Am v PM - [2012] NZHC 1440

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 THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-2303 [2012] NZHC 1440

UNDER the Care of Children Act 2004

BETWEEN AM Applicant

ANDPM Respondent

On papers

Judgment: 22 June 2012

JUDGMENT OF GENDALL J

[1] This was an interlocutory without notice application, seeking orders that the respondent be arrested and committed to prison, based upon his contempt of the order of the High Court dated 7 November 2011 made by Mallon J.

[2] The background is set out in the judgment of Mallon J. The parties are the parents of three children, then aged 15, 11 and 5 years. Pursuant to parenting orders made in the Family Court of New Zealand on 12 August 2011, the applicant (the mother) has the day-to-day care of the children and exclusive responsibility for their living arrangements. The children were to spend school holidays with their father in India and he agreed to return them to the mother’s care in New Zealand. The children travelled to India to be with their father and were required to be returned to
New Zealand on 20 October 2011. The eldest child was returned, arriving on that

AM v PM HC WN CIV-2011-485-2303 [22 June 2012]

date, but the respondent kept the two younger children in India. The mother was told by the respondent he was not going to return them to New Zealand. According to the judgment of Mallon J, the children’s nationality is New Zealand.

[3] As India is not a signatory to the Hague Convention, although the children were wrongfully retained in India, the provisions in the Care of Children Act 2004 relating to Hague Convention matters could not be invoked to facilitate the children’s return. Mallon J therefore placed the children under the guardianship of the High Court pending further order of this Court. She made the following additional orders:

b.That the Respondent [father] make immediate arrangements to ensure that the two children are returned to the jurisdiction of New Zealand straightaway;

c.That upon the return to New Zealand all three children are to reside with their mother, the Applicant in the Wellington area until further order of this Court or of the Family Court;

d.That upon the return to New Zealand of the two children their passports and travel documents be handed to the Applicant [mother] for safe keeping until further Order of this Court or of the Family Court;

e.A direction … to the effect that if the Respondent does intend to make an application to vary or discharge the current Parenting Order then he be permitted to do so only once the children have been returned back into the Applicant’s care in New Zealand.

[4] Mallon J concluded by inviting all judicial and administrative bodies in the Republic of India to render assistance in ensuring that…

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 Am v PM

Details

AGLC: Am v PM [2012] NZHC 1440
Case: [2012] NZHC 1440
Decision Date: 22 June 2012

CaseChat Overview and Summary

This case involved an application by AM, the mother, seeking the arrest and imprisonment of PM, the father, for contempt of a High Court order. The dispute centred around the non-return of the parties' two younger children to New Zealand after their school holidays in India, in defiance of both a High Court order and a Family Court order in India. The High Court of New Zealand was tasked with enforcing its order given India's non-participation in the Hague Convention, which would have facilitated the children's return.

The legal issues before the court were whether the father's actions constituted contempt of court and if the court had the jurisdiction and means to enforce its orders despite the father's location in India. The court had to determine whether it could issue an arrest warrant for the father and if the contempt order could be enforced upon his return to New Zealand. The court also had to consider the practicalities of executing the arrest order given the father's physical presence outside New Zealand's jurisdiction.

The court ruled that the father's actions were indeed in contempt of the High Court's order. Despite the father's location in India, the court held that it had the jurisdiction to enforce its orders as they pertained to New Zealand citizens. The court issued an arrest order, authorising the arrest of the father upon his return to New Zealand, and mandated that he be brought before the court within 72 hours of his arrest. The court also sought the assistance of diplomatic channels to facilitate the return of the children to New Zealand. The court found that while the arrest order could not be executed in India, it could be issued and would take effect upon the father's return to New Zealand. The court reserved costs pending further developments.

In summary, the court issued an arrest warrant for the father and directed the mother's solicitors to provide relevant court documents to the New Zealand Ministry of Foreign Affairs for transmission to the New Zealand High Commission in India. The purpose of these actions was to secure the return of the children to New Zealand, in compliance with the court's orders.

Orders