SG v DSG - [2019] NZHC 2579

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SG v DSG

Details

AGLC: SG v DSG [2019] NZHC 2579
Case: [2019] NZHC 2579
Decision Date: 4 October 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Fitzgerald J was tasked with determining whether to grant an application by Mrs G for guardianship orders in respect of her three young sons. The children have been in India since late 2015 (the eldest) and late 2017 (the twins), and are presently in the care of their father, Mr G. Mrs G commenced proceedings in the High Court in May 2018, seeking orders for the children to be placed under the guardianship of the Court, and for them to be returned to New Zealand. Mr G opposed the application but did not participate in the hearing of the substantive application. Mrs G gave evidence, as did a social worker and a psychologist appointed by the Court. The Court found that the children had been removed from New Zealand without Mrs G’s consent, and that to ensure the children’s welfare and best interests, they should be returned to New Zealand and placed under the guardianship of the Court. The Court accordingly made guardianship orders to that effect. The orders are interim only, pending a determination of the children’s ongoing care arrangements by the Family Court. The Court invited all Judicial and administrative bodies in the Republic of India to render assistance ensuring that the children are returned as soon as possible to the jurisdiction of New Zealand.

Orders