Kurtis v Edwardson [2020] NZFC 342

Published 12 February 2020

Application for leave to apply for a variation of a parenting order — material change in circumstances — new circumstances — discharge of additional guardianship order — welfare and best interest of child — drug issues — Care of Children Act 2004, ss 4, 5, 6 & 139 — Family Court Rules 2002 — Roundtree v Tipsanich [2015] NZFC 5488; [2016] NZFLR 99. The applicant mother sought leave to apply for a variation of a parenting order. In August 2018 her child had been placed in the day-to-day care of the paternal grandfather (along with another child of the applicant). The children had been placed with the grandfather as the applicant had issues with drug use, had exposed the children to domestic violence and had no stable accommodation. The applicant also sought removal of the grandfather as an additional guardian of the children. Section 139A(1) of the Care of Children Act (the Act) prevents the commencement of any new proceeding relating to guardianship parenting orders or variation of orders without the leave of the Court, if the new proceeding is substantially similar to a previous proceeding and is made within two years of the previous proceeding. The Court will grant leave if the applicant can show there has been a material change in circumstances of either a party or the child. As with all decisions under the Act, s 4 demands that the welfare and best interests of the child or children are the paramount consideration. The applicant argued there had been a change in circumstances as she could prove she had not used drugs in three months. She also argued that as the grandfather had increased her contact with the children he either accepted that she had addressed her lifestyle and drug issues to a point where she was safe to have the children in her care, or he had made a poor decision in allowing that to happen. The Judge did not consider that this was enough to show a sufficient change in circumstances from those existing at the time the order was made. Firstly, where there are issues of drug dependence, the well-accepted international therapeutic model provides there should be abstinence from drugs for at least 12, if not 18, months to show a real change. Secondly, increasing contact between the applicant and the children as their mother improved her life was a fair response from the grandfather. It was found that although there were material changes in circumstances, they were limited only in relation to contact . To be successful in an application for leave to apply for day-to-day care or to discharge the additional guardianship order the least the applicant would have to show would be: proven abstinence from drugs for a minimum of a year, evidence of safe accommodation for a similar period, and proven avoidance of exposure of herself or the children to family violence. Section 4 would further require some indicative evidence that would support a conclusion that the separation of siblings was in their welfare and best interests. The application for leave under s 139A was declined. However, the grandfather indicated he would be willing to negotiate a variation to the current contact arrangements. This could be done between the parties without the need of any further proceedings. Judgment Date: 17 January 2020. * * * Note: names have been changed to comply with legal requirements. * * *