AM v PM HC Wellington CIV 2011-485-2303 [2011] NZHC 1489 (7 November 2011)

Last Updated: 14 November 2011

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE WWW.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CIV 2011-485-2303}

UNDER the Care of Children Act 2004

BETWEEN AM Applicant

AND PM Respondent

Hearing: On the papers

Judgment: 7 November 2011

_{JUDGMENT OF MALLON J}

Introduction

[1] The applicant (the mother) applies for an order that two of her children be placed under the guardianship of this Court pending further order of the Court. The application is sought to facilitate the children’s return from India where they are presently with the respondent (the father). The children were holidaying with the father and were due to return on 29 October 2011 but did not do so. The mother says that the father has told her that he has decided to take steps to keep the two children

_{in India.}

AM v PM HC WN CIV 2011-485-2303 7 November 2011

[2] The mother and the father have three children: aged 15, 11 and 5. Pursuant to parenting orders made in the Family Court of New Zealand on 12 August 2011 the mother has day-to-day care of the children and exclusive responsibility for their day- to-day living arrangements subject to conditions stated in the order. The parenting orders provide that the children are to spend school holidays with their father in India and that the father agrees to return them to the mother’s care in New Zealand at the end of each contact period. The orders further provide that the children’s nationality is to remain as New Zealanders and neither parent will seek to change this. Subsequent to the order being made, according to an affidavit from the mother the following events have occurred.

[3] The children travelled to India with their father for the October school holidays. In advance of this the father had provided the mother with the children’s itinerary which showed that the children would be returning to Wellington on 29

October 2011. On 28 October 2011 the mother learned through a friend that the father was not going to return the two younger children. The mother attempted to speak to the father by telephone but he did not answer her call. Shortly after this, the eldest child telephoned the mother from the airport in India to say that the two younger children were not with her. The mother spoke to the father who told her that she would hear from his lawyers. The eldest child duly arrived in Wellington on 29

October 2011 but the two younger children did not.

[4] The mother has tried to speak with the two younger children by telephone since then but has not been able to. She has spoken to the father. He told her that he was not going to return the two children to New Zealand and that he had filed a custody application in India. On 31 October 2011 the mother’s lawyer sent a facsimile letter to the father’s lawyer in India advising that the mother required the two children to be returned immediately in accordance with the parenting orders and that the mother would take legal action to secure their immediate return. No response has been received to that letter.

[5] New Zealand is a signatory to the Hague Convention of the Civil Aspects of International Child Abduction. India is not. This means that, although the children have been wrongfully retained in India, sub-part 4 of the Care of Children Act 2004 does not apply to facilitate the return of the children. In these circumstances the courts have considered it appropriate to act as best they can to provide a remedy. That remedy has taken the form of placing the child under the guardianship of the Court and inviting the judicial and administrative bodies of the relevant country to render assistance in ensuring that the children are returned as soon as possible to this Court’s jurisdiction. Examples involving a similar situation as that which have

occurred here are SS v HKM[1] and ASK v SK.[2]

[6] I consider that the mother has made out grounds for the exercise of the jurisdiction to place the two younger children under the guardianship of the Court. The children’s nationality is New Zealand. There are parenting orders made by the Family Court of New Zealand in place. The father’s refusal to return the children is in breach of those orders. By placing the children under the guardianship of the Court the return of the children to New Zealand may be facilitated. This does not prevent the father from seeking to vary the parenting orders if he wishes to do so by making an application in the Family Court of New Zealand.

[7] I am also satisfied that is appropriate to exercise the jurisdiction without notice to the father. The father has had the opportunity to respond to the letter from the mother’s lawyer but has failed to do so. The evidence from the mother indicates that the father does not intend to comply with the orders. The mother is concerned that if notice is given to the father then he will go into hiding and be difficult to

_locate.

Orders

[8] I make the following orders:

a. An interim order pursuant to s 31 of the Care of Children Act 2004 placing the two children under the guardianship of the Court pending further order of the Court;

b. That the Respondent make immediate arrangements to ensure that the two children are returned to the jurisdiction of New Zealand straightaway;

c. That upon the return to New Zealand all three children are to reside with their mother, the Applicant in the Wellington area until further order of this Court or of the Family Court;

d. That upon the return to New Zealand of the two children their passports and travel documents be handed to the Applicant for safe keeping until further Order of this Court or of the Family Court;

e. A direction pursuant to r 18.4(1) to the effect that if the Respondent does intend to make an application to vary or discharge the current Parenting Order then he be permitted to do so only once the children have been returned back into the Applicant’s care in New Zealand.

[9] Additionally I respectfully invite all judicial and administrative bodies in the Republic of India to render assistance in ensuring that the two children are returned as soon as possible to the jurisdiction of New Zealand.

Mallon J

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[1] _{SS v HKM HC Auckland CIV-2010-404-1384, 12 March 2010.}

[2] ASK v SK [2010] NZFLR 333.