similar; and if so, there must be a material change to the circumstances of either of the parties. The idea behind the legislative change was to prevent repeated litigation, which would have a detrimental impact on the children. The Judge noted that, while there was dysfunction between the parties, this was not new and it was not shown by the mother that the allegations were substantiated. Lawyer for child had spoken to the children and it was not shown that there were any concerns apart from the children not liking being shouted at and the way they were treated by the father's boarder. The Judge therefore ruled that there was no material change in circumstances and the application to reopen the parenting order was refused. Judgment Date: 23 June 2020. * * * Note: names have been changed to comply with legal requirements. * * *