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  return  the  children  to  New Zealand are appropriate. Similar orders requiring the defendant to return the

1      SG v DSG [2019] NZHC 218.

children were made in ASK v SK and SS v HKM.2 The father now lives in India and appears to have day to day custody of the children. It is evident that he has no intention of voluntarily returning the children to New Zealand, or otherwise giving effect to the interim orders made. It is appropriate that he be ordered to now return the children, and take steps in relation to the children’s passports, and the booking of flights, to give effect to the interim orders made.

[7]    However, orders in relation to the other steps to be undertaken by the mother and Oranga Tamariki are unnecessary. SG has agreed to obtain any passports for the children and deliver them to Oranga Tamariki once received. Oranga Tamariki will then deliver these passports to the New Zealand High Commission in Delhi and send a certified copy to counsel for the father to facilitate booking of the flights. That agreement is adequate, and it is unnecessary to record those detailed arrangements in Court orders.

[8]    The remaining orders sought by consent particularise Oranga Tamariki’s role following the children’s return. However, the interrelationship between the proposed orders and the existing interim orders remains unclear. For example, one of the orders sought provides that “Oranga Tamariki is to be responsible for the placement and monitoring of the children once they are in New Zealand in accordance with their welfare and best interests”. However, the interim order at [80] of my judgment provides for the mother to have the day to day care and control of the children on their return on condition that both she and the children reside with Ms Gillian Warwick.

[9]    Counsel are invited to submit a further memorandum (preferably joint) setting out what they consider should happen on return of the children (e.g. where the children are to live on their return) and any consequential amendments to the Interim Orders sought as a result.

Result

[10]   I make the following orders in addition to those set out in my judgment  of  20 February 2019 which continue to have full force and effect:

2      ASK v SK [2010] NZFLR 333; SS v HKM [2010] NZFLR 333.

(a)DSG shall  take  all  reasonable  steps  to  return  the  children  to  New Zealand. Those steps shall include, without limitation, the orders set out in (b) and (c) below.

(b)Within seven days of being served with these orders, DSG shall:

(i)send passport photos of L to SG; and

(ii)inform SG whether P’s and T’s passports are still valid and if not send passport photos of P and T to SG;

(c)Within seven days of being informed that the passports are ready for collection, DSG shall:

(i)collect the passports; and

(ii)make travel arrangements (including booking flights) for the return of the children to New Zealand at the next available date; and

(iii)serve counsel for the other parties with the flight and travel itineraries for the children.

(d)The parties shall file and serve a memorandum addressing the matters set out in [9] above by 5.00 pm, Friday, 24 May 2019.

Edwards J