Court/Judicial body: Family Court, New Plymouth
Date: 25 February 1999 CRC
Provisions: Article 9: Separation from Parents
Domestic provisions: The Guardianship Act 1968, Sections 15, 23
Background: The parties in this case were the parents of a two-year old child, who had separated before the child was born. The father asked the Court to grant him two hours of supervised access to the child per week, but the mother was vehemently opposed to such access. A psychological test concluded that, although he had previously used drugs and alcohol to a harmful extent, the father presents little direct risk to the child as he hadn’t used drugs and alcohol in the preceding two months. Nonetheless, the mother said that she would not cooperate in any way if the court granted access to the child and would vehemently obstruct any court order to that effect.
Issue and resolution: Shared parental responsibilities. The Court denied the father’s application for access, holding that the practical difficulties as a result of the mother’s lack of cooperation would be “insurmountable”, thus making a warrant to grant the father access to the child not in the child’s best interests.
Court reasoning: The Guardianship Act of 1968 empowers the Court to grant a parent who does not have custody of his child access to the child subject to such conditions as the court sees fit. In exercising that discretion, the Court must regard the welfare of the child as the first and paramount consideration. The Court said that in principle, it must be presumed that both parents should be end to access to their children and that the contact will only be denied if it is established on the balance of probabilities after weighing all factors, that such access or contact is not in the child’s best interests, as required by Article 9 of the CRC. In this particular case, it was found that the father is not a risk to the child, his intention to have access to the child were genuine and he had taken steps to reform himself, however, the Court denied access to the child given the mother’s very strong opposition, noting that the mother was extremely distrustful and hostile towards the father, and willing to sabotage any court-approved access. The Court stated that “for access to work, it needs some element of cooperation from [the mother] or at least a respect for the Court orders”, and that the only way for such access to work is through an enforcement action. Because the Court concluded that such an enforcement action would not be in the child’s best interests, access was denied.
Excerpt citing CRC and other relevant human rights 1. “Section 15 of the Guardianship Act 1968 empowers the Court to grant a parent who does not have custody of his child access to the child subject to such conditions it thinks fit. In exercising its discretion whether or not to grant such an application, the Court is directed, by s 23 of the Act, to: . . . regard the welfare of the child as the first and paramount consideration.” 2. “In my view, the starting point must be a presumption that both parents are end to contact with their child and that contact will only be denied if it is established on the balance of probabilities that such access or contact is not in the child’s best interests. This fits in with the purport of art 9(3) of the United Nations Convention on the Rights of the Child, which provides that: Parties shall respect the right of the child who is separated from one or both parents to maintain personal relationships and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”
CRIN comments: CRIN believes this decision is consistent with the CRC. Under Article 9 CRC, the child has the right to maintain contact with both parents, except in cases where such contact is not in the child’s best interests. That being said, it is up to the national authorities and courts to examine what the best interests of the child might require in each individual case depending on its particular facts.
Citation:  NZFLR 439; 1999 NZFLR LEXIS 64, *6
Link to Full Judgment: Available on LexisNexis at 1999 NZFLR LEXIS 64, *6