A father who disregarded a Family Court order by failing to return one of his children to his former partner has had his conviction upheld on appeal.
Police brought the appeal as a test case after the High Court quashed the man's conviction for breaching a parenting order.
The Court of Appeal today ruled that the original conviction should not have been quashed and ordered the man be convicted and discharged.
The parenting order was made in June 2009 after the father and his former partner split acrimoniously.
The order gave the mother day-to-day custody of their four primary school-aged children, while the father had custody every second weekend from Friday afternoon until Monday morning, when the children were to be returned to school or kohanga reo.
The parents were to contact a third party if there were any urgent issues preventing them from fulfilling the terms of the order.
The father was charged with two counts of breaching the order after one of the children was not at school at pick-up time on Monday, August 30 last year.
The mother contacted police, who found the child at the man's home.
The father argued in court that the child had boils and had to be taken to a doctor, which was confirmed by a doctor's note. He said he was unable to contact the third party as required by the order.
Judge Paul Geoghegan found him guilty of contravening the order without reasonable excuse and with intent to do so, saying there was no reason the child could have not been returned to his mother.
The father appealed to the High Court, where Justice Peter Woodhouse found Judge Geoghegan was entirely justified in concluding there was no reasonable excuse.
However, he also found the judge applied a test less rigorous than that required to prove intent to contravene the order, saying there was no clear separation of intent and motive.
He ordered the father's conviction be quashed.
Police appealed to the High Court, arguing Justice Woodhouse was wrong to separate out intention and motive.
Police counsel David Boldt said it was sufficient to establish the defendant deliberately acted or failed to do something that breached the order, knowing that act or omission would result in the the order being breached.
He said the appeal had been brought as a test case and he was happy for the father to be convicted and discharged accordingly.
The father was not present for the hearing but submitted three affidavits.
Court of Appeal justices Lynton Stevens, Ronald Young and Pamela Andrews found Justice Woodhouse erred in law in his interpretation of intent and ordered the father be convicted and discharged.
"Proof of motive in this context is neither necessary nor desirable from a policy perspective,'' they said.
