SG v DSG
[2019] NZHC 2579
•4 October 2019
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE judgments.
ORDER PROHIBITING PUBLICATON OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-1137 [2019] NZHC 2579
UNDER the Care of Children Act 2004 BETWEEN
SG
Plaintiff
AND
DSG
Defendant
Hearing: 30 September and 1 and 2 October 2019 Counsel:
MA Twentyman and AM Sanders for plaintiff No appearance for or on behalf of defendant U Patel for children
HJ Ellis for Oranga Tamariki – Ministry for Children
Judgment:
4 October 2019
Reasons:
11 October 2019
REASONS JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 11 October 2019 at 10 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar……………………… Date…………..………
Solicitors: Morrison Kent, Auckland (D Dunbar)
Crown Law, Wellington (J Gorman)
To:U Patel, Auckland H Ellis, Auckland
SG v DSG [2019] NZHC 2579 [11 October 2019]
Contents
Introduction [1]
Factual background
Introduction and marriage [13]
L is born – June 2013 [17]
The twins are born - 2014 [22]
The family travels to India and L remains there - 2015 [23]
L does not return - 2016 [28]
The family returns to India - 2017 [29]Events in India – separation and legal proceedings [32]
Events in New Zealand – commencement of these proceedings [43]
Interim orders placing the children under the guardianship of the
High Court [51]
Mr G’s further legal proceedings in India [54]
Social worker and psychologist reports [63]
Observations on the evidence [73]
The law
Introduction [82]
Jurisdiction [83]
Legal principles applying to guardianship applications [88]
Were the children unlawfully removed from New Zealand? [98]
What best ensures the children’s welfare and best interests?
Introduction [102]
Protection from violence [103]
Parental responsibility [116]
Ongoing consultation and cooperation between parents [119]Continuity in care [121]
Relationship with both parents and family group [124]
Child’s identity [129]
Conclusion [135]
Introduction
[1] These proceedings concern three young boys, who I will refer to as “L" (who is six years old), and his younger twin brothers “P” and “T” (who are four and a half years old). The children were born in New Zealand and are New Zealand citizens.
[2] All three children are presently in India. L has been in India since August 2015 (so for the last four years). The twins have been in India since October 2017 (for nearly two years). The children’s mother, the plaintiff (Mrs G) says that they were removed from New Zealand and are retained in India by her husband (the defendant, Mr G) without her consent. She says, in effect, that Mr G engaged in a deliberate plan to lure her and the children to India, whereupon he took steps to remove them from her custody.
[3] In November 2017, and without Mrs G’s knowledge or consent, Mr G arranged for the three boys to be placed in a boarding school in India. At that time, L was only four and a half, and the twins nearly three years old. Mr G returned to New Zealand. From then and until more recently, the children have been in India while both parents have resided (separately) in New Zealand. Since being placed in boarding school in 2017, the children were moved in June 2018 to a different school in India as boarders; from December 2018, changed to day pupils at that school and commenced living with Mr G’s mother (their paternal grandmother); and in more recent months, moved to a third school in India and continued to reside with their paternal grandmother. Mr G returned to India in February this year, and is now residing with his mother and the three children in Ahmedabad, Gujarat.
[4] In late 2017 and early 2018, before she left India, Mrs G commenced a range of actions in the Indian courts to try and have her children returned to her. For various reasons, those actions have not or could not be pursued. Mr G also commenced custody proceedings in India in late 2017, but the Family Court in India subsequently declined jurisdiction, as the children are New Zealand citizens and at that time, the parents were both living in New Zealand. In February 2018, Mrs G returned to New Zealand and shortly thereafter, commenced these proceedings, seeking orders under the Care of Children Act 2004 (the Act) for orders placing the children under the
guardianship of the High Court of New Zealand. She is fearful of returning to India given her mother-in-law has filed proceedings against her there, alleging that Mrs G assaulted her when Mrs G was last in India. Mrs G has taken advice on these matters, and is concerned that given those proceedings, if she returns to India, her passport will be removed from her.
[5] Mr G applied in June 2018 to have these proceedings dismissed on forum non conveniens grounds. That application was dismissed by Courtney J in August 2018.1 Mrs G’s application for interim guardianship orders (pending the substantive hearing) was heard by Edwards J in February 2019. In a judgment delivered on 20 February 2019, Edwards J made interim guardian orders, meaning that from that date, the children have been under the guardianship of the High Court of New Zealand.2 In a subsequent judgment, she also ordered Mr G to take all reasonable steps to ensure the children’s prompt return to New Zealand. He has not done so.
[6] Mrs G’s substantive application for guardianship orders came before me in a three-day hearing commencing on 30 September 2019. Mr G was to participate in that hearing, and in the lead up to it, he had filed a substantial volume of affidavit evidence, and he (and other witnesses to be called on his behalf) were to appear by way of AVL from India to be cross-examined. But on the last working day before the hearing, Mr G informed the Court that he no longer intended to participate.
[7] Given the strict rules of evidence do not apply to proceedings under the Act,3 during the hearing, I took into account and reviewed all Mr G’s evidence, despite the deponents not being available for cross-examination. Mrs G gave evidence, and she was also cross-examined by lawyer appointed for the children and counsel for the Chief Executive of Oranga Tamariki – the Ministry for Children (Oranga Tamariki), as well as answering questions from the Court. I also heard evidence from a social worker from Oranga Tamariki (Ms Windle), as well as evidence from a psychologist appointed by the Court to report on the children’s welfare and best interests (Dr Rai).
1 SG v DSG [2018] NZHC 2209.
2 SG v DSG [2019] NZHC 218.
3 Family Court Act 1980, s 12A.
[8] At the conclusion of the hearing, I confirmed that I intended to make guardianship orders in relation to the three children to facilitate their return to New Zealand. I was satisfied such orders best ensured the children’s welfare and best interests. I made formal orders to that effect in a judgment delivered on 4 October 2019. This judgment sets out my reasons for making those orders.
[9] It is important to note at the outset that the orders placing the children under the guardianship of the High Court is a “stepping stone” only to any final determination as to their ongoing care. A condition of the orders I have made is that upon the children’s return to New Zealand, Mrs G is to commence proceedings in the Family Court, where ongoing care arrangements for the children will be determined. At the heart of those proceedings, like these, will be the children’s welfare and best interests. That may involve them residing in New Zealand on an ongoing basis, or it may be considered more appropriate for them to return to live in India. Accordingly, the orders I have made should not be regarded as the “final say” on the children’s care over the medium to longer term.
[10] Finally by way of introduction, as noted earlier, Mr G did not comply with Edwards J’s interim orders to return the children to New Zealand. There is unfortunately no reason to expect he will comply with the further orders I have made. It therefore seems likely Mrs G will need to seek the assistance of the Indian courts in order for the children to be returned to New Zealand.
[11] While New Zealand is a contracting state to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), India is not. The orders I have made are accordingly not directly enforceable in India. I was provided with Indian case law which nevertheless demonstrates that, subject to any ongoing inquiry as to the children’s welfare and best interests, Indian courts do respect orders of the kind made in this case by foreign courts. As I noted in my judgment of 4 October 2019, the Court accordingly respectfully invites all Judicial and administrative bodies in the Republic of India to render assistance ensuring that the children L, P and T are returned as soon as possible to the jurisdiction of New Zealand.
[12]The balance of these reasons for judgment is structured as follows:
(a)First, I provide an overview of the factual background. There was a significant body of evidence before me which was not directly relevant to the issues I must determine. For example, and as is not uncommon in cases like this, there was a lot of evidence about disputes and disagreements between the parents (and their respective families). I have not addressed this evidence in this judgment, unless it is relevant to the issues I must determine.
(b)Second, I provide an overview of the reports and evidence given by the Oranga Tamariki social worker (Ms Windle), and the Court-appointed psychologist (Dr Rai).
(c)Third, I provide some broad observations on the evidence generally, and the credibility of the witnesses who gave evidence before me.
(d)Fourth, I provide an overview of the legal framework which applies in a case of this kind.
(e)Finally, I discuss the issues for determination, and provide my reasons for making the orders I did in my 4 October 2019 judgment.
Factual background
Introduction and marriage
[13] Mr G’s family home is in Ahmedabad, Gujarat.4 He moved to New Zealand approximately 17 years ago, in June 2002. From that time, and until recently, he lived as a boarder with Mrs Gillian Warwick at her home in Epsom, Auckland. While Mr G returned to India from time-to-time over the period 2002 to 2012, he resided and worked in New Zealand as an accountant. He gained permanent residency in New Zealand in 2005.
[14] Mrs G’s family home is in Degana, Rajasthan (about a two-day car trip from Ahmedabad). Mr and Mrs G were married in India in May 2010. It was an arranged
4 His extended family also have a home in Jodhpur, Rajasthan.
marriage. Prior to then, Mrs G had been working as a secondary school teacher in Jodhpur.
[15] Upon her marriage to Mr G, Mrs G ceased working as a teacher, and in October 2010, she and Mr G returned to New Zealand. They continued to reside with Mrs Warwick, in a minor dwelling or granny flat attached to her Epsom property.
[16] Over the ensuing year, Mrs G underwent IVF treatment at Greenlane Hospital, but unfortunately this was unsuccessful. Subsequently, in October 2012, Mr and Mrs G travelled to India to undertake further IVF treatment. Happily, that treatment was successful.
L is born – June 2013
[17] L was born in Auckland Hospital on 6 June 2013. There is no dispute that as a result, L is a New Zealand citizen.
[18] Reflecting the close relationship between Mr and Mrs G, and Mrs Warwick, L was given Mrs Warwick’s Christian name, Gillian, as one of his middle names.
[19] Mr G’s mother travelled from India a few months before the birth and stayed with the couple for nine months to help Mrs G with the new baby. Mrs G said that her mother-in-law was a great assistance at this time.
[20] There is no doubt that the day-to-day parenting of L fell to Mrs G. This is not a criticism of Mr G, but reflects the fact he was working fulltime as an accountant, and also at least for some time after L’s birth, also worked as a taxi driver on Fridays and Saturdays. Mrs G described Mr G as a fairly “hands-off” father.
[21] Mr G’s mother left New Zealand in December 2013. Mrs G said that her husband was anxious to quickly recommence IVF treatment in the hope of having more children. To this end, the parties travelled to India in March 2014 for a second round of IVF treatment. Mrs G lived with her mother-in-law and sister-in-law (for approximately four months) while undergoing IVF. Again, those efforts were successful and Mrs G became pregnant with twins.
The twins are born - 2014
[22] The twins, P and T, were born at Auckland Hospital on 16 December 2014. Again, Mr G’s mother came to New Zealand for nine months to help with the children. Mrs G gave evidence that she was getting only a few hours’ sleep each night at that time, but with the assistance of her mother-in-law during the day, she was coping and was not stressed. I gained the impression, however, that she was somewhat defensive in responding to questions about how she was coping at this time, and did not want to accept that it had been a stressful time. I observe that it would have been very natural and common for any mother with three children under the age of two years old to find it somewhat difficult at times. It certainly implies no criticism of Mrs G or her parenting skills.
The family travels to India and L remains there - 2015
[23] In August 2015, Mrs G, her mother-in-law and all three children travelled to India. At that stage, L was two years four months old, and the twins eight months old. Mrs G said that she had overhead her mother-in-law talking to Mr G’s sister (Mrs G’s sister-in-law), saying that she wanted to take Mrs G back to India for a time “to teach her how to be a good daughter-in-law”. Mrs G said she didn’t want to go back to India with her mother-in-law, but Mr G insisted she did. Mr G remained working in New Zealand, though it was agreed that he would travel to India in November 2015 for the Diwali celebrations.
[24] What occurred during Mrs G’s time in India is the subject of some dispute. Mrs G was anxious to attend her sister’s wedding in Jodhpur, but when he arrived, Mr G insisted she travel with him to his family home in Ahmedabad. In response to Mrs G’s continued requests that she be allowed to attend her sister’s wedding, Mrs G says Mr G struck her three or four times across the face and twisted her left arm up her back. Mrs G said this was the first – and only – time Mr G had been physically violent to her.
[25] Mrs G did not get to attend her sister’s wedding. Mrs G said that Mr G said that the plan was for Mrs G to stay with his mother-in-law and the children in India, while he returned to New Zealand. Mrs G did not want to do this, and wanted to return
to New Zealand as a family, but Mr G said that if she wanted to return to New Zealand, L must stay behind with his grandmother for a time. Mr G’s evidence was that this was because Mrs G was not coping with the three children.
[26] Mr G also says that during their time in India, Mrs G was inattentive towards the children and was violent towards them, slapping pinching and yelling at them. He also alleges that she left them for periods of time, despite breast feeding the twins. I address these general allegations of violence and abusive behaviour by Mrs G towards her children, all of which were put to Mrs G in cross-examination, later in this judgment. I note at this point that as Mr G was not in India for the whole of this period, his evidence is based in part on what he says his mother told him. His mother has sworn a number of affidavits in support of her son in these proceedings, stating that she was concerned about Mrs G’s ability to properly take care of the children. She describes one occasion when she says she found the children locked in a room, covered in faeces with their nappies unchanged, while Mrs G slept on a couch next door. Mrs G strongly refutes this.
[27] Mrs G ultimately agreed to return to New Zealand with Mr G and the twins on the basis that Mr G assured her L would return to New Zealand in a few months’ time, and before his third birthday in June 2016. Mr and Mrs G returned to New Zealand with the twins on 23 November 2015.
L does not return - 2016
[28] Mrs G says she became more anxious as the months passed in 2016 but there was no sign of L returning to New Zealand. She said that at this time, she was told by Remuera Kindergarten, where L had a place reserved, that Mr G had telephoned them to say L would not be coming back to New Zealand. Mrs G said this was the first time she had heard this. She confronted Mr G, who said they would shortly all go back to India to live. Mrs G did not want this, and sought advice from Shakti Women’s Refuge, a women’s refuge with a focus on Asian women. Their legal adviser suggested Mrs G take legal action, but she said she did not do so, as she wanted to keep family life intact. Shakti also introduced Mrs G to Family Start, a support organisation for women and children. Mrs G explained that Family Start helped her
enrol the twins at ABC Childcare centre in Auckland, and also arranged counselling for Mrs G. Mrs G said that at this time, she was increasingly stressed and concerned at her ongoing separation from L.
The family returns to India - 2017
[29] Mrs G says that at some point in early 2017, Mr G told her that he had purchased a new business in Chandigarh in India, and that in a few months, the family would move back to India for the business and to be with L. In late August 2017, the family moved out of Mrs Warwick’s residence in Epsom to a rental property in Papatoetoe, to be closer to Mr G’s then place of employment. Mrs G says that Mr G told her around this time that his mother required urgent back surgery, and the family would therefore need to travel to India as soon as possible in order to assist her. Mrs Warwick, to whom the family remained close, gave evidence that she understood from her discussions with the couple at the time that they were moving back to India to live, as a result of the new business and to be able to assist Mr G’s mother in relation to her back surgery.
[30] Mr G, on the other hand, says that by early October 2017, the parties had agreed to separate and to return to India with the twins, and that Mrs G had agreed he would have full custody of the children. He says each party’s family had been told that they would separate when they got back to India. He says terms of separation were being discussed. An affidavit filed by a lawyer consulted by Mr G says that Mr G contacted him in 2017, and said that he and his wife intended to return to India later that year, that they would separate and they would arrange for the children to attend a private boarding school.
[31] Again, Mrs G disputes this, saying that when Mr G raised with her shortly after arriving in India that he intended to separate from her, this came as a great surprise and shock. I note that there is no evidence that Mrs Warwick was told of the proposed separation, which is somewhat surprising if it had already been agreed prior to the couple leaving New Zealand, given the very close relationship she had with the couple by that time, and Mrs G in particular. Rather, Mrs Warwick gave evidence that she
went to the airport to see the family off, believing they were going to India to live together as a family.
Events in India – separation and legal proceedings
[32] Mr and Mrs G and the twins travelled to India on 14 October 2017. At that point, L was four years, four months old, and the twins two years, ten months old. Rather than staying with family, the parties and the children first stayed in a hotel. Mrs G gave evidence of being overjoyed to be reunited with L and that the time with him was wonderful. Shortly thereafter, they moved to a rented property in Ahmedabad. Mr G attended to the drop off and pick up of the children from a pre- school. Mrs G said that over the ensuing days, Mr G sometimes returned with L, and sometimes he did not.
[33] On or about 8 November 2017, and without Mrs G’s involvement, Mr G filed a petition in the Ahmedabad Family Court for divorce and custody of the children. I interpolate to note that there are two means of applying for divorce in India; either jointly by consent, or a sole application. It is somewhat unusual that, if the parties had already agreed to separate as Mr G alleges, the application for a divorce was not filed on a joint basis.
[34] Mrs G says that by mid-November 2017, Mr G had told her he intended to separate and divorce her. He had also not brought the children back to the rented accommodation, and from that point, Mrs G did not know where they were staying. There were discussions between Mr and Mrs G’s families, which evidently became quite heated. There also appears to have been discussions with a lawyer as to a separation. But nothing was resolved. Mrs G lodged a complaint with the Police in Jodhpur about Mr G removing the children, but was told it needed to be lodged in Ahmedabad. She subsequently spoke to Police in Ahmedabad and through her lawyer, sought the assistance of the New Zealand High Commission in New Delhi. She also contacted the Women’s Commission in Gandhinagar.
[35] On 18 November 2017, Mr G left India to return to New Zealand. Mr G’s evidence is that he did so on the advice of his lawyer. While privilege has not been waived in that advice, this seems somewhat unusual, given the then dispute between
him and Mrs G as to custody of their children, and his extant proceedings before the Ahmedabad Family Court. Be that as it may, Mr G said that at that time, the children were put by him into the care of his mother and sister.
[36] On 20 November 2017, and unbeknown to Mrs G, the three children were placed as boarders in the Divine Care School in Mehsana (about a two-hour bus trip from Ahmedabad). At this time, L was four years, five months old, and the twins, two years, eleven months old.
[37] On 21 November 2017, and unaware that Mr G had left India, Mrs G filed the equivalent of an application for a protection order in India. It appears these proceedings were never progressed; Mr G’s return to New Zealand meant he was unable to be served.
[38] Through the Ahmedabad Police and the New Zealand High Commission, Mrs G became aware that the children were at the Divine Care School as boarders. On 26 December 2017, she travelled to the school, but because she was not listed on the enrolment form, she was not permitted to remove them. The school permitted her to have limited contact with them.
[39] It appears that despite the ongoing dispute between the families, in early 2018, Mrs G lived for a time at her mother-in-law’s home in Ahmedabad. The mother-in- law and sister-in-law sought assistance from the Police at this time, but were told that Mrs G, as Mr G’s wife, had a right to live at the family home.
[40] In January 2018, Mrs G filed an application under the Indian Criminal Code before the Magistrates Court in Mehsana, for a search warrant against the principal of the Divine Care School, and her mother-in-law and sister-in-law, on the basis the children were at the school without her consent.5 Mr G filed a “guardianship affidavit” in those proceedings, appointing his mother and sister “permanent legal guardians” of the children. There is no evidence before me as to the legal effect of that document. In a judgment given by the Mehsana Magistrates on 30 January 2018, the Court noted that such a warrant requires the confinement of a person and that such confinement
5 This appears to be akin to an application for habeas corpus.
amounts to an offence. The judgment noted that “simply the fact that the applicant wants custody of her sons does not give grounds for the Magistrate to issue a search warrant”. Mrs G’s application was dismissed.
[41] On 14 February 2018, Mrs G’s mother-in-law lodged a complaint against Mrs G alleging assault. There is very little evidence before me about this complaint or the court proceedings in relation to it. But what documentation has been produced shows that it was filed with the Civil Court in Ahmedabad, but its case-type is referenced as “criminal misapplication”. Mr G refers to the matter in his affidavit as a “criminal complaint”, and the proceedings as a “criminal matter”. Mrs G has not participated in these proceedings and it is not clear how or to what extent they have progressed. She said that she has taken advice in India in relation to the proceedings. It is these proceedings which give rise to Mrs G’s concerns at returning to India.6
[42] On 26 February 2018, Mrs G visited the children again at the Divine Care School. She said she was shocked at the state of the children, who seemed in shock themselves. She said she felt helpless and unable to protect them. The following day, she returned to New Zealand, to try to take steps through the New Zealand court system to have the children returned to her care.
Events in New Zealand – commencement of these proceedings
[43] On 1 April 2018, the Divine Care School informed Mrs G that the children had not returned there after the holidays. Despite further emails from Mrs G in April 2018 pleading for details of whose care the children had been released into (and the threat of further legal proceedings), she received no reply. On 5 May 2018, Mrs G reported the children missing to the New Zealand Police, and was advised that Mr G was in fact back in New Zealand. On 11 May 2018, Mrs G commenced these proceedings, by way of a without notice application for an order placing the children under the guardianship of the High Court, and associated orders for their return to New Zealand.
[44] On 15 May 2018, Muir J directed that Mrs G’s application be dealt with on an on notice basis. Mr G was duly served. At the first call of the hearing on 24 May
6 See [4] above.
2018 before Lang J, Mr G agreed that Mrs G could have Skype contact with the children.
[45] On 2 June 2018, Mrs G had her first Skype contact with the children. On the same day, Mr G travelled back to India. He arranged for the children to attend a new school in Bangalore (the Global International School), again as boarders. The Divine Care School had apparently refused to accept the children back after Mrs G’s threats of legal proceedings. At this time, L was five years old, and the twins three years, six months old. It is not in dispute that Mrs G was not consulted about the children moving to the Global International School. Bangalore is some days travel from Ahmedabad, and Mr G’s mother arranged rental accommodation in Bangalore so that she could visit with the children.
[46] On 15 June 2018, Mr G filed an application to dismiss or stay these proceedings on forum non conveniens grounds. That proceeding was heard by Courtney J on 17 August 2018, and by judgment dated 27 August 2018, she dismissed Mr G’s application.7
[47] On 2 November 2018, the Family Court at Ahmedabad issued a decision on Mr G’s application for divorce and custody (which had been filed in November 2017). The Court dismissed the application for want of jurisdiction, noting that:
When both the parties are not living in Ahmedabad and minors are not the citizens of India and parties are not permanently residing in Ahmedabad then this Court has no jurisdiction. Hence, this application [Mrs G’s application that the Court had no jurisdiction] deserves to be allowed and the main application [Mr G’s application] consequently requires to be rejected for want of territorial jurisdiction.
[48] On 22 November 2018, Ms Patel was appointed lawyer for the children in these proceedings.
[49] On 29 November 2018, Associate Judge Sargisson made timetabling directions in the substantive proceedings and the hearing of Mrs G’s application, then estimated to take seven days, was allocated a fixture commencing on 30 September 2019. On
7 SG v DSG, above n 1.
7 December 2018, Mrs G filed an interlocutory application for interim orders placing the children under the guardianship of the Court and for their return to New Zealand, pending the substantive hearing.
[50] On 26 December 2018, Mr G (who was back in New Zealand) arranged for the children’s status at the Global International School to change from full-time boarding students to day pupils, living with his mother in the rented accommodation in Bangalore. By this time, L was five years, six months old, and the twins four years old. This meant that for more than a year, the children had resided as boarders in two different schools, and with no day-to-day engagement or contact with either of their parents.
Interim orders placing the children under the guardianship of the High Court
[51] Mrs G’s application for interim orders was heard by Edwards J on 13 February 2019. Mr G participated fully in that hearing. But, four days later, he returned to Ahmedabad, where he has continued to live with his mother and the children. Shortly after Mr G’s return, the children were moved to yet another school (in Ahmedabad), the Mother Theresa World School.
[52] The timing of Mr G’s departure from New Zealand hardly appears coincidental, coming as it did shortly after the Family Court in Ahmedabad declined jurisdiction on the basis both parents lived in New Zealand, and shortly after the interim orders hearing before Edwards J in this Court.
[53] By judgment delivered on 20 February 2019, Edwards J made interim orders placing the children under the guardianship of the High Court of New Zealand, and appointing the Chief Executive of Oranga Tamariki as the Court’s agent to travel to India to arrange the children to be brought back to New Zealand.8 As a matter of New Zealand law, placing the children under the guardianship of the High Court suspended Mr G’s (and indeed Mrs G’s) roles as guardian.
8 SG v DSG, above n 2.
Mr G’s further legal proceedings in India
[54] Mr G had appealed the Family Court’s decision of 2 November 2018 (see [47] above) to the Gujarat High Court. On 25 February 2019, the Gujarat High Court issued a judgment in which it noted that Mr G had withdrawn his appeal, on the basis he was now living in Ahmedabad. The High Court stated:
The appeal is disposed of as withdrawn at this stage since the appellant intends to file appropriate fresh proceedings before the learned Family Court in accordance with law. It is classified that if and when the appellant herein files appropriate proceedings, the same may be considered and decided in accordance with law and without being influenced by the order dated 2.11.2018 which is impugned in present appeal.
The learned Family Court will endeavour to decide the proceedings expeditiously and preferably within period of 12 months from the date of issuance of summons.
[55] In his updating affidavit filed in this Court shortly before the substantive hearing, Mr G said that the High Court had delivered a decision “overturning” the decision of the Family Court at Ahmedabad, and found that the Indian courts do have jurisdiction to consider his application in the Family Court. He said, “I was ordered to file fresh proceedings in the Family Court, which I have done”.
[56] As can be seen from the above extract from the Gujarat High Court’s decision, however, this misstates the nature and effect of that decision. As the text of the decision makes clear, the appeal was in fact withdrawn by Mr G and the decision records that he “intends to file appropriate fresh proceedings before the learned Family Court in accordance with law”. The decision goes on to say, “it is clarified that if and when the appellant herein files appropriate proceedings …” (emphasis added). This does not equate to an order by the Court that Mr G file fresh proceedings.
[57] Mr G filed fresh proceedings in the Family Court at Ahmedabad on 24 April 2019. A document which is broadly similar to a notice of proceeding in this jurisdiction was produced by Mr G in his updating affidavit in these proceedings filed shortly before the hearing before me. No other documents concerning his Family Court proceedings were produced by Mr G. The notice of proceeding document records that the proceedings were filed under the Hindu Marriage Act 1955, the Special Marriage Act 1954, the Family Court Act 1984 and the Divorce Act 1989.
Mr G says in his updating affidavit that the relevant court documents were thereafter despatched by post to Mrs G in New Zealand.
[58] Mrs G acknowledges receiving the documents and annexed to her updating affidavit a copy of what she received in addition to the one-page notice of proceeding- type document, namely an unsigned document which appears to be akin to a statement of claim.9 The document contains a number of allegations against Mrs G, including that she “intentionally hit the kids on a regular basis”. It also alleges that Mrs G “used to go to a psychiatrist which was suggested by the social worker for her anger issues and abnormal behaviour”. I interpolate to note there is no evidence of Mrs G ever attending a psychiatrist in this country, though as noted, she did have some counselling in 2017 in the context of her separation from L. Inquiries of Mrs G’s general practitioner in Auckland also disclosed no records to suggest Mrs G had any mental health issues, nor any record of any treatment or referral to a psychiatrist.
[59] Mr G’s claim also suggests that Mrs G would “threaten to harm the kids by saying that she will force the kids to jump from the bridge or throw in front of train” (sic), though I note allegations of this kind have not been made before this Court. The claim document also alleges that Mr G was “beaten mercilessly” by Mrs G, which again is not an allegation made in these proceedings.
[60] There was no further evidence before me as to what extent Mr G’s proceedings in the Family Court at Ahmedabad have progressed.10 It is also not clear from the face of the documents that have been produced whether the proceedings concern Mr G’s application for a divorce from Mrs G only, or also seek formal custody of the children. From the claim document, it appears the former is the case. The only relief sought by Mr G in that document is the passing of a decree of divorce (plus “such other and further relief as deemed just and proper”). But, if Mr G’s proceedings in the Family Court at Ahmedabad do seek custody of the children, it is concerning that nowhere in the claim document does Mr G refer to the New Zealand court proceedings, or that by
9 It bears the same court reference number as that noted on the notice of proceedings document produced by Mr G.
10 Mr G simply says that the Family Court accepts Mrs G has been served and the “proceeding is progressing”.
the time of his claim, the children were already under the guardianship of the High Court of New Zealand.
[61] Mrs G states that since her husband has returned to India, her Skype/WhatsApp communications with the children have become somewhat more regular, in that she is generally able to speak to them for a time each Saturday and Sunday. She is concerned, however, that Mr G is present throughout these conversations, and she finds his presence during them controlling and intimidating.
[62] Mrs G says that in some more recent communications, L has also said things such as he is not her son, and he does not want to live with her. Mrs G is concerned Mr G is influencing L to say such things. Mrs G says that despite having said such things, L is then happy to continue to engage and speak with her in the calls.
Social worker and psychologist reports
[63] Whenever a guardianship order is sought under the Act, the application must be supplied to the Chief Executive of Oranga Tamariki if the Court so directs, and the Chief Executive or a social worker must then report to the Court on the application (referred to as a “s 132 report”).11 This case was referred to the Chief Executive and a s 132 report was provided to the Court. One of the report writers, Ms Windle, also appeared at the hearing before me to speak to the report and answer questions from counsel and the Court.
[64]The s 132 report was based on the following:
(a)any records held by Oranga Tamariki in respect of the children and their parents (in this case, no such records were held);
(b)interviews with Mr G, Mrs G and Mrs Warwick;
(c)an interview with the case worker at Family Start, to whom Mrs G had been referred by Shakti in 2017; and
11 Care of Children Act 2004, s 132.
(d)information from Mrs G’s general practitioner.
[65] Several (unsuccessful) attempts were also made to interview staff at the children’s present school in India.
[66] In short, Ms Windle confirmed that there are no “care and protection” concerns with the children being in either Mrs G’s or Mr G’s care. In response to questions from the Court, Ms Windle confirmed that care and protection is a narrower inquiry than the welfare and best interests of a child, and focuses on issues of actual physical violence, neglect and so on. Ms Windle also confirmed there have been no reports of concern to Oranga Tamariki about either Mrs or Mr G’s parenting.
[67] In the context of more recent statements by L that he doesn’t want to see or live with Mrs G, Ms Windle stated that most children do want to have contact and maintain a relationship with their parents, and that it would be rare for children to say they don’t want to see a parent at all.
[68] Under s 133 of the Act, reports from other professionals can also be sought by the Court, including a psychological report about the child or children who are the subject of an application for guardianship. Dr Madhu Rai, a registered psychologist, was appointed by the Court to provide a psychological assessment report in this case.
[69] Dr Rai is a registered psychologist, registered under the Psychologists Act 1981.12 She has a Bachelor’s degree (with a major in Economics and Psychology), a Master’s degree in Psychology, and Doctor of Philosophy in Psychology (Child Psychology). All these qualifications were gained from the Guru Nanak Dev University in India (over the period 1980 to 1991). From 1993 to 1995, Dr Rai completed a Post-Doctoral Fellowship at Massey University in New Zealand.
[70] From 1997, Dr Rai has been a specialist report writer for the Family Court in New Zealand. She is also an approved cultural report writer for the courts, and provides cultural supervision. She is a fluent speaker of Hindi, Punjabi and Urdu.
12 Now the Health Practitioners Competance Assurance Act 2003.
[71] Dr Rai’s assessment in this case was hampered somewhat, in that she was not able to engage with the children given their present location in India.13 She also declined to interview Mrs G, being of the view that it would be imbalanced to do so, but not also interview Mr G in person. Nevertheless, Dr Rai reviewed all the affidavit evidence and other materials filed in these proceedings, which informed her written reports and oral evidence at the hearing. I found her evidence helpful.
[72]The key points to emerge from Dr Rai’s evidence were as follows:
(a)That in her experience, and having made appropriate inquiries in India, it is very unusual for children as young as L, P and T to have been placed in boarding school.
(b)That it would not be in the children’s best interests to be separated from each other for an extended period of time. Dr Rai noted that the three children are clearly very close, and their relationship with each other will have been a “coping mechanism” in the context of the frequent disruption in their lives to date.
(c)That the children’s moves between locations and schools, and lack of continuity in their various caregivers, will not have been good for their welfare or in their best interests.
(d)Mr G’s actions in leaving India shortly before the children were put in boarding school from “a parenting capacity point of view shows lack of insight”.
(e)For a parent to remove a child from the care of the other parent against that parent’s wishes is the most serious form of abuse against that parent. Such alienation is also psychologically abusive to the child.
13 Dr Rai did not consider it appropriate to engage with the children via Skype or similar means, including on the basis that it would not necessarily be confidential, and that in her career, she has never before conducted an assessment via such electronic means. She did not consider this would enable her to carry out a proper assessment of the children.
(f)Video contact between the children and their mother is not a suitable platform for them to form a meaningful relationship with her.
(g)It is vital for the primary caregiving parent to promote the other parent in the children’s lives.
(h)Taking steps to ensure that the other parent has a diminished role in a child’s life is a form of psychological abuse to the child. Dr Rai noted however, that the children in this case are presently too young to be “programmed” or “brainwashed” into alienation from their mother. But the point at which L may be susceptible to such programming is not too far off. She was therefore of the opinion that the present time is a critical stage for determining the appropriate care arrangements for the children going forward.
(i)It would have been ideal and in the children’s best interests for them to have been returned in accordance with the Court’s interim orders, preferably with ongoing contact with the paternal grandmother to assist in that transition.
(j)While the presence of extended family in a child’s life is important and desirable, the best scenario for a child is to have meaningful relationships and contact with both parents.
(k)While the children may now have an attachment to their paternal grandmother (though Dr Rai could not comment on the quality of that relationship), that relationship ought not to usurp relationships with the children’s parents.
(l)From an Indian cultural perspective, it would be very common for the father’s family to support the father, and the mother’s family to support the mother, and it would be unusual for family members to be critical of their own child, particularly a male child. Dr Rai also confirmed that
Mrs G’s evidence that “it is a cultural expectation that wives will comply with their husband” is correct.
(m)From an Indian cultural perspective, it is quite common for a paternal grandmother to intervene and spoil the children, or to act in a way to undermine a daughter-in-law.
(n)Finally, in Dr Rai’s experience, when parents separate and/or divorce, the concept of “sharing the child” is very novel from an Indian cultural perspective. Dr Rai said that in her opinion, it was more likely that arrangements could be put in place here, with the backing of the Family Court, to ensure the children are able to maintain a meaningful relationship with both parents.
Observations on the evidence
[73] Before turning to the law and then my reasons for granting the guardianship orders, I first make some broad observations on the evidence.
[74] First, Mrs G was available for and was cross-examined at some length by both the lawyer for the children and counsel for Oranga Tamariki, as well as answering questions from the Court.
[75] Mrs G impressed me as a credible witness. She did not seek to over-exaggerate matters, or to unnecessarily undermine Mr G or his family before this Court. For example, Mrs G gave evidence that Mr G hit her while they were in India in 2015. When cross-examined, she was very clear that this was the first and only time Mr G has been physically violent towards her. It would have been quite easy for her, in the absence of Mr G or his counsel, to over-exaggerate matters and suggest Mr G had been physically violent to her on more occasions. It speaks to her credibility that she did not do so.
[76] A further example is that Mrs G confirmed she does not have any safety concerns, from a physical perspective, at the children being in the custody of Mr G or
of his mother.14 Again, it would have been quite easy to Mrs G to say she has such concerns, yet she did not do so.
[77] Further, there is no better means of assessing the credibility of a witness than by observing them and listening to them as they give their evidence. The courts in this jurisdiction have emphasised on many occasions the advantages enjoyed by a trial judge in assessing a witness’s credibility.15 Watching and listening carefully to Mrs G as she gave evidence reinforced my views as to her credibility. I also noted that when she was questioned and spoke about the children’s personalities, she literally “came alive”, and her joy and pride in her children was evident.
[78] I do note, however, that as flagged at [22] above, Mrs G was a little defensive when it was put to her that she might not have been coping immediately after the twins’ birth, given she was the primary caregiver to three children under the age of two.16 I considered it possible she was having some difficulties at that time, which as I said earlier, would not be abnormal or unusual for any mother in similar circumstances. Importantly, it also says nothing about Mrs G’s qualities as a parent, or her ability to properly care for and nurture her children. There was also no evidence that Mrs G has any mental health issues, nor any issues that present a concern in respect of her ability to parent her children. Indeed, all the available information points to the opposite conclusion.
[79] I was also satisfied that Mrs G was genuine in her desire for the children to have a proper and ongoing relationship with Mr G and his family. In this context, she said the following when being cross-examined by lawyer for the children:
Q.Now if the children are placed with you, what contact do you think they should have with their paternal family if Mr [G] remains in India?
A.I’m happy to have – I would like to have the children have contact with their paternal family. They can video call or if they want to visit them here most welcome come and visit. I prefer that I – I would like that my kids have contact with both families, my family and his family. But I would sort it out all this thing with legally.
14 She obviously has concerns at the psychological effects on the children from being separated from her for an extended period.
15 See the Supreme Court’s recent observations in Sena v New Zealand Police [2019] NZSC 55 at [38]-[40].
16 And surviving on only a few hours’ sleep each night.
Q. Have the children had any contact with your family since November 2017?
A. No.
Q. If Mr [G] was living in New Zealand, what contact would you propose?
A.I would like to have children with me and he can come and visit to them.
Q. So are you saying that you would supervise the visits?
A.First I would like to supervise otherwise I’m happy to – he’s the father so I don’t have any problem that he have contact with the children. He’s father of my children.
Q. And would you agree to their grandmother visiting them in New Zealand?
A. Yes. I don’t have any problem that any member of his family can come and visit them, I don’t have any problem that why they are visiting. I would like that they would come and visit them. I would prefer that children do know their family, both side of families.
[80] Turning to Mr G (and his family members who swore affidavits in support of his case), it was not possible for me to draw any real conclusions about their credibility, given they did not appear and make themselves available for cross-examination. For this reason, while I read and took into account all their evidence, I did not (and could not) place significant weight on it. I was also concerned that Mr G has taken a very tactical approach to these proceedings, including by withdrawing from them at the last minute. Had it been clear from the outset that he did not intend to participate, the hearing could no doubt have been heard much earlier in the year. Mr G’s return to India in February 2019 also presents as a tactical move, as noted at [52] above.
[81] It was also clear that from February 2015 (in the case of L), and November 2017 (in the case of the twins), until February this year, Mr G chose not to have day- to day contact with his children. He also took steps to remove them from their mother’s care, with the result that until February 2019, the children have had no meaningful relationship with either parent. Whatever the reason or justification for Mr G’s actions, this shows a concerning lack of insight on his part, given the promotion of meaningful relationships with both parents is crucial to a child’s welfare and best interests. I return to this topic later in this judgment.
The law
Introduction
[82] Pursuant to s 31 of the Act, the Court may make an order placing a child under the guardianship of the Court, with an order appointing a named person to be the agent of the Court, either generally or for any particular purpose. I first address the jurisdiction to make such orders, and second, the principles to guide consideration of whether such orders ought to be made.
Jurisdiction
[83] The High Court and the Family Court have concurrent jurisdiction to make guardianship orders under s 31.17 When the children the subject of the application, and/or the parents are out of the jurisdiction, s 126 of the Act provides as follows:
126 Personal jurisdiction
(1)The court has jurisdiction under this Act in any of the following cases:
…
(c) if the child, a person against whom an order is sought, or the applicant, is, when the application is made, domiciled or resident in New Zealand.
(2)Despite subsection (1), the court may decline to make an order under this Act if—
(a)neither the person against whom it is sought nor the child is resident in New Zealand; and
(b)the court is of the opinion that no useful purpose would be served by making an order or that in the circumstances the making of an order would be undesirable.
…
[84] At the time Mrs G filed her application in May 2018, both she and Mr G were resident in New Zealand. This Court therefore has jurisdiction pursuant to s 126(1)(c) of the Act. That remains the position despite Mr G’s subsequent return to India, as
17 Care of Children Act 2004, s 30.
jurisdiction is determined at the time the application is made. Mrs G, as applicant, continues to reside here in any event.
[85]I was therefore satisfied I have jurisdiction to make the orders sought.
[86] As will be apparent from s 126(2), the Court may nevertheless decline to make an order under the Act if the children and any person against whom the orders are sought are outside New Zealand, and the Court is of the opinion that no useful purpose would be served by making an order. In this case, given India is not a contracting state to the Hague Convention, it might be said there is no utility in making the orders, given the inability for them to be enforced, directly at least, in that jurisdiction.
[87] I was nevertheless satisfied that I ought not to decline to exercise jurisdiction on this basis, for the following reasons:
(a)First, the children are New Zealand citizens, and at the time of the substantive hearing, the children were already under the (interim) guardianship of the High Court.
(b)Second, in circumstances such as the present case, and subject to consideration of the children’s welfare and best interests, a New Zealand court effectively has a duty to act when a young citizen has been wrongfully removed from the jurisdiction without a parent’s consent.18
(c)Third, it is plain that in the absence of orders being made in this case, there would be no prospect of the children being returned to this jurisdiction in the short to medium term.
(d)Fourth, while the orders are not directly enforceable in India, I was provided with Indian case law which indicates that unless there is “special reason” not to do so, Indian courts will generally respect orders passed by foreign courts. For example, the Supreme Court of India has
18 See [90](b) below.
stated there are “very few” situations where an Indian court ought to ignore an interim or interlocutory order of a foreign court.19 And while the guardianship orders I have made are not “interim” in the strict sense (such as Edwards J’s orders, which were made pending the substantive hearing before me), their effect is interim only, as they are made pending any further order of this Court (and determination of ongoing care arrangements by the Family Court in this jurisdiction). Accordingly, the fact the orders are not directly enforceable in India does not necessarily mean they will not be enforced in India.
Legal principles applying to guardianship applications
[88] Edwards J summarised the legal principles applying to guardianship applications in her February 2019 judgment, which I gratefully adopt:20
[28] The guardianship jurisdiction is to be invoked cautiously and only after proper inquiry, but it is nevertheless a flexible and resourceful remedy.21 The touchstone for invoking the jurisdiction is the need to protect a vulnerable child. Although the jurisdiction is broad and unfettered, it has been described as a jurisdiction of last resort which should not be exercised without consideration of other interventions which might achieve the stated goal.22
[29] COCA implements the Hague Convention of the Civil Aspects of International Child Abduction in New Zealand. That Convention is set out in Schedule 1 to the Act. New Zealand is a contracting state to that Convention, but India is not. The Courts have used guardianship orders as a remedy to return children who have been unlawfully taken out of New Zealand to non- contracting states.23 Whether the children in this case have been removed unlawfully from New Zealand is a matter of dispute between the parties, as discussed further in this judgment.
[30] The welfare and best interests of a child are the first and paramount considerations in any application for guardianship, whether interim or final.24 In considering the welfare and best interests of a child and his or her particular circumstances, the Court must take into account:
(a)the principle that decisions affecting the child should be made and implemented within a timeframe appropriate to the child’s sense of time; and
19 Vadanan v State of Tamilnadu [2015] INSC 179 at [56].
20 SG v DSG, above n 2.
21 Hawthorne v Cox HC Auckland CIV 2006-404-7390, 27 August 2007 at [75].
22 Re CPPB FAM-2008-063-226, 2 December 2011 at [9].
23 See ASK v SK [2011] NZFLR 333 at [8]; SS v HKM [2010] NZFLR 949 at [22]–[24]; H v J (1997)
15 FRNZ 258.
24 Care of Children Act 2004, s 4(1).
(b)the principles set out in s 5 of COCA.25 Each of the six principles in s 5 are set out and addressed further in this judgment.
[31] In addition, the Court may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that the conduct is relevant to the child’s welfare and best interests.26
[32] Finally, in proceedings involving the guardianship or day to day care of a child, s 6 requires the child to be given reasonable opportunities to express views on matters affecting the child with those views taken into account by the Court.
[89] In relation to the latter point, given the children are presently in India, it has not been possible for them to be assessed and their views directly obtained. Nevertheless, Ms Patel, lawyer for the children, provided balanced and helpful submissions to the Court, focusing on the key points relevant to the children’s welfare and best interests. She also conducted a detailed cross-examination of Mrs G.
[90] A key matter I had to determine on the present application was whether the children were unlawfully removed from New Zealand, or removed without Mrs G’s consent. In this context, the following principles can be drawn from the authorities:
(a)First, where “manoeuvring” or subterfuge is used to remove children from New Zealand with consent, that will not be a lawful removal from New Zealand. “Consent obtained through subterfuge in New Zealand is hardly any different to an abduction which occurs in fact within New Zealand.”27
(b)Second, where New Zealand has ratified conventions such as the United Nations Convention on the Rights of the Child, it is incumbent on the New Zealand courts to have regard to the principles contained in them, even where the conventions have not been adopted into our statute law.28 Accordingly:29
25 Care of Children Act 2004, s 4(2)(a)(i) and (ii).
26 Section 4(2)(b).
27 H v J, above n 22, at 261–262.
28 Jayamohan v Jayamohan [1996] 1 NZLR 172 at 177.
29 At 178, citing Kidwell v Mamea HC Auckland M370/95, 17 October 1995.
If a child has been removed without the consent of the other guardians or of the Court from this jurisdiction, then that child should be returned to its home country, New Zealand, subject to a necessary inquiry as to any impact on that child's welfare. Any future disputes concerning its guardianship should as a rule be dealt with here in New Zealand.
(c)Third, and in light of the preceding points, if a child has been wrongfully removed from New Zealand, the Court should provide such remedy as it has at its disposal, notwithstanding that there may be difficulties in its implementation.30
(d)Fourth, in non-Hague Convention cases, the New Zealand courts should act by analogy. As Blanchard J stated in Jayamohan v Jayamohan:31
After all, they are only non-Convention cases because the other country involved has not committed itself to a now internationally accepted practice. But New Zealand most certainly has.
[91] A further key issue in this case was how to approach Mr G’s allegations (supported by other members of his family) of Mrs G’s violence or aggression towards her children. I note and respectfully agree with Hammond J’s observations in F v M that such allegations are easily made in cases of this kind for self-serving purposes.32 But given the Court’s primary inquiry is the welfare and best interests of the children, any such allegations must be taken seriously, and the Court ought to give anxious consideration to them.
[92] The Court of Appeal provided guidance as to how a court ought to approach such allegations in M v Y, albeit dealing with allegations of sexual abuse.33 It is helpful to set out Hardie Boys J’s comments in full:34
It is doubtless trite, but nonetheless needs always to be borne in mind, that in disputes as to custody or access the Court is to regard the welfare of the child as the first and paramount consideration; and it is to have regard to the conduct of the parents to the extent only that it is relevant to the welfare of the child.
30 Jayamohan v Jayamohan, above n 27, at 178.
31 Jayamohan v Jayamohan at 179.
32 F v M (1996) 14 FRNZ 234 at 240.
33 M v Y [1994] 1 NZLR 527.
34 At 533-534.
This is s 23 of the Act. It is all too easy - and it is understandable - where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child's welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.
…
Where an allegation of sexual abuse is made - and the same is no doubt true of any allegation of misconduct bearing on the welfare of the child - the Court's task is twofold. First, it must deal with the allegation; and secondly, it must determine the application before it in the light of all the circumstances that are relevant to the child's welfare, including its findings upon the allegation. The second aspect, involving as it does a much wider issue than the first, is the Court's primary function, and the result is not necessarily dependent on the outcome of the first. As the Court observed in M v M, it does not follow that if an allegation of sexual abuse has not been made out, that conclusion determines the wider issue which confronts a Court when it is called upon to decide what is in the best interests of the child.
In dealing with the allegation, the Court should apply the civil standard of proof, commensurate with the gravity of the allegation. Applying that standard, it may be satisfied that the abuse has occurred. But I respectfully agree with the caution expressed in M v M at p 77; p 77,081 that "there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so". The Court may, on the other hand, be satisfied that the abuse has not occurred, as Temm J was in this case. It is then right that the allegation should be expressly rejected. In many cases, perhaps most, the Court will be unable to reach a conclusion with any confidence. It is in that situation that an assessment of risk must be made. That assessment may lead to the conclusion that there should be no contact between parent and child, or to the conclusion that there should only be access that is monitored or supervised or otherwise controlled or limited. At this point the two aspects of the Court's task begin to merge but the distinction between them is important and must not be lost sight of.
[93] The President of the Court, Cooke P, adopted a similar approach and endorsed the following passage from the High Court of Australia’s judgment in M v M:35
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a 'risk of serious harm'… This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental
35 M v M (1988) 166 CLR 69 at 78.
access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[94] It is also clear that, in taking the children to India and removing them from Mrs G’s care, Mr G has engaged in this case in a “self-help” approach, presumably believing it in the children’s best interests. But as Hammond J stated in F v M, however, such “self-help” is undesirable and can undermine the welfare and best interests of the child:36
Child-snatching and "ruse" cases also proceed (generally) on the same principle. Routinely the best interests of a child will not be served by being left in the custody of a parent who has had so little real regard for the interests of that child as to snatch her away, whatever the perceived or asserted justification…. In short, self-help is a quite undesirable remedy in child custody cases.
[95]I fully agree with and adopt his Honour’s observations.
[96] Finally, I note that guardianship orders have been made by this Court in a number of cases not dissimilar to the present, where children have been removed from New Zealand by one parent without the other parent’s consent, or with the other parent’s consent obtained by subterfuge. I refer in particular to H v J (children removed to India);37 Jayamohan v Jayamohan (children removed to Sri Lanka);38 SS v HKM (children removed to India)39 ASK v SK (children removed to India);40 and AM v PM (again, children removed to India).41 I found the approach taken in those cases helpful, though note that in none of them had the children been in the foreign jurisdiction for as long as in this case, prior to the substantive hearing.
[97]I turn now to my reasoning for making the orders I did.
36 F v M, above n 31, at 237.
37 H v J, above n 22.
38 Jayamohan v Jayamohan, above n 27.
39 SS v HKM, above n 22.
40 ASK v SK, above n 22.
41 AM v PM HC Wellington CIV-2011-485-2303, 7 November 2011. See also AM v PM [2012] NZHC 1140.
Were the children unlawfully removed from New Zealand?
[98] I was satisfied the children’s removal to and retention in India by Mr G was without Mrs G’s consent, and in breach of her rights and responsibilities under the Act as a guardian of the children.
[99] First, I had no reason to doubt Mrs G’s evidence that she returned reluctantly to New Zealand in 2015 without L, on the assurance from Mr G that L would return from India a short time thereafter. As noted, I found Mrs G a credible witness. The scenario she described is also consistent with Dr Rai’s evidence as to the dynamic between husband and wife in a relationship of this kind, and Mrs G’s obvious distress and concern at her continued separation from L, which led her to seek support from Shakti and Family Start.42 It is also consistent with Mrs Warwick’s evidence that Mrs G told her at the time that L would be returning from India in a few months.
[100] Further, I was also satisfied that Mrs G was effectively “tricked” by Mr G into leaving New Zealand with the twins in 2017, believing they were returning to India to be reunited with L and to live there together as a family. It is notable (and in my view, not a coincidence) that neither of the reasons given by Mr G for returning to India at that time eventuated; his business in Chandigarh and his mother’s urgent back surgery. Further, the suggestion the couple had already agreed to separate and to put the children in boarding school before they left for India is inconsistent with events which unfolded once the parties arrived. That the separation was planned is inconsistent with Mr G filing an application for divorce shortly after arriving in India on a sole basis, rather than it being a joint application. This was a point expressly noted by Courtney J in her forum non conveniens judgment.43 Any agreement to put the children into boarding school, or that Mr G was to have sole custody of them, is also inconsistent with Mrs G’s literally desperate efforts in India in late 2017 and early 2018 to locate the children and to regain care of them. Further, by late 2017, Mrs G had an extremely close relationship with Mrs Warwick. Yet Mrs Warwick was under the firm impression that the family were leaving New Zealand to live together with the three children in
42 Independent evidence from the Family Start case-worker reported Mrs G seeking help in late 2016 “for support regarding her husband’s controlling behaviour and the fact he had taken their son [L] to live in India without her permission”.
43 SG v DSG, above n 1, at [23].
India – she said that this was in fact what Mr G had told her at the time. I consider it inherently unlikely that Mrs G would not have confided in Mrs Warwick as to what was really going on, if it was all planned and agreed; or at the very least, shared that the relationship was in trouble and the parties were going to India to try to sort it out.
[101] Having carefully reviewed all the evidence in this case, I was satisfied that Mr G’s actions were a deliberated and concerted effort to take control of the children and to gradually alienate Mrs G from them. I was conscious that his mother and sister swore affidavits in support of Mr G’s case, but it is clear they have taken their son’s/brother’s side and no doubt wished to support him, particularly given his role as the eldest male in the family. I therefore did not place significant weight on their evidence, particularly as it remains untested through cross-examination. I was also mindful of the fact that Mrs G was only permitted regular (of sorts) communication with her children via Skype once these proceedings had been commenced in New Zealand. The inference to be drawn is that without formal court proceedings, Mr G would have taken no steps to promote Mrs G in the children’s lives.
What best ensures the children’s welfare and best interests?
Introduction
[102] While the Court may deprecate Mr G’s actions in removing the children from Mrs G’s care without her consent, a guardianship order must not be made simply to “punish” a parent in such circumstances. The central inquiry must always be, what best ensures the children’s welfare and best interests? Section 4 of the Act mandates that inquiry, and that in carrying out such an inquiry, the Court must take into account the principles set out in s 5.
Protection from violence
[103] Section 5(a) provides that a child’s safety must be protected, and in particular, a child must be protected from all forms of violence from all persons, including members of the child’s family, family group, whānau, hapū and iwi.
[104] Violence is defined to include physical abuse and psychological abuse.44 Both Ms Windle and Dr Rai were of the view that psychological abuse of children can be as serious as physical abuse (and can have longer term effects). Both were also of the view that the removal of a child from a primary caregiver parent, and steps taken to alienate them from that parent, amounts to psychological abuse of the child.
[105] In this case, Mr G, his mother and sister have made allegations that Mrs G has been violent to the children. These include allegations such as Mrs G snatching, slapping and hitting the children, as well as being verbally abusive to them.
[106] At the hearing before me, each of the allegations was put to Mrs G. She strongly denies all of them. I have set out earlier in this judgment my views on Mrs G’s credibility.
[107] Ultimately, I placed little weight on the allegations made by Mr G and his family. As noted earlier, it is very easy for self-serving allegations of this kind to be made in proceedings of this type. Mr G’s mother (and sister) are clearly aligned with him in the current dispute, and no doubt wish to support him in that regard. There is no independent evidence to support the multiple allegations of abuse. Further, while they were in New Zealand, there is no doubt Mrs G was the children’s primary caregiver. There is no evidence of Mr G raising any concerns in relation to his wife’s treatment of the children during this time. Nor did Mrs Warwick observe or have any reason to believe that Mrs G was physically and/or verbally abusive to her children. This is despite the extremely close relationship between Mr and Mrs G and Mrs Warwick, and their very close living arrangements.
[108] Nor have there been any complaints to relevant authorities, by Mr G or anybody else, of concerns or observations of abuse by Mrs G to her children. Having conducted what enquiries they can at this stage, Ms Windle for Oranga Tamariki also confirmed that there are no care and protection concerns in the children being in Mrs G’s care on their return to New Zealand. I also took into account the evidence of Ms Charmaine Stuart, the manager of ABC Epsom, an early childhood learning centre in Auckland. P and T attended the Centre for eight months between 19 December
44 Family Violence Act 2018, s 9(2).
2016 and 24 August 2017. Mrs Stuart was very complimentary of Mrs G’s relationship with her children concluding that “[Mrs G] always presented to me as a hard-working, dedicated and loving mother. She clearly cared about her children’s education as well as their emotional well-being.”
[109] Mrs Warwick, who had observed Mrs G as a mother for over four years, also described her loving and close bond with the children.
[110] I was satisfied it was highly unlikely Mrs G engaged in any form of physical violence towards her children of the nature alleged by Mr G and his relatives. Carrying out the risk assessment mandated by the Court of Appeal in M v Y, I did not consider there to be any risk under s 5(a) of the Act of the children being placed in Mrs G’s care upon their return to New Zealand, pending ongoing care arrangements being determined. Further, the orders I made in my judgment of 4 October 2019 ensure close monitoring and assessment of the children upon their return in any event.
[111] Conversely, I considered there to be a real risk of the children being exposed to ongoing psychological harm were they to remain in Mr G and his family’s care, at least in the current circumstances. As Dr Rai confirmed, it is psychologically harmful to a child to be deprived of proper and meaningful contact with a parent, and to be alienated from that parent by the other parent. I also considered that the steps taken by Mr G in removing the children from Mrs G’s care showed a concerning lack of insight by him as to what best ensures the children’s welfare and best interests. That is also evident from his approval of the children being placed into boarding school at extremely young ages, and for the children to have no proper contact with either parent from 2015 (in the case of L) and 2017 (in the case of the twins).
[112] In this context, I have also noted above that Mrs G’s concerns at returning to India do not appear to be fanciful. Further, there is nothing preventing Mr G or his mother from returning to this jurisdiction, either permanently (in the case of Mr G) or regularly (in the case of both Mr G and his mother), to be closer to or visit the
children.45
[113] I also gave careful and anxious consideration to the risk of further psychological trauma being caused by uplifting the children from India and returning them to New Zealand. They have been there for some time. I do not doubt that they have formed an attachment of sorts to their paternal grandmother.
[114] Nevertheless, two factors persuaded me that any risks in this regard can be appropriately managed:
(a)First, the suggestion of continuity of care while the children have been in India is in fact somewhat illusory. From November 2017, the children were boarders at the Divine Care School, with no day-to-day care by either parent or their paternal grandmother (though I note she visited regularly). A similar scenario existed when the children were boarders at the Global International School in Bangalore. And while they became day students at that school in December 2018 and began living with their paternal grandmother, that is less than one year ago. And since then, they have only had day-to-day contact with their father for a number of months, and continue to have no day-to-day contact with their mother.
(b)Second, I was satisfied appropriate steps can be taken to ameliorate any risks in this regard, including by the various steps I ordered to be taken in relation to how the children are to be returned to New Zealand, and ongoing contact with Mr G and his mother upon their return. The Court would also hope that Mr G and/or his mother will recognise that it is in the children’s best interests for there to be an orderly transition of the children back to New Zealand, which will hopefully involve one or both of them accompanying the children on their return. I was further fortified that the risk of anxiety to the children upon being separated
45 In terms of Mr G’s return, there is no basis to suggest he risks being arrested or similar upon his return, given he is in default of Edwards J’s orders. Mrs G has not taken any steps in this regard, such as applying for Mr G to be found in contempt of Court. On the contrary, Mrs G’s preference is that Mr G accompanies his children on their return.
from their paternal grandmother can be mitigated by them remaining together; the close monitoring of them on their return; and the order that Mrs G is to ensure continued and regular contact with Mr G and his mother upon the children’s return.
[115]Principle 5(a) accordingly weighed in favour of making the guardianship order.
Parental responsibility
[116] Principle 5(b) provides that a child’s care, development and upbringing should primarily be the responsibility of his or her parents and guardians.
[117] Obviously, Mrs G does not presently have any meaningful or ongoing role in her children’s care, development and upbringing. Many important decisions about the children’s welfare have been taken by Mr G without Mrs G’s knowledge or input, including their schooling and living arrangements. Further, and until recently, Mr G himself did not have any particular or ongoing role in the children’s day-to-day care or development.
[118] I was satisfied this principle also weighed in favour of making the guardianship orders. They are necessary to ensure Mrs G’s rights and responsibilities in relation to her children can be properly recognised and implemented in a timely way, while also promoting and preserving Mr G’s rights and responsibilities.
Ongoing consultation and cooperation between parents
[119] Principle 5(c) provides that a child’s care, development and upbringing should be facilitated by ongoing consultation and cooperation between his or her parents. That is obviously not occurring in this case, and as set out above, I was satisfied that Mrs G is being deliberately marginalised from ongoing consultation and cooperation in relation to her children.
[120]This principle also weighed in favour of making the guardianship orders.
Continuity in care
[121] Principle 5(d) provides that a child should have continuity in his or her care, development and upbringing.
[122] At first blush, this principle could be argued to weigh against the guardianship orders being made, given that the children, and in particular L, have now been in India for some time. However, that is to be balanced against the fact that until the children were taken to India, there is no doubt (or indeed dispute) that Mrs G was their primary caregiver.
[123] Further, and as I have already addressed at [114](a) above, since being in India, the children have in fact had an extremely disrupted existence. While there has been some continuity of a relationship between them and their grandmother, there has been no continuity in care vis-à-vis Mrs G, and no continuity of care vis-à-vis Mr G until he returned to India in late February this year.
Relationship with both parents and family group
[124] Section 5(e) provides that a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened.
[125] Edwards J rejected Mr G’s suggestion that his mother’s assault charge against Mrs G is an obstacle to her returning. She specifically rejected as being unrealistic Mr G’s suggestion that it would be open to Mrs G to negotiate with him and his mother regarding that charge.46 I agree with Edwards J’s assessment in that regard.
[126] Further, and at least as matters presently stand, I did not consider there is any guarantee that Mrs G would be afforded regular, face-to-face contact with her children in India pending any formal arrangements being made in that jurisdiction as to ongoing arrangements. It is not clear what steps, if any, Mr G has taken in relation to the fresh Family Court proceedings he filed in April 2019. Further, I have noted earlier my concerns that Mr G appears to have chosen not to appraise the Ahmedabad Family
46 SG v DSG, above n 2, at [59]-[60].
Court that at the time he filed his application, the children were in fact already under the guardianship of this Court.
[127] The return of the children to this jurisdiction will enable a full and proper assessment of the quality of the relationship between the children and both their parents, as part of a full assessment of their ongoing care arrangements. I was satisfied that with the backing of the Family Court, there is every reason to believe that the children’s relationship with both their parents, and their families, can be promoted and maintained.
[128] I accordingly concluded that this principle also weighs in favour of making the guardianship orders.
Child’s identity
[129] Finally, principle 5(f) provides that a child’s identity, including his or her culture, language and religious denomination and practice, should be preserved and strengthened.
[130] There is no doubt that preserving the children’s connection to Indian culture will be important. But there was nothing to suggest that could not be fostered were the children to return to New Zealand. Mrs G speaks Hindi and confirmed that her communications with the children via Skype and WhatsApp are in Hindi. The evidence also suggests that the children are likely to speak reasonably good English, as they are apparently required to speak English while at school. Further, there is a significant and flourishing Indian community in New Zealand, and there is nothing to suggest the children will not benefit from this in New Zealand. Mrs Warwick also gave evidence that prior to the children’s removal from New Zealand Mrs G was regularly involved with the children in activities stemming from her Indian culture, including with Mr G’s mother.
[131] I accordingly did not consider principle 5(f) weighed against the guardianship orders being made.
[132] Finally, I gave detailed consideration as to whether the children’s future care arrangements ought to be left for determination in the Indian courts, given the children’s current location in India. Little information was placed before me as to Indian law relating to the care of young children in circumstances such as this. I was provided with an affidavit by Mrs G’s Indian lawyer who advised that in India, the paramount consideration is the welfare of the children. Dr Rai noted that from her research, her understanding is that a lawyer for the children is not appointed in Family Court proceedings in India, nor a court appointed psychologist to report to the Court on the children’s psychological well-being. She also expressed concern at the “huge delays” in decisions on matters such as these in the Indian courts. I do not place any significant weight, however, on Dr Rai’s observations in this regard, as she was not called to give evidence on the practice before the Family Courts in India, and did not profess to be an expert in that area.
[133] The current position nevertheless remains that this Court has been seized of the children’s care, welfare and best interests for some time, and well before Mr G’s current application to the Family Court at Ahmedabad (if it extends to custody of the children). Further, the children have, as of February this year, been under the guardianship of the High Court of New Zealand, again prior to Mr G commencing fresh proceedings in the Family Court at Ahmedabad. Further, the three children are New Zealand citizens and I have found they were wrongfully taken from New Zealand and retained by Mr G in India, without Mrs G’s consent. That cannot be ignored. Nor can the disruption that has taken place in the children’s lives in India to date. And as noted a number of times already, the present guardianship orders are not the “final say” on the children’s future care arrangements in any event. In addition, Oranga Tamariki social workers are already engaged in the provision of reports to the Court in relation to the children’s welfare and best interests; a lawyer for the children was appointed some time ago and will be involved in the process going forward; and Dr Rai is also briefed to provide a psychological report from the children’s perspective to the Court upon their return.
[134] I was also mindful of the potential delays in any Indian court proceedings concerning L, P and T,47 against the direction in s 4 of the Act that decisions affecting a child should be made and implemented within a time frame that is appropriate to their sense of time. The Gujarat High Court’s statement that the Family Court is to endeavour to determine any fresh proceedings within a year from being issued does not alone give me sufficient comfort in this regard. Further, I have noted earlier that it is not clear that Mr G’s fresh proceedings extend to seeking custody of the children in any event. There is also no evidence on the face of the Gujarat High Court’s judgment that it was made aware that, by the time of its judgment, the children had already been placed under the guardianship of this Court.
Conclusion
[135] For all the above reasons, I was satisfied the children’s welfare and best interests were best ensured by making the guardianship orders, on the conditions set out in my judgment of 4 October 2019.
Fitzgerald J
47 Noting the one year time period for the Family Court at Ahmedabad to deliver its decision on Mr G’s 2017 proceedings, declining jurisdiction.
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