Blair v Blair [2012] NZHC 2806 (24 October 2012)

Last Updated: 1 March 2013

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 HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2012-412-0051 [2012] NZHC 2806

BETWEEN BLAIR Appellant

AND BLAIR Respondent

Hearing: 24 October 2012

Counsel: L A Andersen for Appellant

J E Beck for Respondent

A Chan, Lawyer for the Child

Judgment: 24 October 2012

_{(ORAL) RULING OF HEATH J}

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 [24 October 2012]

[1] This is an appeal by Mr Blair against parenting orders made in the Family Court at Dunedin. It relates to the care of Mr and Ms Blair’s daughter, Samantha, now aged 15 years. I am hearing the appeal today and tomorrow.

[2] I have heard evidence this morning from a psychologist Mr Gilmore who prepared a report under s 133 of the Care of Children Act 2004. As a result of that evidence, the crucial issue seems to reduce to whether principles identified in the literature relating to post-separation parental rejection should be applied, or whether Samantha’s firmly expressed wishes that the current order not be changed should prevail.

[3] In saying that, I acknowledge that, while Mr Andersen for Mr Blair, contends that the basic facts support a characterisation of conduct as post-separation parental rejection, Ms Beck for Mrs Blair does not. She submits that the conduct that occurred in November and early December 2010, that led to a lengthy period involving a lack of significant between contact between Samantha and her father was a rejection of the existing shared-care arrangement, rather than rejection of her father. For that reason she submitted that the literature relating to post-separation parental rejection does not apply.

[4] I have been asked to rule on two evidential issues.

[5] The first relates to a report prepared by Dr Hugh Clarkson that has been put before the Court provisionally and was used extensively for the purpose of cross- examination of Mr Gilmore by Mr Andersen. Ms Beck also referred to parts of that report in her cross-examination of Mr Gilmore.

[6] Following discussions with counsel, it has been agreed that Dr Clarkson’s report and the literature produced with it can be admitted as part of the record. Again, this is on the basis that Mrs Blair’s position that post-separation parental rejection has not occurred is left open for consideration following submissions. Dr Clarkson is not required for cross-examination.

[7] The second issue concerns portions of an affidavit affirmed by Mr Blair on

16 May 2011 which were excluded from evidence in anticipation of a hearing before Judge O’Dwyer on 20 May 2011. Having excluded certain portions of that affidavit, Judge O’Dwyer permitted a replacement to be filed to depose as to matters of fact not included within the reasons for exclusion of the balance of it.

[8] Again, I have discussed this issue with counsel. Mr Andersen will seek to submit that the evidence of what occurred in November 2010, when Samantha was told by Mr Blair that his new partner was having a baby the following month, led to Samantha rejecting her father by declining to follow the terms of the existing shared- care arrangement with no significant contact occurring between Mr Blair and his daughter until the Court ordered otherwise. Ms Beck accepts that factual position, once again on the basis that the characterisation of the behaviour is a matter for submission.

[9] Given the acceptance of the existence of the primary facts that Mr Andersen wishes to rely on as a foundation for his submission that principles relating to post- separation parental rejection apply, he accepts that it is unnecessary to pursue his application to have the struck-out portions of Mr Blair’s affidavit admitted on appeal. That application is not pursued.

[10] I reserve leave for Mr Andersen to raise the admissibility issue again should the way in which submissions are made on behalf of Mrs Blair depart from the

_{understanding that I have recorded in this ruling.}

P R Heath J