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

Last Updated: 6 September 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 place in New Zealand;

(c) The natural forum will be the one with which the action has the most real and substantial connection, including factors affecting convenience or expense (such as availability of witnesses), the law governing the relevant transaction and the places where the parties respectively reside or carry on business; and

(d) Special circumstances by reason of which justice may require a stay not to be granted will include consideration of factors such as the inability of the plaintiff to obtain justice in the foreign jurisdiction, advantages which the plaintiff may derive from involving the New Zealand jurisdiction and the application of any relevant limitation periods.

[5] Other factors that have been identified as potentially relevant include whether the foreign court is able to grant the relief sought, enforcement issues, procedural advantages in one or other of the jurisdictions and whether there is a tactical element in the application for stay rather than a genuine desire for trial in the other forum.³

[6] In the context of proceedings brought under CoCA, there are further considerations, particularly where the alternative forum is not a Hague Convention signatory (which India is not). In N v O, Panckhurst J said that in such circumstances:

The required approach was to enquire as a first step whether the New Zealand Court should finally determine custody, access and related matters or whether it was in the best interests of the child for such issues to be decided in the jurisdiction from which he had been removed. If so the appropriate course was to make interim orders designed to secure the return of the child to its home country to enable final determinations to be made there.⁴

The children’s current circumstances

[7] The oldest of the three children is L, who is five years old.⁵ His siblings, P and T, are aged three.⁶ They were born in New Zealand and are New Zealand citizens. The three children are resident at a private boarding school in Bangalore, Global

3. Schumacher v Summergrove Estates Ltd, above n 1, at [30]; Bomac Laboraties Ltd v Life Medicals (MSDN BHD) HC Auckland CIV-2010-404-4654, 5 August 2011 at [13]; Bomac Laboratories Ltd v Life Medicals (MSDN BHD) [2012] NZHC 363.
4. N v O [2004] NZFLR 926 (HC), citing Lehartel v Lehartel [1993] 1 NZLR 578 (HC). See also CG v SG (2005) 24 FRNZ 502 (FC) at [31]–[33] and AND v MNN FC Christchurch FAM-2001- 009-341, 8 July 2011.

⁵ Born 6 June 2013.

⁶ Born 16 December 2014.

International School. They were placed there in June this year by Mr G. Before that they had resided at another school, the Divine Child School in Ahmedebad since late 2017.

[8] Mr G has produced a letter said to have been written by the principal of the Global International School on 31 July 2018. The letter includes the following information about the care arrangements:

Global International School is more than 9 years old and has over 3,000 students at nursery, primary and College levels. It is one of the best residential school (sic). It has boarding facilities for both girls and boys. The minimum age is three years for admission. The school has ICSE and state Board syllabus. It has classes from nursery to twelfth Standard.

Our services and support network for our younger students are extensive and include separate wardens for the boys’ and girls’ hostels. Children can board during the school week and return home on the weekends or they can board for the school term and return home on the holidays. We also have day students that attend school during the day and go home in the afternoon.

The children’s warden reports to me that the children are very happy when they are in the hostel as the school has a separate floor for young children where they play and hear stories in the evening before going to bed or they watch the National Geographic channel or cartoon on TV (limited to maximum of one hour a day). They have a separate playground for young children. The playground is properly fenced and covered and is situated next to their hostel so it can be accessed easily and the children can play safely. The children are always monitored. They are never left on their own, even at night, there is someone sleeping in the hostel with them. The school also has a main playground where the children can play within school time, also with supervision.

The children’s father has told me that he anticipates that the children will become weekly boarders at some point so they can spend weekends with him when he returns to India and their grandmother and aunt and other family members.

I understand that the children’s mother, [Mrs G], lives in New Zealand. I am told by [the hostel warden] that [Mrs G] has been given his name and contact details and is able to speak to the children by making arrangements with him. According to [the hostel warden] [Mrs G] has been in regular touch with him to speak to the children and arrangements have been made for her to speak (by video and audio calls) to the children which are fixed in advance. I can confirm that if [Mrs G] came to the school she would be able to see the children on the school grounds and in such other ways as are agreed between her and the children’s father. I can confirm that since the children have been at Global International School, their grandmother [LG] has attended school numerous times to see them. On the occasions I have been present when she has visited the children and I have observed them to greet her warmly and to be happy to see her. The children’s father and Aunty call and talk to the

children frequently. No member of mother’s family have been to the school or contacted the school to speak to the children.

[9] Mr G’s position is that, ultimately, he intends to reside permanently in India and considers that it is best for the children to remain in India. There are legal proceedings on foot in India that can resolve the current dispute between him and Mrs G over the extent and nature of contact Mrs G should have with the children; Mr G says that he is agreeable to Mrs G seeing the children in India but that while she is threatening to take them her contact should be supervised or monitored.

How did this situation arise?

[10] The arrangements I have described above would be regarded by most New Zealand families as highly unusual. How such young children came to be living apart from their parents, indeed from any member of their family, is a matter of bitter dispute. Mr G, supported by affidavits from his mother and sister, allege that Mrs G was unable to cope with the children, was not interested in looking after them and was prone to hitting them. Mr G says that he placed the children in a residential school for their own safety. Mrs G, supported by a family friend, denies any instance of violence towards the children and says that she enjoyed motherhood and was a loving and caring parent.

[11] It is not possible to record the details of the respective accounts given by the parties and their witnesses, much less reconcile them. The summary that follows endeavours to record the general history of the parties and to capture the most significant events described in the affidavits.

[12] Mr G came to New Zealand in 2002. He has a professional occupation and has worked here more or less continuously since then. Most years he has returned to India to visit his family. Between 2004 and 2009 these visits ranged between two and four months. In 2006, he began boarding at a private house in Auckland with Gillian Warwick. In 2009, Mr G told Ms Warwick that he was under pressure from his family to marry and he returned to India in 2010 for six months, during which time he married Mrs G. The couple returned to New Zealand and moved into a flat attached to
Ms Warwick’s house. Ms Warwick and Mrs G became friends and are still close. Mrs G now boards with Ms Warwick.

[13] In 2013, L was born at Auckland Hospital having been conceived through IVF in India. Mr G’s mother, Mrs G senior, came to New Zealand to provide help and support for the couple and stayed for nine months.

[14] The following year, Mr and Mrs G returned to India so that Mrs G could undergo further IVF treatment with a view to conceiving a second child. She became pregnant with the twins and in November 2014, Mrs G senior travelled to New Zealand again to provide help and support. The twins were born in December 2014.

[15] In August 2015, Mrs G and the three children accompanied Mrs G senior back to India for a visit. Mr G was to follow a few months later, in time for Diwali. During the visit, they went to Mrs G senior’s house in Jodhpur. Mrs G senior and Mr G’s sister, VG, say that Mrs G was inattentive towards the children, rough with them and would go out for long periods without them. During the visit, Mrs G travelled to another village to see her parents, taking the children. Mrs G senior arrived unannounced and insisted that she return to Jodhpur.

[16] Mr G says he was contacted by his mother who was concerned about the state of the children when they visited Jodhpur. He came to India and when he arrived in Jodhpur he argued with Mrs G about her care of the children and reprimanded her for hitting them. She left the house, returning later with members of her family, who behaved aggressively towards him. The next day Mrs G left for three days, even though the twins were being breastfed, to teach them a lesson. During that time Mrs G and her family contacted Mr G with various demands regarding the conditions on which Mrs G would agree to return.

[17] For her part, Mrs G alleges that when Mr G arrived in Jodhpur he said that they were to return to Ahmedebad and when she protested that she wanted to stay to see her parents and go to her sister’s wedding, he assaulted her. She went to her uncle’s house and returned with him, but when the conversation became heated she decided to spend the night with her uncle. The next day Mr G came to the uncle’s house. He
suggested that Mrs G remain in India with Mrs G senior. But Mrs G wanted to keep her family together. Mrs G says that Mr G then insisted that she could only return to New Zealand with him if L stayed behind with his grandmother, promising that L would return to New Zealand by his third birthday. Mr G says that L only stayed behind because Mrs G’s family insisted that Mrs G could not look after all the children herself.

[18] L never returned to New Zealand. In October 2017, Mr and Mrs G returned to India with the twins. Mrs G says that she was tricked into returning to India by Mr G telling her that he had purchased a business in India and that his mother needed surgery and the family was going to settle in India together. To her surprise, they did not stay in the family home, but in a hotel and then rented accommodation. Mr G would take the children to his mother’s house, leaving her behind.

[19] On 14 November 2017, Mr G took the children on a visit to a temple and stayed away all night (Mrs G presumed with his mother). He returned without the children and told Mrs G that he wanted a divorce. He refused to return the children and Mrs G did not know where they were. It was several weeks later, after Mr G had returned to New Zealand, that Mrs G learned that he had placed the children in a residential school.

[20] Mr G’s account is that the couple had already agreed that they would separate prior to returning to India. He says that they had agreed that the children would be in his sole custody and would be enrolled in a private boarding school. He was to negotiate the final terms of the separation agreement with Mrs G’s family. He said that Mrs G refused to live in her mother-in-law’s house, with the result that he had to rent a property in Ahmedabad. Mrs G’s father initially refused to become involved in negotiating the terms of separation and when they did eventually meet (bringing Mrs G’s uncle) he was aggressive and hit Mr G. After that, Mrs G returned to her family home in Jodhpur. Mr G made arrangements for the children to move to a private residential school, the Divine Child School. He acknowledges that he did not tell Mrs G that he had done that; he said that he feared for the children’s safety and was worried that Mrs G and her family would take them and hold them for ransom.
[21] On 18 November, Mr G returned to New Zealand and resumed work. Sometime in the next few weeks the children moved to the school. Mrs G was subsequently told where the children were and was able to see them, but was not permitted to remove them.

Legal proceedings in India

[22] It is common ground that there are or have been several separate legal proceedings filed in India relating to Mr and Mrs G and their family. Only one is still extant, though Mrs G has protested the jurisdiction.

[23] Mr G filed proceedings in Ahmedabad on 6 November 2017 seeking a divorce and custody of the children. The proceeding was brought by Mr G alone rather than as a joint application, which is inconsistent with Mr G’s claim that he and Mrs G had agreed that “on returning to India we would immediately file for divorce”.⁷ It is consistent, however, with Mrs G’s claim that Mr G telling her he wanted a divorce came as a surprise to her on 14 November 2017. It is in these proceedings that Mrs G has filed a protest to jurisdiction which is to be determined on 28 August 2018.

[24] In the divorce/custody proceedings, Mr G makes numerous serious allegations against Mrs G, including that she: deliberately failed to follow medical instructions during her pregnancy, leading to L being born prematurely; did not want the second pregnancy because she did not want pregnancy; failed to take care of Mr G and the children; told the twins “she will kill them because she can’t stand them. She hits them without a reason”; had been treated by a psychiatrist; had said that “if separated she would take custody of our kids even though she admitted that [Mr G] will take better care but just to teach me a lesson she will destroy my kid’s (sic) future also”; “would threaten to harm the kids by saying she will force my kids to jump from the bridge or throw them in front of train”; had beaten Mr G “mercilessly”.

[25] In November 2018, Mrs G complained to the police in Ahmedabad alleging that Mr G had taken the children and her passport and the children’s passports. She then filed proceedings in Jodphur seeking to re-establish marital rights and for interim

⁷ Affidavit of [Mr G] 3 July 2018 at paragraph 89.

orders under the Protection of Women from Domestic Violence Act 2005, including for custody of the children. I was advised from the bar that these proceedings have been withdrawn.

[26] Finally, Mrs G brought proceedings in January 2018 against the Divine Child School and also naming her mother-in-law and sister-in-law. In this proceeding Mrs G sought an order for a search warrant on the basis that the children had been wrongfully detained. Mr G is very critical of Mrs G in relation to this proceeding, which was ultimately dismissed. In particular, in his affidavit of 3 July 2018 he accuses Mrs G of lying to the Court in India by saying that she did not know where the children were.

[27] It is, however, evident from the translated decision that this is not what Mrs G said; the translation refers to the fact that she had been to the school to see the children on 5 January 2018, and was told that, on Mr G’s instructions, she was not to see the children and that the children were at the school without her consent. The part of the translated decision of the Court that Mr G says was a finding that Mrs G had lied to the Court merely records that submission being made by Mr G’s attorney. It is not the finding of the Court. On my reading, the Court’s decision was that no search warrant could be issued unless the Court was satisfied that the person or persons who were the subject of the application were “wrongly confined” and the Court was not satisfied that was the case because the children appeared to be in the custody of their grandmother and aunt.

Application for stay or dismissal

Jurisdiction of the New Zealand High Court

[28] Under s 30 of CoCA, the High Court has concurrent jurisdiction with the Family Court under s 31, in addition to its inherent parens patriae jurisdiction. Section 126 of CoCA relevantly provides that:

(1) The Court has jurisdiction under this Act in any of the following cases:

...

(c) If the child, a person against whom an order is sought, or the applicant, is, when the application is made, domiciled or resident in New Zealand.

(2) Despite subsection (1) the Court may decline to make an order under this Act if –

(a) neither the person against whom it is sought nor the child is resident in New Zealand; and

(b) the Court is of the opinion that no useful purpose would be served by making an order or that in the circumstances the making of an order would be undesirable.

[29] Clearly, jurisdiction exists by virtue of s 126(1)(c) because, even though the children are not resident in New Zealand, the applicant, Mrs G, is resident in New Zealand.

[30] Ms Hansen, for Mr G, argued that the Court nevertheless has the discretion to decline jurisdiction by virtue of s 126(2) because Mr G was neither resident nor domiciled in New Zealand because it was his intention to return to India when his work commitments ceased, which could happen shortly. I do not accept this submission. The wording of s 126 makes it clear that the Court is concerned with the current residency arrangements, not with what the situation may be at a later time. It is clear on the facts that Mr G is resident in New Zealand.

[31] The issue of domicile does not arise in the context of s 126, but Ms Hansen sought to argue that the issue of domicile of both Mr G and the children was relevant to the broader question of whether the children’s real connection was with India rather than New Zealand. She argued that Mr G should not be regarded as domiciled in New Zealand, given that his work commitments could come to an end at any time and he intends to return to India permanently when that happens, that he owns land in India but not here and that his family connections are in India, not here. She argued that the children should similarly be regarded as domiciled in India because of the length of time they had spent there (particularly L) and their strong family connection there.

[32] I do not see that the issue of domicile is relevant to my decision. But since it has been raised, I note that it is the position of the children that matters and that I accept Ms Twentyman’s submission for Mrs G that the application of s 6 of the Domicile Act 1976 has the effect of deeming the children to be domiciled in New Zealand. Section 6 of the Domicile Act relevantly provides that:

• (1) This section shall have effect in place of all rules of law relating to the domicile of children.

(2) In this section child means a person under the age of 16 years who has not married.

(3) A child whose parents are living together has the domicile for the time being of its father.

(4) If a child whose parents are not living together has its home with its father it has the domicile for the time being of its father; and after it ceases to have its home with him it continues to have that domicile (or, if he is dead, the domicile he had at his death) until it has its home with its mother.

(5) Subject to subsection (4) a child whose parents are not living together has the domicile for the time being of its mother (or, if she is dead), the domicile she had at her death).

[33] On the evidence, the children have never had their home with Mr G alone because Mr G moved back to New Zealand on 18 November 2017. As a result, they must take the domicile of their mother, which is New Zealand.

[34] Clearly, therefore, this Court has jurisdiction to consider the issue of guardianship of the children raised in Mrs G’s application. But the parties did not specifically address the jurisdiction of the Family Court in Ahmedabad. L, P and T are New Zealand citizens. I was advised by Ms Twentyman, without objection, that dual Indian/New Zealand citizenship is not permitted. No evidence was provided as to the status of non-Indian citizens in the context of proceedings where the children are not Indian citizens and neither parent is resident in India.

[35] Mr G regards the fact that the children are New Zealand citizens as of little moment; he has deposed that the children were born in New Zealand because he and Mrs G wanted them to have options when they were adults “but their home is India and that is where they belong”. He considers that the Indian Court can resolve the matter. As noted already, Mrs G has filed a protest to jurisdiction. For present purposes, I proceed on the basis that the Family Court in Ahmedabad does have jurisdiction.

Substantive law

[36] Very limited evidence was provided as to the substantive Indian law relating to the care of young children in situations such as this. Mrs G’s lawyer in India provided an affidavit advising that in India it is settled law that the paramount consideration is the welfare of children and the welfare of children is always with the parents and the mother is a natural guardian of a minor under the age of five years. The affidavit filed by Mr G’s lawyer did not address the issue of Indian law. As a result, I have little information about the likely approach an Indian court would take to this case.

[37] Under New Zealand law, L, P and T would have the benefit of CoCA. Specifically, s 5(a) requires that their safety be considered. This is, clearly, important to Mr G, given his allegations against Mrs G. Ms Hansen submitted, however, that because of the allegations against Mrs G, it is not practical to permit the children to come back to New Zealand because, before any parenting order could be made in her favour, a safety assessment would need to be made. In dealing with this issue, I note that the allegation of violence by Mrs G is strongly disputed. While Mr G and his mother and sister all say they have seen Mrs G hit the children, Mrs G vehemently denies doing so and is supported by Ms Warwick, who lived in close proximity to the family and considered that Mrs G did not lack parenting skills but, rather, was “very loving” with the children. I note, too, that there is no suggestion of any significant or lasting injury.

[38] I do not accept that the allegations should, in this case, be an insuperable barrier to New Zealand being the appropriate forum. When any allegation is made of violence against a child, the court is acutely aware of the need to minimise the risk to the child. However, in this case there is no evidence that the risk to the children is such as to make this issue the determinative factor in the forum non-conveniens argument. It is a factor but not the only factor.

[39] As to the other relevant aspects under CoCA, s 5(b) provides that a child’s care, development and upbringing is primarily the responsibility of the parents and guardians. If the children are not to be in the care of their parents then it is nevertheless important that the parents have a genuine role in their upbringing and a relationship
with them; under s 5(c) a child’s care, development and upbringing should be facilitated by ongoing consultation and co-operation between the child’s parents, guardians and any other person having a role in the care of the child under a parenting or guardianship order.

[40] It is evident from the current arrangements that neither parent is having an effective role in the upbringing of their children and, in particular, Mrs G is not able to have a meaningful relationship with them. Mr G’s attitude is that the lack of any real relationship between Mrs G and the children is simply a function of Mrs G’s choice to stay in New Zealand. It is difficult to know what weight would be put on this aspect in the Indian proceedings, particularly in relation to L who has turned five.

[41] It is also clear that, for Mr G, the involvement of his mother and sister in the lives of the children is very important. Section 5(e) recognises that a child should continue to have a relationship, not only with both his or her parents, but also the wider family group.

[42] It seems to me that the issues that concern both Mr and Mrs G would be carefully considered under CoCA, with the focus on what is in the children’s best interests. Given the relative lack of evidence as to how these issues would be dealt with under Indian law, I cannot be satisfied that India offers a more appropriate forum in which to address the issues that clearly concern both Mr and Mrs G.

The children’s connection with India and New Zealand

[43] The most significant aspect of the argument centred on whether the children’s connection to India was stronger than their connection to New Zealand. Ms Hansen pointed out that L, in particular, had spent a good deal of time in India; now five, he has lived there since he was two. Hindi is his first language. He is well settled at school and said to be happy. P and T, now aged three, have been in India without their parents (not merely visiting) for some nine months. They, too, are said to be settled and happy. As a result of L’s staying in India in 2015, the twins spent most of their infancy without contact with him. Now, however, the three children are said to be close. Mrs G senior has moved to Bangalore to be closer to the school at which the children reside and sees them frequently. Their aunt speaks to them every second day.
In short, it is said that their social, familial and cultural connections are much closer to India than to New Zealand.

[44] As against these facts, the children spent their first two years in New Zealand under the full-time care of their mother. During this time, they attended early childhood education centres. The affidavit of Ms Stuart speaks about the eight months during which the twins attended the ABC Epsom centre and of Mrs G’s interest and involvement in what the children were learning. For the twins, their time in India has been a modest proportion of their lives and it has been spent almost entirely at a residential school being cared for by school staff rather than family. Their intimate family contact essentially ceased when they were placed in a residential school.

[45] Given the children’s Indian parentage, the family’s regular visits to India and contact with wider family, their Indian culture was always going to be a strong influence, as one would expect. But in the case of such young children, the connection to one country or another is predominantly about their connection to family. In this case, the children’s connection to India owes as much to the function of the arrangements that Mr G has put in place as to his mother’s and sister’s contact with them.

[46] I do not know what the children themselves think. Ms Hansen asserted that no decision in the substantive application could be made without the views of the children being sought. It may be that L, at least, could express a view. But, in the circumstances, I do not consider that the lack of evidence as to that aspect should affect my determination of the forum non-conveniens issue.

Cost and convenience

[47] Most of the affidavits filed in this proceeding have been filed by witnesses located in India. Ms Hansen submitted that the cost and convenience strongly favoured India as the more appropriate forum because of the number of witnesses located there and difficulty of evidence being given by AVL as a result of the time difference.
[48] However, the critical witnesses, those who have knowledge of Mrs G’s parenting of the children and the circumstances in which the children came to be living in a residential school, are few in number. Mrs G senior and VG are both in India, as are Mrs G’s father. Mr and Mrs G are both in New Zealand, as is Ms Warwick. There will be cost in whichever forum the case is heard. And there will be the inconvenience of arranging AVL in whichever forum the case is heard. It seems to me, however, that New Zealand is the more convenient because the most critical witnesses, Mr and Mrs G themselves, not only live in New Zealand but also work here. To go to India for a hearing will require both to take time off work and will involve cost that may result in a level of hardship, particularly for Mrs G. In comparison, Mrs G senior does not work and is accustomed to visiting New Zealand. I could not discern from VG’s affidavit what her circumstances are.

[49] The more peripheral witnesses come from both India and New Zealand. The allegations that Mr G makes mean that medical evidence from New Zealand may be needed regarding L’s birth and the early years of the children’s lives, during which they will have been seen by medical professionals for routine examinations, vaccinations and so on. The evidence of their early childhood teachers will come from New Zealand.

Enforcement

[50] Ms Hansen suggested that the enforcement of any order made by this Court would be problematic and that, as a result, there would be little utility in this Court embarking on the determination of the substantive application.

[51] Mrs G’s lawyer in India, Karmendra Singh, deposed that Indian courts respect the decisions of the foreign court and there have been a number of instances in which Indian courts have ensured that the decision of the foreign court could be implemented in India. Ms Twentyman drew to my attention the decision in AM v PM in which Gendall J issued an order for the arrest of a defendant for having failed to comply with the orders of this Court to return children from India.⁸ Gendall J said:⁹

⁸ AM v PM [2012] NZHC 1440, (2012) 29 FRNZ 123.

⁹ At [11].

I wish to add that according to the judgment of Mallon J, the children have New Zealand nationality and are under the guardianship of the New Zealand High Court. It follows that this Court has the obligation and jurisdiction to deal with and protect its infant citizens wherever they may be. Just as Mallon J sought the assistance of judicial and administrative bodies in the Republic of India, I do likewise.

[52] In the circumstances, I do not see that potential difficulties over enforcement of any order that may be made ought to determine the forum.

Result

[53] In summary: despite the time they have spent in India, the children’s connection, particularly that of P and T, is not markedly closer to India than to New Zealand; the children are not Indian citizens and there is no evidence as to what their rights are under Indian law; both their parents are living in New Zealand; they are not living with any member of their extended family; there will be cost and inconvenience whether the issues are determined in New Zealand or India, though because the critical witnesses live in New Zealand, this factor will probably be less significant if the hearing is in New Zealand; there are allegations of violence by Mrs G but I do not consider the risk to be so great as to displace the other factors.

[54] Mr G has failed to discharge the onus of showing that New Zealand is not the natural and appropriate forum for the issues that arise in this case and I am not satisfied that India is the more appropriate forum. The application for dismissal or stay of the proceedings is therefore dismissed.

[55] 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.








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