Mazar v Holloway [2019] NZFC 9520

Published 12 June 2020

Relocation — parenting order — care and contact arrangements — alienation — enmeshment — risk of alienation — welfare and best interests of child — Care of Children Act 2004, ss 4, 5, 6, 35, 46R, 48, 56, 71, 73, 133 & 139A — Hague Convention on the Civil Aspects of International Child Abduction 1980 — Kacem v Bashir [2010] NZSC 112, [2010] NZFLR 884. The parties' child had been born in an overseas country and, following the end of the parties' marriage, a parenting order had been put in place by a court of that country. The mother brought the child back to New Zealand in breach of that parenting order, and so faced contempt of court proceedings which could result in up to six months' imprisonment. The country was not a signatory of the Hague Convention on the Civil Aspects of International Child Abduction, under which the child would have been returned to him on application. The parents both sought s 46R Care of Children Act (COCA) orders to determine where the child should reside, and parenting orders granting day-to-day care in the respective countries. The primary consideration was the welfare and best interests of the child. Also considered were the factors under s 5 of COCA, including the child's safety, continuity in care and development, having a relationship with both parents and the child's identity (culture, language and religion). The mother had made unsubstantiated allegations of domestic violence against the father. The mother continued to state, especially in the child's presence, that the father had hit her and the child. A child psychologist assessed this as having a significant impact on the child, causing him to harbour negative feelings towards his father, and to develop a "dual persona", whereby he would adopt a certain demeanor in the presence of either parent. This could lead to alienation, whereby the child would reject the non-resident parent. The mother was assessed by her GP and psychologist as having anxiety and depression. Her ability to care for the child was determined to be impacted; she was unable to enforce age-appropriate boundaries, and the child was observed to be less well-behaved in her presence than in the father's, who was able to provide appropriate boundaries. In considering whether to grant the father day-to-day care, the Court looked at the schooling aspect for the child; contrasting the certainty of his educational future in New Zealand and the uncertainty of the schooling in the father's country of residence. The Court also considered that the father, who had a secure and well-paid job, was better able to care for the child than the mother, who was on a benefit. The Court also looked at the ability of the father to foster the child's identity through exposure to the father's culture, language, and religion. The Court came to the view that the child's rights and needs in the foreseeable future would be best met in his father's day-to-day care, and subsequently with his mother so the child could get the benefit of New Zealand schooling. The Judge made a final parenting order accordingly which included an access order in relation to the mother involving audio-visual contact and a yearly 6-week visit to New Zealand. Judgment Date: 28 November 2019. * * * Note: names have been changed to comply with legal requirements. * * *