Vickers v Gamble [2020] NZFC 2377

Published 10 June 2020

Enforcement order application — child care arrangement — COVID-19 — coronavirus — pandemic — lockdown — essential worker — counselling — shared care arrangement — welfare and best interests of child — Care of Children Act 2004, s 46G. A father applied for the enforcement order of an existing shared childcare arrangement of the parties' child. A temporary order had been in place for a little over a year for shared care on a 2-2-5-5 basis. An adjournment of the proceedings had been granted to allow the parties to engage with counselling services under s 46G of the Care of Children Act to help them reach a final agreement on childcare arrangements. In March 2020 the country went into lockdown as a result of the COVID-19 pandemic and the respondent mother told the father she was going to keep their child at her house for the duration of the lockdown. Her reasons were that the father, being an essential worker, faced increased exposure to the virus by being at work and the mother was concerned as she had several health conditions (as did another member of her household). She considered this put her at an increased risk and that she should be considered "unwell" for the purposes of the Principal Family Court Judge and Ministry of Health guidance which stated that it was permissible for children to move between households during lockdown — unless someone in either household was unwell. The Judge had to consider the welfare and best interests of the child in determining whether to make an enforcement order. It was not appropriate to restrict the child's access to either parent for the full 4 weeks of lockdown unless absolutely unavoidable. The Judge determined that the mother's conditions did not constitute "unwell" for the purposes of the Ministry of Health guidelines, which required a person to be actively unwell with some type of respiratory illness, not merely particularly susceptible. Had the Judge needed to decide where the child ought to reside for the duration of the lockdown an order would have been granted in favour of the father; however, since children were allowed to move between households, the Judge granted an enforcement order and directed that existing parenting order be varied to make it more workable during the lockdown. The existing directions conference which had been scheduled for the middle of the year remained in place. Judgment Date: 31 March 2020. * * * Note: names have been changed to comply with legal requirements. * * *