Ishan v Krithigan [2020] NZFC 10248

Published 28 January 2022

Wrongful removal — welfare and best interests of child — child abduction — day to day care of child — guardianship direction — non-removal order — immigration fraud — forum conveniens — "protection" — Care of Children Act 2004, ss 4, 5, 6, 46R, 48, 77 & 78 — Immigration Act 2009 — Ministry of Business, Innovation and Employment v Sriya Ishan [2020] NZDC 1505 — Ishan v Krithigan [2020] NZFC 8000 — Bashir v Kacem [2010] NZFLR 865 — Kacem v Bashir [2010] NZFLR 884 — C v W [2005] NZFLR 953 — Allen v Wade [2018] NZFLR 893 — Baker v Harding [2018] NZHC 2885 — Lowe v Way [2015] NZHC 93 — Lowe v Way [2015] NZFLR 547. The applicant mother applied for orders granting her day-to-day care of the parties' child; a guardianship direction that New Zealand was the child's habitual residence; and an order that the child not be removed from New Zealand. The respondent father opposed all of the applications, and sought for any non-removal orders to be revoked. The applicant had wrongfully removed the child from Malaysia and brought her to New Zealand. In New Zealand she attempted to deceive immigration authorities that the respondent father had consented to the removal. As a result she had been convicted in the District Court of offences against the Immigration Act. She had also entered into a relationship with a local man; the Court viewed this relationship as a means to achieve New Zealand residence. The Court also observed that Immigration New Zealand seemed to be waiting for the outcome of the current proceedings before taking action to remove the applicant and the child to Malaysia. In assessing the evidence of the parties and various witnesses, the Court found the applicant to be wholly untrustworthy and willing to change her story whenever it suited her. The Court found that she persistently and falsely portrayed the respondent as violent and abusive; further, she had been deceiving and manipulating the respondent and others for some time in order to achieve her goal of moving with the child to New Zealand. The Court found the applicant's witnesses to also be unreliable. Although the evidence suggested that the child wished to remain in New Zealand and have no contact with the respondent, the Court decided to place no great weight on these views. Although this was a rare step, the Court found that the child's views were heavily influenced by the applicant's manipulative behaviour and her false allegations against the respondent. The Court had found the respondent to be trustworthy, and the applicant's allegations against him to be false. By contrast the applicant's behaviour constituted emotional abuse against the child. In light of these findings the Court decided that the child's interests would best be served by ordering that the child return to the care of the respondent in Malaysia. Although this would be traumatic for the child in the short term, the respondent and his family would provide her with a loving and supportive environment. The Court ordered that the respondent have day-to-day care of the child, with the applicant allowed contact under certain court-imposed conditions and as agreed between the parties. Any non-removal orders were to be discharged once the child's travel arrangements were finalised. Judgment Date: 15 January 2021. * * * Note: names have been changed to comply with legal requirements. * * *