Blair v Blair - [2012] NZHC 2957

ANONYMISED VERSION FOR DISTRIBUTION PURPOSES. NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2012-412-0051 [2012] NZHC 2957

BETWEEN BLAIR Appellant

ANDBLAIR Respondent

Hearing: 24 and 25 October 2012

Counsel: L A Andersen for Appellant
J E Beck for Respondent
A Chan, Lawyer for the Child

Judgment: 8 November 2012

JUDGMENT OF HEATH J

This judgment was delivered by me on 8 November 2012 at 2.00pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Medlicotts, PO Box 1179, Dunedin
Jenny Beck Law, PO Box 5821, Dunedin
Counsel:
L A Anderson, PO Box 5117, Dunedin
A Chan, PO Box 1424, Dunedin

BLAIR V BLAIR HC DUN CIV 2012-412-0051 [8 November 2012]

The appeal

[1] On 16 March 2010, after Mr and Mrs Blair had separated, the Family Court made detailed orders that they share the role of providing day-to-day care for their four children. While those arrangements have continued in respect of the three younger children, an event occurred in early November 2010 that resulted in the estrangement of the eldest child, Samantha, from her father.1 Mrs Blair sought to vary the parenting order, insofar as it applied to Samantha. At that time, Samantha was 14 years old.

[2] The variation application came before the Family Court at Dunedin on 20

May 2011. After considering the evidence and submissions over the weekend, Judge O’Dwyer gave judgment on 23 May 2011. The existing order was varied by substituting, for the shared care arrangement, a series of orders designed to facilitate contact between Mr Blair and Samantha over a period of three months, with the goal of rebuilding a strong relationship between the two of them and developing an individualised care arrangement for Samantha. The orders were made on an interim basis and the application was adjourned for further consideration after expiry of the “trial” period.

[3] The parenting orders were reconsidered at a further hearing, held in November 2011, in light of what had occurred during the trial period. While Mrs Blair was supporting her daughter’s view that contact should grow incrementally and in accordance with Samantha’s wishes, Mr Blair proposed that the Court should intervene and direct a greater level of contact to take place. Primarily, Mr Blair’s position was that a greater period of ordered contact was required to respond to what
he regarded as attempts by Mrs Blair to alienate Samantha from him.2

[4] In a judgment given on 20 December 2011, Judge O’Dwyer discharged the

interim order and made a final order that varied the parenting order of 16 March

1 See para [10] below.
2 During the appeal hearing reference was made to a number of articles in which the term “post- separation parental rejection” appears to have been used in preference to “parental…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blair v Blair

Details

AGLC: Blair v Blair [2012] NZHC 2957
Case: [2012] NZHC 2957
Decision Date: 8 November 2012

CaseChat Overview and Summary

The appeal was brought by Mr Blair against the Family Court's decision to vary the parenting order that he and Mrs Blair shared the role of providing day-to-day care for their four children. The variation application came before the Family Court at Dunedin on 20 May 2011 and the existing order was varied by substituting, for the shared care arrangement, a series of orders designed to facilitate contact between Mr Blair and Samantha over a period of three months, with the goal of rebuilding a strong relationship between the two of them and developing an individualised care arrangement for Samantha. The orders were made on an interim basis and the application was adjourned for further consideration after expiry of the "trial" period. In a judgment given on 20 December 2011, Judge O’Dwyer discharged the interim order and made a final order that varied the parenting order of 16 March 2010, to require Samantha to live in the day-to-day care of her mother, with limited contact between her and Mr Blair. Mr Blair appealed against the final parenting order made on two grounds: (a) did he receive a fair hearing, and (b) did the Judge err by giving too much weight to Samantha’s view that the Court not intervene to impose contact arrangements with her father that went beyond those identified in the interim orders of 23 May 2011? The appeal was dismissed. The court concluded that Samantha’s welfare was best served by the orders made in the Family Court. The appeal is dismissed.

Orders