SG v DSG - [2019] NZHC 1015

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

HTTPS://WWW.JUSTICE.GOVT.NZ/FAMILY/ABOUT/RESTRICTION-ON- PUBLISHING-JUDGMENTS.

ORDER PROHIBITING PUBLICATION 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-2018-404-001137

[2019] NZHC 1015

BETWEEN
SG

Plaintiff

AND

DSG

Defendant

Hearing: 8 May 2019

Counsel:

M A Twentyman for the Plaintiff A Hansen for the Defendant

U Patel and S N N Singh for the Children H J Ellis for Oranga Tamariki

Judgment:

10 May 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by me on , 2019 at am/pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar

Counsel: A Hansen, Auckland
U Patel, Auckland
S N N Singh, Auckland H J Ellis, Auckland

Solicitors: Morrison Kent, Wellington

SG v DSG [2019] NZHC 1015 [10 May 2019]

[1] By judgment dated 20 February 2019, I made interim orders placing the children of the parties under the guardianship of the High Court of New Zealand pending the determination of the substantive proceeding or further order of the Court.1 The Chief Executive of Oranga Tamariki – Ministry for Children (Oranga Tamariki) was appointed agent of the Court to facilitate the return of the children to New Zealand.

[2] There have been difficulties in enforcing the interim orders and the children have not yet been returned. The father is now in India and appears to have assumed custody of the children. He has not indicated any intention to return the children to New Zealand, and, as at the date of the hearing, the children’s whereabouts is unknown. The mother has not commenced proceedings in India to enforce my judgment and wishes to explore other avenues before taking that step as a last resort.

[3] Counsel for the mother, Oranga Tamariki, and for the children, seek orders to be made by consent to facilitate the return of the children, and to provide further direction on the steps to be taken by Oranga Tamariki on their return. Counsel for the father has indicated that he does not agree to the orders sought but “leaves the matter in the hands of the Court”.

The orders sought

[4] The terms of the orders sought with the consent of the parties (except for the father) were set out in a handwritten document provided at the end of the hearing.

[5] Some of the orders sought require the father to return the children to New Zealand and take steps to facilitate their return such as assisting with obtaining passports and making necessary travel arrangements. Other orders set out the steps that the mother and Oranga Tamariki will take to assist in obtaining passports for the children.

[6] I am satisfied that orders requiring the father to…

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 1015
Case: [2019] NZHC 1015
Decision Date: 10 May 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, SG brought proceedings against DSG concerning the care and guardianship of their children. The Court had already issued interim orders placing the children under the guardianship of the Court pending the resolution of the substantive case. Difficulties in enforcing these orders led to the children remaining in India with their father, DSG, who had no intention of returning them to New Zealand. The mother sought orders to compel DSG to return the children and to facilitate their return to New Zealand.

The central legal issue before the Court was whether to make orders that would compel DSG to return the children to New Zealand and assist in their travel arrangements, as well as to clarify the roles of the mother and Oranga Tamariki upon the children's return. The Court considered the need for such orders based on the father's non-compliance with previous interim orders and the urgency of ensuring the children's return to New Zealand.

The Court found that compelling DSG to return the children was appropriate, given his non-compliance with the interim orders and his apparent assumption of custody in India. The Court accepted that detailed orders regarding the steps to be taken by the mother and Oranga Tamariki upon the children's return were unnecessary, as they had already agreed on a process for obtaining passports and facilitating travel. However, the Court invited the parties to provide further clarity on the children's placement and the roles of the mother and Oranga Tamariki post-return. The Court decided to issue specific orders to compel DSG to return the children and assist in their travel arrangements.

The Court ordered DSG to take all reasonable steps to return the children to New Zealand, including sending passport photos and making travel arrangements. The Court also required the parties to submit a joint memorandum addressing the children's placement and any amendments to the interim orders. These orders were intended to ensure the children's safe return and to clarify the responsibilities of the mother and Oranga Tamariki upon the children's return to New Zealand.

Orders