SG v DSG - [2018] NZHC 2209

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000902

CIV-2018-404-001137 [2018] NZHC 2209

BETWEEN
SG

Applicant

AND

DSG

Respondent

Hearing: 17 August 2018

Appearances:

M A Twentyman for Applicant A Hansen for Respondent

Judgment:

27 August 2018

JUDGMENT OF COURTNEY J

SG v DSG [2018] NZHC 2209 [27 August 2018]

Introduction

[1] This case concerns a five-year-old boy and his three-year-old twin brothers who were born in New Zealand to Indian parents. The parents, Mr and Mrs G, who are separated, still live and work in New Zealand. The children, however, live in a boarding school in India. They were placed there by Mr G, who has applied to an Indian court for custody.

[2] Mrs G wishes to have the children live with her permanently in New Zealand and has applied for an order under s 31 of the Care of Children Act 2004 (CoCA), placing the children under the guardianship of the High Court pending a determination as to their day-to-day care arrangements. Mr G says that issues about the children’s care should be determined in India. He has filed an application under r 15.1 of the High Court Rules seeking an order either dismissing or staying the proceedings on forum non-conveniens grounds.

[3] There is some urgency because Mrs G has filed a protest to jurisdiction in the Indian proceedings, which is expected to be heard on 28 August 2018. It would be desirable for the parties to know the outcome of Mr G’s application before then.

Relevant principles

[4] Where a party has been validly served (which Mr G has) it is for that party to show that there is a more appropriate forum competent to determine the case.1 The application of this general principle in New Zealand was summarised by the Court of Appeal in Schumacher v Summergrove Estates Ltd:2

(a)In general, the burden of proof to persuade the court to exercise its discretion to grant a stay rests on the defendant not just to show that New Zealand is not the natural or appropriate forum for the trial but also to establish that there is another available forum which is clearly or distinctly more appropriate;

(b)If the court is satisfied that there is another forum which is prima facie the appropriate forum for the trial, the burden will shift to the plaintiff

1 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL) at 478; Schumacher v Summergrove Estates Ltd [2014] NZCA 412, [2014] 3 NZLR 599 at [28].
2 Schumacher v Summergrove Estates Ltd, above n 1, at [29] citing Exportrade Corporation v Irie Blue NZ Ltd [2013] NZCA 675, [2014] NZAR 495 at [39] and Spiliada Maritime Corp v Cansulex Ltd, above n 1, at 465 per Lord Templeman and at 484–486 per Lord Goff.

to show that there are special circumstances by reason of which justice requires that the trial of the action should nevertheless take…

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 [2018] NZHC 2209
Case: [2018] NZHC 2209
Decision Date: 27 August 2018

CaseChat Overview and Summary

SG v DSG is a case concerning the custody of three young children born in New Zealand to Indian parents. The children, L, P and T, are currently residing in a boarding school in India. Mrs G, the mother, has applied for an order under section 31 of the Care of Children Act 2004 (CoCA), placing the children under the guardianship of the High Court pending a determination as to their day-to-day care arrangements. Mr G, the father, has filed an application under rule 15.1 of the High Court Rules seeking an order either dismissing or staying the proceedings on forum non conveniens grounds. The legal issues in this case include determining the appropriate forum for the trial, considering the children's best interests and connection to each country, and the potential difficulties of enforcing any order made by the court.

The court considered the relevant principles, such as the burden of proof to persuade the court to exercise its discretion to grant a stay, the natural forum, and special circumstances that may require a stay not to be granted. The court also examined the children's current circumstances, the legal proceedings in India, and the jurisdiction of the New Zealand High Court. The court found that the children's connection to India and New Zealand was not markedly closer to India than to New Zealand, and that both parents were living in New Zealand. The court also found that the cost and inconvenience of the proceedings would likely be less significant if the hearing was in New Zealand, as the critical witnesses lived in New Zealand. The court dismissed the application for dismissal or stay of the proceedings, stating that Mr G had failed to discharge the onus of showing that New Zealand was not the natural and appropriate forum for the issues that arise in this case.

Counsel may address the issue of costs by memorandum filed on behalf of Mrs G within seven days and by Mr G within 14 days.

Orders