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 the two children are returned as soon as possible to the jurisdiction of New Zealand.

[5]      The respondent has ignored that judgment of the High Court.  Indeed, he has gone further and pursued a “petition for custody and guardianship” of the younger children in the Family Court in Noida, India, although it appears that this may have originated before the judgment of Mallon J.  However, the affidavit of the applicant states that the case in India was heard on 4 February 2012 and the Court ordered the three children were to live with her, having school holidays in India with their father. So the applicant had orders in her favour in both countries.   A translation of the relevant order issued by the Indian Court is:

It is ordered that the three children, [named], shall live with their mother. During the holidays they shall travel to India and live with their father, and shall return seven days before the end of the holiday period. Travel expenses shall be borne by the father.

[6]      The evidence is that the respondent appealed the decision of the Indian Court, but failed.  He was directed to return the children to New Zealand within 15 days of

10 May 2012.   The respondent has failed to comply with the orders of the Indian Court and ignored the order of the High Court of New Zealand made by Mallon J. The applicant deposes that she has been told that the respondent is intending to pursue further appeals in India.

[7]      There is no question that the respondent is in contempt of the orders made by the High Court of New Zealand.  He has failed, and continues to fail, to comply with that order of which he is well aware.  It has been served by email upon him, as well as having been served upon his New Zealand solicitors.

[8]      The obvious difficulty with an arrest order under the High Court Rules is that the respondent is not within the jurisdiction of New Zealand.  It would have no effect unless he were to return to this jurisdiction.  But it can still be issued.  Yet such an order requires that a person be brought before the Court at a time and place specified in the order.  Until the respondent comes within the jurisdiction on a known date, there could be difficulties in complying with the strict requirements as to him being brought before the Court at a defined time.  However, I think that can be overcome by the order directing that he be brought before the High Court at Wellington at

10am on a date fixed at no more than 72 hours after his arrest in New Zealand.

[9]      Obviously, the arrest order could not be executed unless the respondent came within New Zealand jurisdiction.  But it can be issued.  I am satisfied the terms of the original Court order were clear and unambiguous.   The respondent has been served with the order and has not complied with it, in a manner which shows wilful and inexcusable disregard for the order.  Whilst his actions are occurring in India, nevertheless  the  contempt  and  disregard  relates  to  compliance  with  a  valid New Zealand High Court order.

[10]     I do not think at this stage that it is necessary for there to be an order that the respondent be committed to prison. What will occur upon his arrest is that he will be brought before the High Court and thereafter may be committed to prison at that time pursuant to r 17.85 of the High Court Rules if he then continues to disobey the original Court order.

[11]     I wish to add that according to the judgment of Mallon J, the children have New Zealand nationality and are under the guardianship of the New Zealand High Court.  It follows that this Court has the obligation and jurisdiction to deal with and protect  its  infant  citizens  wherever  they  may  be.    Just  as  Mallon J  sought  the assistance  of  judicial  and  administrative  bodies  in  the  Republic  of  India,  I  do likewise.

[12]     I  direct  that  the  solicitors  for  the  applicant  provide  to  the  New Zealand Ministry of Foreign Affairs copies of this judgment and that of Mallon J, and of the decision of the Indian Court, so that these can be transmitted to the New Zealand High  Commission  in  New  Delhi,  India.    The  purpose  for  this  is  so  that  the High Commission  can  enlist,  through  its  diplomatic  sources,  the  aid  of  Indian authorities to secure the return to New Zealand of the New Zealand citizens, being held in that country in defiance of orders of the New Zealand High Court.

[13]     Accordingly, there will be issued in form E9 an arrest order, authorising a

Sheriff at Wellington to:

(a)       arrest the respondent (the liable party);

(b)bring the liable party before this High Court at Wellington at 10am on a  date  no  longer  than  72  hours  after  the  liable  party’s  arrest  in New Zealand; and

(c)       keep the liable party in prison from the time of arrest until that time.

[14]     It is not a requirement that the arrest order be served upon the respondent at this stage.

[15]     Costs are reserved.

J W Gendall J

Solicitors:

Buchanan Gray, Wellington for applicant