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Bernacki v Himona [2020] NZFC 3586 (23 May 2020)

Last Updated: 23 October 2020

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

RESERVE JUDGMENT OF JUDGE S J COYLE AS TO REASONS FOR MAKING AN ORDER FOR PROMPT RETURN (HAGUE CONVENTION)

[TYMON BERNACKI] via THE NEW ZEALAND CENTRAL AUTHORITY v [RUHI HIMONA] [2020] NZFC 3586 [28 May 2020]

[1] Mr [Bernacki], through the New Zealand Central Authority, applied for an order pursuant to s 105(2) of the Care of Children Act 2004 for the prompt return of [Erina Bernacki], born [date deleted] 2019, to Australia.

[2] At the conclusion of the submissions only hearing before me on 26 May, I made an order for prompt return. The purpose of this judgment is to provide the reasons why I made that order.

[3] The onus is on the Central Authority on behalf of Mr [Bernacki] to establish each of the grounds in s 105(1)(a) to (d) inclusive. If the Court is satisfied that on the balance of probabilities the grounds have been established, then pursuant to s 105(2) the Court must make an order for prompt return.1 However, if Ms [Himona] is able to establish one of the s 106 defences, then the Court can exercise its discretion and refuse to make an order for return under s 105(2). In the documents filed on behalf of Ms [Himona] it is clear she relied upon the statutory defences, alleging that:

• (a) Mr [Bernacki] was not exercising a right of custody in relation to [Erina] (s 106(b)(i)).
  
• (b) Mr [Bernacki] consented to or later acquiesced in [Erina]’s removal (s 106(1)(b)(ii)).
  
• (c) There is a grave risk of returning [Erina] to Australia because of the potential for exposure to physical or psychological harm, or a return would otherwise place [Erina] in an intolerable situation (s 106(c)(i) and (ii)).
  

[4] Ms [Himona]’s counsel, Ms Harley, indicated at the outset of her submissions that Ms [Himona] now solely relied upon the s 106(1)(b)(ii) defence; that is that Mr [Bernacki] consented to or later acquiesced in the removal of [Erina] from Australia. The other two defences were abandoned by Ms Harley on behalf of Ms [Himona].

1 Secretary for Justice v HJ [2006] NZSC 97; [2007] 2 NZLR 289; (2006) 27 FRNZ 213 (SC).

[5] Additionally, in terms of s 105(1) Ms Harley submitted that [Erina] had not been unlawfully removed from Australia, and/or that [Erina] was not habitually resident in Australia before the removal. Removal is defined in s 95 of the Act as meaning:

The wrongful removal or retention of the child within the meaning of Article 3 of the Convention.

[6] On the facts of this case, the issue is one of wrongful retention rather than wrongful removal.

Background

[7] Mr [Bernacki] and Ms [Himona] met in [a state in Australia] around three years ago. For most of their relationship time they lived as a couple in a home owned by Mr [Bernacki], his father, and other family members.

[8] While Mr [Bernacki] was born in New Zealand, he has lived in [the Australian state] since 2008. He attended school in Australia and since leaving school has remained in steady employment with a garage door company as a process worker for the last seven years. Australia is for all intents and purposes his home, and it is clear from his affidavit evidence that he has no intention of ever returning to live in New Zealand.

[9] [Erina] was born on [date deleted] 2019 in [the Australian state]. Mr [Bernacki] is registered on [Erina]’s birth certificate as her father. Towards the end of 2019, Mr [Bernacki] and Ms [Himona] decided to come with [Erina] to New Zealand for a holiday and to spend Christmas with family in New Zealand. They travelled together from [the Australian state] to New Zealand, arriving [in December] 2019 on a return ticket, with the three of them due to return to Australia [in January] 2020.2

[10] However, the day before the parties were due to return to Australia with [Erina], Ms [Himona] told Mr [Bernacki] that she would not return with [Erina] as she wanted to visit her father in prison (he being unwell) and she wanted to introduce

2 Exhibit A1 of Mr [Bernacki]’s affidavit dated 12 March 2020.

[Erina] to him. Mr [Bernacki] says that after discussing the matter with Ms [Himona], he reluctantly agreed to [Erina] staying in New Zealand for a further two weeks;3 Ms [Himona] says there was an agreement to her staying for a further two months.4 Either way, it was clear that there was an agreement to [Erina] remaining with his mother in New Zealand for a further period of time.

[11] Mr [Bernacki] returned to Australia and there was regular contact5 between he and Ms [Himona] and between Mr [Bernacki] and [Erina]. However, Mr [Bernacki] says in his affirmation of 12 March that within weeks of his return to Australia he was advised by Ms [Himona] that she was not coming back to Australia with [Erina], and that she intended to remain living in New Zealand. She gave him a number of reasons for remaining, including the ability to receive more money from the New Zealand Government for [Erina], her perception that it was easier to obtaining housing, and the potential for her to engage in educational courses leading to employment. Mr [Bernacki]’s evidence is that:

I objected strongly to [Ms [Himona]] unilateral decision to keep our daughter in New Zealand permanently and then her [sic] comment was, “And there is nothing you can do about it.”

[12] He subsequently sought legal advice in late February 2020 to ascertain what he could do to secure [Erina]’s return, and an application for a return order pursuant to the Hague Convention was signed by him on 12 March 2020.

Was [Erina] wrongfully retained in New Zealand in breach of Mr [Bernacki]’s rights of custody?

[13] Ms Harley confirmed that her client accepted that Mr [Bernacki] had rights of custody in respect of [Erina]. However, in her submission [Erina] had not been wrongfully retained by Ms [Himona]. Wrongful retention occurs where consent is given to a child leaving the country of habitual residence for an agreed period and the child is not returned at the end of the agreed period.6

3 Mr [Bernacki]’s affidavit dated 15 March 2020, at [33].

4 Ms [Himona]’s affidavit dated 8 April 2020, at [32].

5 Via phone and video-conferencing.

6 Punter v Secretary for Justice [2006] NZCA 533; [2007] 1 NZLR 40; (2006) 25 FRNZ 327 (CA) at [40].

[14] In this case there was an agreement that [Erina] could come with her parents to New Zealand. What is in dispute is whether there was a subsequent agreement to [Erina] remaining in New Zealand. While Mr [Bernacki] accepts that he agreed to an extension of a further two weeks to enable Ms [Himona] to take [Erina] to visit her father in prison, he did not agree to an extension beyond that period. Ms [Himona] sets out her evidence that there was an agreement for a further two month period, and that the end of that two month period had not been reached at the time Mr [Bernacki] filed his application.

[15] There is a clear conflict in relation to this aspect of the parties’ evidence, and indeed as I will set out later, conflict as to what was discussed at a meeting on 17 March 2020. I am conscious that this is a submissions only hearing and the parties’ evidence has not been tested through to cross-examination. The Court of Appeal set out the approach where there is contested evidence that has not be tested in Basingstoke v Groot, providing:7

• [39] ...In our view, deciding on conflicts of evidence is done in the usual way, taking into account such factors as any independent extraneous evidence, consistency of the evidence (both internally and with other evidence) in the inherent probabilities. This Court has said that, where it is necessary to assess parental purpose in order to decide on questions of habitual residence, this is to be assessed not only on the basis of the subject of intention of the parents but also on the “objective manifestations of the intent”: see SK v KP at para [75]. Courts will thus no doubt be inclined to attach more weight to the contemporaneous words and actions of the parents (and any independent evidence) and to their bare assertions in evidence as to the position – see Re H (Minors) (Abduction: Acquiescence) 1998] [AC72] at p 90 per Lord Browne-Wilkinson.
  
• [40] After assessing the evidence in the normal way, the Court must decide, on the basis of all the evidence, whether the applicant has proved the matter set out in s 105 of the Care of Children Act (in this case habitual residence) on the balance of probabilities. We recognise that there may be cases where it is not possible, after making due allowance for the absence of cross-examination, to resolve the conflicts of evidence. If that is the case, then the applicant would have failed to discharge the burden and the application will be refused. Such cases would, in our view, be relatively rare. The Judge should, however, articulate why and to what extent the evidence of the parties is accepted or rejected and the effect that this has on the determination...
  

7 Basingstoke v Groot [2007] NZFLR 363; (2006) 26 FRNZ 707 (CA) at [39]-[40].

[16] I accept and prefer the evidence of Mr [Bernacki] that he agreed to an extension of two weeks but not two months. For if he had agreed to an extension of two months, then he would not have been anticipating [Erina]’s return to Australia until at least the end of March. Therefore, he would not have sought legal advice in February regarding the return of [Erina] to Australia, and he would not have filed his application under the Hague Convention in early March. His actions to secure the return of his daughter through legal means in early March are simply inconsistent with his having agreed to a two month extension.

[17] Additionally, in his initial evidence in support of his application for return he sets out his ongoing attempts to seek clarification from Ms [Himona] as to when she would return, and his shock and distress at hearing from her that she would not be returning with [Erina]. He sets out the reasons that Ms [Himona] gave for not returning;8 they are reasons which have validity and give credibility to his narration of events.

[18] Finally, Ms [Himona] herself in her affidavit of 8 April 2020 supports Mr [Bernacki]’s assertion that it was a unilateral decision by her. For she says at [33]:

While I was in New Zealand, I had time to think about our life in Australia and the effects it would have on [Erina] if I was to go back. I had to decide if I was going to go back and live with [Mr [Bernacki]]...or go back to Australia with no education, no job and no eligibility for assistance from the Australian Government and try to live a life with [Erina].

[19] She acknowledges at [34] that Mr [Bernacki] was not happy about her remaining in New Zealand, and that the first time she raised the possibility of a permanent stay in New Zealand was late January 2020.

[20] She sets out her recollection of a phone call on 8 February 2020 and records at [40]:

[Mr [Bernacki]] felt [Erina] would be better off having two parents living together in Australia.

[21] Then at [47] to [49] she stated:

8 Mr [Bernacki]’s affidavit dated 15 March 2020, at [11].

[Mr [Bernacki]] came to New Zealand in March 2020 for [Erina]’s birthday. We had talked about the possibility of getting back together but I did not want to go back to the family environment. [Mr [Bernacki]] and I had discussions with our mother about whether we could return to Australia has [sic] a family and what might be in [Erina]’s best interests. “Despite these discussions at no time did [Mr [Bernacki]] say that I had to return [Erina]. I believe we were still discussing where we would live on a permanent basis.”

[22] In his affidavit in reply dated 15 May 2020 Mr [Bernacki] clarifies how the discussion around the two months eventuated. He says at [34]:

Eventually, approximately two weeks after I had left New Zealand, when I was asking about their return to Australia, her mother told me that she wanted to stay for another two months. I told her that I didn’t want them to stay in New Zealand any longer and I reminded her that she’d agreed for only two weeks. I asked her to come back.

[23] Further, when Mr [Bernacki] returned to New Zealand for [Erina]’s first birthday, he and Ms [Himona] stayed in a motel on the night of 16 March.9 That night Ms [Himona] told him she was now in another relationship and that her new boyfriend would see [Erina] more than Mr [Bernacki]. All this evidence is consistent with her having decided within the two week period that she would not be returning, and not consistent with an agreement that she would return at the end of a further two month period. For she would not have entered into a new relationship in New Zealand if she was intending to return to Australia and to Mr [Bernacki].

[24] Ms Harley in her submissions argued that there had been no wrongful retention as there had not been an actual date by which Ms [Himona] had decided to remain permanently in New Zealand. However, it is clear from the affidavit evidence I referred to including Ms [Himona]’s entering into a new relationship, that she had no intention of returning10 at the end of the two-week period.

[25] While Mr [Bernacki] did agree to [Erina] remaining in New Zealand for a further two week period so that Ms [Himona] could take [Erina] to see her father in prison, I am satisfied the evidence establishes on the balance of probabilities that thereafter Ms [Himona] formed a clear intention of remaining in New Zealand, and at

9 Mr [Bernacki]’s affidavit dated 15 March 2020, at [55].

10. I note that Ms [Himona] has not filed any evidence denying that she had entered into a new relationship.

that point she wrongfully retained [Erina] in New Zealand. I reject her evidence that there was an agreement that she could remain for another two months.

[26] But even if I am wrong in that finding, and even if Mr [Bernacki] had agreed to a further two month extension as submitted by Ms Harley, her submission does not recognise the concept of anticipatory breach. In Secretary for Justice v SB Panckhurst J stated that:11

[51] ... Wrong retention ordinarily arises from the actions of one party, in that their conduct externally confirms a decision and resolve to retain the child or children in breach of the other’s rights. Perhaps, there may be cases where the point of dissent represents the time of retention. That would depend upon the nature of any earlier statements by the other party concerning his or her unwillingness to return to the previous place of residence. If such statements were equivocal, such that it was only at the point of dissent by the left-behind parent that the fact of non-return crystallised, then the dissent may be central to the retention. But I do not regard this case as in that category. S expressed her views in a very forthright manner. There was nothing equivocal as to her future intention.

[27] Thus, Panckhurst J foreshadowed the possibility of an agreement between parties as to a return at a specified time, but prior to the expiration of that date the express communication by one party to the other of a decision to no longer return to the country of habitual residence. Judge Twaddle, accepting the views of Panckhurst J in Secretary for Justice v SB, remarked that: 12

[34] ... If the law does not recognise the concept of anticipatory breach, the left-behind parent would be required to await the planned return date before invoking the convention. In these circumstances there is a risk that the other parent unilaterally would be able to create a change of habitual residence, directly contrary to the aim of the convention. Also, this parent would have the benefit of the prior agreement (the right to stay until the planned return date) and may avoid the burden (the need to return to the country of habitual residence). On the other hand, the left-behind parent would have no ability to enforce his or her rights in relation to the child (for example in relation to the place of residence) and would be left with the burden of the agreement (the child being away from the habitual residence for the agreed period) and none of the benefit (the guarantee the child would return on the planned date) all of which the convention is designed to deter.

11 Secretary for Justice v SB (2006) 25 FRNZ 523; [2006] NZFLR 1027 (HC) at [51].

12 AHC v CAC FC Auckland FAM-2010-004-2326, 7 January 2011 at [34].

[28] Judge Twaddle summarised at [36] the principles to be applied in determining whether there has been retention and anticipatory breach:13

• (a) The unilateral intention of one party not to comply with the agreed arrangement must be communicated to the other party;
  
• (b) The statement of intent must be clear and unequivocal;
  
• (c) The retention may arise from conduct or one or more statements of intent;
  
• (d) The retention is only wrongful where it is in breach of the rights of custody of the other party.
  

[29] I note that case was unsuccessfully appealed, and I adopt the test of anticipatory breach set out by their Honours. On the facts of this case I am in no doubt that Ms [Himona] through her actions made a unilateral decision to remain in New Zealand with [Erina], that she made it quite clear to Mr [Bernacki] that she would not be returning at the end of the two week period and that she then sought to extend her time in New Zealand by a further two month period.14 Those statements were clear and unequivocal both by her words and her actions (including entering into a new relationship) and as a consequence Mr [Bernacki]’s rights of custody were breached. But even if I am wrong in finding that she had clearly told Mr [Bernacki] that she would not be returning with [Erina], he was entitled to assume that she would not be returning at the end of a further two month period due to her subsequent actions and conduct.

[30] Ms Harley further submitted that Ms [Himona]’s decision to remain with [Erina] in New Zealand was only made when she became aware of the application for return, at which point she felt she had no choice but to remain in New Zealand. For the reasons set out above, I have reached a different conclusion. However, even if that was right, that would mean that Ms [Himona] has subsequently and unilaterally made a decision to retain [Erina] in New Zealand in the face of direct knowledge (through the return application) of Mr [Bernacki]’s objection to [Erina] remaining in New Zealand, thus at that point there was a wrongful retention. Furthermore, if that was the

13 AHC v CAC, above n 12, at [36].

14 Mr [Bernacki] clearly never agreed to this extension.

case, there was no evidence of Mr [Bernacki]’s consent or later acquiescence,15 and therefore there would be no option other than to order return.

Was [Erina]’s habitual country of residence Australia?

[31] In her written submissions Ms Harley submits that [Erina]’s habitual place of residence is the country where [Erina] was residing immediately prior to her wrongful retention. Thus, in Ms Harley’s submission New Zealand was [Erina]’s habitual country of residence. I reject that submission as it is contrary to well established case law. In New Zealand the enquiry into “habitual residence” is a broad factual one, taking into account factors such as settled purpose, the actual and intended length of stay in a State, the purpose of the stay, the strength of ties to the State and to any other State (both past and currently), the degree of assimilation into the State (including living and schooling arrangements, and cultural, social and economic integration). In S v M the Court stated:16

In that regard I am drawn back to the words of Lord Brandon in C v S where he said that a person may cease to be habitually resident in a single day provided they move with a settled intention not to return to their previous home but to settle elsewhere. On the other hand he pointed out that the acquisition of habitual residence is not ordinarily achieved in a single day, that an appreciable period of time and a settled intention to remain in the place, was required. These observations to my mind underscore the importance of intention.

[32] I agree with the submissions of Dr Mackenzie that there must be a joint and clearly intended and expressed permanent relocation. Merely keeping options open does not evidentially satisfy a change of habitual residence; much more is required.

The Court of Appeal in Punter v Secretary for Justice stated:17

[112] Leith, “International Child Abduction: Different Approaches to Habitual Residence” (1999) 3 BFLJ 89 makes a similar point (at 90):

“Habitual residence, like domicile or nationality, is a connecting factor that ties a person to a particular country. Unlike domicile, it is a matter of fact to be determined from a general view of the evidence without an in-depth search for the person’s intentions. Unlike nationality, it is not dependent on the formality of citizenship or the

15. For the alleged evidence of acquiescence arose out of a meeting on 17 March 2020, which was before Ms [Himona]’s knowledge of the return application.

16 S v M [1999] NZFLR 337.

17 Punter v Secretary for Justice, above n 6, at [112].

holding of a passport in that country. The term ‘residence’ is being increasingly used as a connecting factor to avoid the technical difficulties that have evolved with the law of domicile. It implies ‘something more than mere physical presence and something less than domicile’ [Petition of Castrinakis (1959) 179 F Supp. 444, 445 (D Mary)].”

[33] On the facts of this case [Erina] was clearly habitually resident in Australia immediately before her holiday to New Zealand and her wrongful retention in New Zealand. Ms [Himona] cannot now seek to unilaterally change that habitual country of residence by her wrongful retention, and then seek to rely upon that unilateral action to assert that habitual residence has now changed. It can only change with the agreement of both of [Erina]’s parents.

[34] For the reasons set out above, Mr [Bernacki] made it clear that he did not agree that [Erina] should remain living in New Zealand. Therefore, I determine that [Erina]’s habitual country of residence was Australia. Indeed, it would fly in the face of the convention for Ms [Himona] to unilaterally retain [Erina] in New Zealand, and to then assert that as New Zealand was the place where she was residing at the time of wrongful retention, that New Zealand had now become the habitual country of residence. That approach would simply defeat the intention of the convention.

Has Mr [Bernacki] acquiesced in the wrongful retention/removal of [Erina]?

[35] Having determined that Mr [Bernacki] has established on the balance of probabilities each of the s 105(1) factors, I am required to make an order for return unless Ms [Himona] can satisfy the Court that on the balance of probabilities her defence of acquiescence is made out. Central to determination of this issue is a meeting that occurred on 17 March 2020, just after [Erina]’s first birthday. In support of her notice of defence Ms [Himona] said that in relation to that meeting:

[Mr [Bernacki]] and I had discussions with our mother about whether we could return to Australia has [sic] a family in what might be in [Erina]’s best interests. Despite these discussions, at no time did [Mr [Bernacki]] say that I had to return with [Erina]. I believed we were still discussing where we would live on a permanent basis.

[36] While she accepts that Mr [Bernacki] did not consent, it is Ms Harley’s submission that he clearly acquiesced in the wrongful retention of [Erina] in

New Zealand. In W v W (Child Abduction: Acquiescence), the Court held that the test of acquiescence is as follows:18

Acquiescence means acceptance. It may be active arising from express words or conduct, or passive arising by inference from silence or inactivity. It must be real in the sense that the parent must be informed of his or her general right of objection, what precise knowledge of legal rights and remedies and specifically the remedy under the Hague Convention is not necessary. It is in every case a question of degree to be answered by considering whether the parent has conducted himself in a way that would be inconsistent with him later seeking a summary order for the child’s return.

[37] The burden of proving that Mr [Bernacki] has acquiesced is on Ms [Himona] on the balance of probabilities.19 Significantly on the facts of this case, in TCG v RJP, the assertions by a father that he would visit a child in New Zealand when he could afford to were held not to amount to clear evidence of acquiescence where at the same time the father was making enquiries as to his rights under the Hague Convention.20 Further, a number of cases make it quite clear that the evidence needs to be clear and compelling in relation to acquiescence.21

[38] The following principles were developed by the House of Lords regarding acquiescence in H (Minors) (Abduction: Acquiescence),22 and have been accepted by the New Zealand Courts:23

• (a) The question of whether the wronged parent has acquiesced in the removal of the child depends on that parent’s actual state of mind.
  
• (b) The subjective intention of the wronged parent is a question of fact for the trial Judge in the light of all the circumstances of the case, the burden of proof being on the abducting parent.
  
• (c) The trial Judge in reaching a decision on that question of fact will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his/her mere assertions in evidence of his/her intention.
  
• (d) There is only one exception. Where the word or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to
  

18 W v W (Child Abduction: Acquiescence) [1995] 2 FLR 211, at 217.

19 JHL v Secretary for Justice [2008] NZFLR 54 (HC) at [24].

20 TCG v RJP FC Porirua FAM-2010-091-977, 25 February 2011.

21 See for example Secretary for Justice v Penney (1995) 13 FRNZ 264; [1995] NZFLR 827 (DC);

Runge v Levine [2017] NZFC 1017.

22 H (Minors) (Abduction: Acquiescence) [1997] UKHL 12; [1998] AC 72.

23 See for example JHL v Secretary for Justice, above n 19, at [13], [24] and [27].

assert his/her right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.

[39] A parent cannot be said to have acquiesced unless that parent is aware the other parent’s actions of removal or retention are unlawful and knows, at least in general terms, their legal rights.24

[40] I reached a clear view that Ms [Himona] had not satisfied me on the balance of probabilities that Mr [Bernacki] had acquiesced. As set out above, at [49] of her notice of response in relation to the 17 March meeting she stated, “I believe we were still discussing where we would live on a permanent basis.” That indicates to me that no decision had been made and thus there could have been no final decision in relation to which Mr [Bernacki] could have acquiesced.

[41] More recently, Ms [Himona]’s mother, Ms [Brenda Himona], swore an affidavit on 18 May 2020 in which she states that she had only recently recalled her discussions with Mr [Bernacki] at the 17 March 2020 meeting. Contrary to what her daughter says in her notice of response, Mrs [Himona] asserts that Mr [Bernacki] in fact “consented to [Erina] remaining in New Zealand” at that meeting. Also present at that meeting was Mr [Bernacki]’s mother, Mrs [Pauline Bernacki]. Mrs [Himona] states that Mrs [Bernacki] stated she would come to New Zealand with her son two or three times to teach him how to fill in the declaration papers and that she (Mrs [Himona]) offered to bring [Erina] to Australia when she went to visit her other daughters. She then states:

I then said to [Mr [Bernacki]] and [Mrs [Bernacki]] would that work for you guys as it would work for us?

[42] Then deposing that Mr [Bernacki] answered, “Yes” and Mrs [Bernacki] answered, “Yes that would be good for us too.”25 She concludes the affidavit by stating:

I believed we all, and more importantly, [Mr [Bernacki]] had consented to [Erina] staying in New Zealand with regular contact between him coming to

24. Re A (Minors) (Abduction: Acquiescence) [1992] 2 WLR 536, referred to in JHL v Secretary for Justice, above n 19.

25 [Brenda Himona]’s affidavit dated 18 May 2020, at [12]-[16].

New Zealand and myself...taking [Erina] to Australia at least two or three times a year.26

[43] Mrs [Bernacki] has sworn an affidavit in reply dated 20 May 2020. She states that Mrs [Himona]’s recollection was inaccurate. Her evidence is that Mrs [Himona] in fact was encouraging her daughter to return to Australia with [Erina].27 She was emphatic in her affidavit that:

There was no discussion during this conversation about [Ms [Himona]] and [Erina] remaining in New Zealand permanently.28

[44] Mrs [Bernacki]’s affidavit states that the conversation was around whether Mr [Bernacki] and Ms [Himona] would resume their relationship or not, and what supports would be available in Australia upon their return. Mr [Bernacki] also filed an affidavit in response, dated 20 May 2020, in which he states:

We did not reach any clear agreement about what the future held and I certainly didn’t agree to [Erina] remaining [in New Zealand] permanently.

[45] He goes on to say:

I was very clear that I wanted [Erina] and her mother to come back to Australia.29

[46] That evidence of Mr [Bernacki] and his mother needs to be considered in light of the other surrounding objective evidence. By this time Mr [Bernacki] had sought advice about how he could seek the return of [Erina] to New Zealand, and indeed he had met with the New Zealand Central Authority, and signed some five days prior his application for return. I accept and prefer the evidence of Mr and Mrs [Bernacki]. I reject the evidence of Mrs [Himona]. The evidence of Mrs [Himona] is inconsistent with the initial evidence of her daughter, where Ms [Himona] stated quite clearly that in the March meeting there was no discussion around a permanent move to New Zealand.

26 [Brenda Himona]’s affidavit dated 18 May 2020, at [18].

27 Mrs [Bernacki]’s affidavit dated 20 May 2020, at [16].

28 Mrs [Bernacki]’s affidavit dated 20 May 2020, at [15].

29 Mr [Bernacki]’s affidavit dated 20 May 2020, at [10]-[11].

[47] But even without a determination of that issue, the overwhelming evidence I had before me is that Mr [Bernacki] has consistently expressed his desire that [Erina] return with her mother to Australia, right from the outset when Ms [Himona] told him the day before their scheduled return to Australia that she wanted to remain for a further two weeks. While he did agree to a two-week period so that [Erina] could meet her maternal grandfather in prison, there is simply no evidence before me to indicate that he even remotely either consented or acquiesced to his daughter remaining to live permanently in New Zealand.

[48] Thus, the defence of Ms [Himona] was not been established on the balance of probabilities. It was for those reasons that I made the order for prompt return under s 102 on [date deleted] May. The proceedings were adjourned for a discussion between counsel as to how that return was to be facilitated, and the filing of a memorandum setting out the orders and directions necessary to facilitate return.

S J Coyle

Family Court Judge