SG v DSG - [2019] NZHC 218

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. SEE ALSO [84] OF THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001137

[2019] NZHC 218

BETWEEN
SG

Plaintiff

AND

DSG

Defendant

Hearing: 13 February 2019

Counsel:

M A Twentyman and A M Sanders for the Plaintiff A Hansen for the Defendant

U Patel for the Children

Judgment:

20 February 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 20 February 2019 at 1.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Counsel: A Hansen, Auckland
U Patel, Auckland

Solicitors: Morrison Kent, Wellington

SG v DSG [2019] NZHC 218 [20 February 2019]

[1] This case concerns three young boys: L, aged five, and his twin brothers (P and T), who are four years old. The children are currently in India. Until very recently they were full-time residents at a boarding school. They are now day students at that school, and are living with their paternal grandmother. Their estranged parents both live and work in New Zealand.

[2] The mother, Ms G, seeks interim orders under s 35 of Care of Children Act 2004 (COCA) for orders placing the children under the guardianship of the High Court to facilitate their return to New Zealand, pending the determination of the substantive proceeding. That substantive proceeding is set down for trial in September 2019. Ancillary orders appointing Oranga Tamariki as the Court’s agent, and providing for the children’s day-to-day care are also sought. The mother says that these orders are the only way of ensuring the children’s best interests and welfare are protected from the psychological harm caused by their ongoing separation from both parents.

[3] Ms Patel was appointed counsel for the children. She supports the mother’s application. She considers the psychological risk to the children of continued separation from both parents requires their immediate return to New Zealand pending the determination of the substantive proceeding.

[4] The father, Mr G, opposes the application. He says the children are settled in India and are well cared for there. He says that the mother poses a risk of physical harm to the children, and that uplifting them from their current surroundings would cause them psychological and emotional trauma.

Key events

[5] Mr G came to New Zealand in 2002 and has been a permanent resident since 2005. He returns to India on a regular basis to visit family. In 2006 he began boarding with Ms Gillian Warwick. He is currently working as an independent contractor.

[6] In 2010, Mr G returned to India and he met and married Ms G on…

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 218
Case: [2019] NZHC 218
Decision Date: 20 February 2019

CaseChat Overview and Summary

SG v DSG [2019] NZHC 218, was a case involving three young boys, L, P, and T, who were the subject of a guardianship application under the Care of Children Act 2004. The children were currently residing in India, with their paternal grandmother, and the parents were estranged. The mother sought interim orders to return the children to New Zealand, arguing that their ongoing separation from both parents was causing psychological harm. The father opposed the application, claiming the children were settled in India and well cared for there. The court had to decide whether the children's best interests and welfare would be protected by returning them to New Zealand. The court found that returning the children to New Zealand was in their best interests, at least on an interim basis, as it would protect them from ongoing separation from both parents, and facilitate ongoing consultation and co-operation between parents. The court appointed Oranga Tamariki as the Court’s agent to facilitate the return of the children to New Zealand, and to monitor their placement once back in New Zealand. Upon their return, the children's mother was appointed agent of the Court for the purpose of having the day-to-day care and control of the children, but on condition that both she and the children reside with Ms Gillian Warwick. The court also made orders suppressing the names and any details identifying the children and members of their family. Access to the Court file was also prohibited without leave, and leave shall not be granted without the parties being heard.

Orders