BK v CJ [2015] NZHC 2169 (9 September 2015)

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

UNDER THE	Care of Children Act 2004 and the ratification thereby of the Hague Convention on the Civil Aspects of International Child Abduction 1980
IN THE MATTER OF	an appeal against the decision of the Family Court at Whangarei
BETWEEN	BK Appellant
AND	CJ & KJ Respondents

Hearing:	3 September 2015 (at Auckland)
Counsel:	R Harte for Appellant S Woods for Respondents
_Judgment:	_{9 September 2015}

[1] The appellant BK resides in Australia with her husband. They have two young children, A and C, who are presently living in New Zealand with their maternal grandfather and his wife. The appellant sought an order from the Family Court, pursuant to s 105 of the Care of Children Act 2004 (“the Act”), for the return of those children to her care in Australia. The order was refused; hence this appeal.

[1] The Act brings into effect in New Zealand the provisions of the Convention of the Civil Aspects of International Child Abduction 1980. Section 105 provides for the court to make an order to return a child to a contracting state when the child has been wrongfully removed from a country in which he or she was habitually resident in breach of another person’s rights of custody. Section 106 provides, amongst other things, that the consent to the removal of children by the person seeking an order under s 105 is a ground for refusing to make the order.

[2] Since the hearing at first instance the issues in dispute have narrowed,¹thus the appeal turns on the questions of:

(b) Whether at the time of that removal the children were habitually resident in Australia; and

[3] The appellant is 24 years old. She has lived in Australia since she moved there with her mother in 1997. Her husband, GK, is 31 years old. He was not a party to the proceedings in the Family Court, though he did provide affidavit evidence in support of the appellant’s case. The couple’s first child, A, was born on

¹In the Family Court the respondents relied on the ground in s 106 of there being a grave risk to the children as justification for refusing to order the return of the children. This ground is no longer pursued.

[4] In October 2014 the respondents went from New Zealand to Australia out of concern for the welfare of A and C. This visit led to the respondents taking A and C back to New Zealand with them on 24 October 2014. The details as to how this came about are set out in the Family Court’s decision. Prior to this the appellant and the children had spent two months in New Zealand with the respondents from January 2014. GK had travelled to New Zealand as well but stayed for a week. The purpose of the appellant’s stay then was that there were difficulties with her relationship with GK and she was having difficulties coping with C to whom she had recently given birth.

[5] In November 2014 the respondents sought and obtained orders granting them leave to apply for additional guardianship and parenting orders of the children. Those orders do not operate to oust the jurisdiction under s 106 of the Act.

[6] On 16 June 2015, Judge Murray Hunt refused the appellant’s application for an order under s 106. The hearing proceeded on the basis of the affidavit evidence and submissions. There was no cross-examination of the witnesses.

[7] The Judge assessed the written evidence in accordance with the methodology approved in Basingtoke v Groot,²in particular he measured the affidavit evidence against evidence of the extraneous circumstances and the contemporaneous words and actions of the children’s parents.

[8] The Judge noted that counsel were agreed that once the jurisdictional basis set out in s 105(1)(a) to (d) inclusive was established it was then a question of whether the respondents satisfied him on the balance of probabilities that any one of the grounds for refusal of an order was made out.

[9] The Judge noted the respondents’ concession that most of s 105(1)(a) to (d)

was not in issue. The concessions were that: (a) the children were in New Zealand; (b) they had been removed from another contracting state; (c) at the time they were

removed the appellant was exercising rights of custody; and (d) as at 24 October

2014 the children were habitually resident in Australia. However, the parties disputed whether, after that date, the children remained habitually resident in Australia. The Judge also noted that most of the argument concerned whether the appellant had consented to the children’s removal.

[10] Judge Hunt then set out the background to the application. He stated that the appellant and her husband were young parents who were having difficulties in coping with the demands of two young children, and difficulties in their relationship. GK had issues with alcohol, and there was evidence of an accumulation of financial pressures when he was injured and lost his employment. In response to information from other family members, the respondents travelled to Australia on 19 October

[11] Judge Hunt noted that the respondents’ visit was a surprise to the appellant. The respondents offered to assist and “took immediate responsibility for the care of the children.” They inquired with the Bambini Childcare Centre (“Bambini”) where the children attended and ascertained that there was a likelihood that Bambini was going to report its concerns about the children to the Queensland Department of Communities Child Safety and Disability Services (“DOCS”), which was likely to lead to DOCS investigating the appellant and GK.

[12] The description that the respondents gave of what they found at the appellant’s residence was not disputed. Judge Hunt recorded that the respondents had described the house as a “tip” and that there was a strong smell of faeces, a sense of disarray, and the property was in a state of disrepair. There was a parrot flying loose in a room which was leaving bird droppings everywhere and creating a mess within the house. There was also a freezer of rotting meat, which the respondents helped to remove. The appellant was said to have lost a lot of weight and GK

³The evidence shows that the appellant’s mother, in Australia, contacted the appellant’s father in

[13] The Judge stated that the appellant’s response to the respondents’ intervention was initially one of gratitude. The respondents’ offers to help were accepted and the children went to stay with them in a hotel.

[14] The Judge referred to the respondents’ unchallenged evidence recording that the respondents were very concerned about evidence of neglect of the children which included (a) chronic diarrhoea for both children, (b) developmental delay for C, (c) A being constantly hungry and having recurring nappy rash, (d) likely disengagement from childcare and (e) non-payment of childcare fees. Those concerns were confirmed by Bambini. The respondents also learned that Bambini was going to report to DOCS and that official intervention was imminent.

[15] Judge Hunt found that the children’s parents agreed that the children would travel to New Zealand and stay with the respondents, with the children and respondents travelling on 24 October 2014 and the appellant joining them on 29

October 2014. Judge Hunt considered that the confirmation from Bambini that it was going to report on the children to DOCS placed some pressure on the appellant and GK. The Judge found that they accepted the alternative course of accepting help from the respondents. The Judge also found that:

[the appellant] did report making some enquiries herself from a lawyer friend about whether or not removal of the children was likely, but nevertheless chose to adopt the option offered by the respondents.

So the judge treated the decision to move the children to New Zealand as being an informed decision.

October 2014. Instead she texted her father from the airport that she would not be travelling. The text stated:

Dad, we’ve been sitting outside the airport for the last 3 hours. He is not making me stay. I want to bring my family back to Australia, that is 100% my choice, whether right or wrong. Please support me in this: (I appreciate everything you and K have done so much but I don’t want to split my family up and going to New Zealand will do that.

[17] However, the children were not returned to Australia. The respondents remained concerned about the situation in Australia and they wanted the appellant to travel to New Zealand. The Judge referred to there being a number of difficult and increasingly tense exchanges between the parties. The appellant travelled to New Zealand between 16 and 24 November 2014 and again in March 2015 to discuss what should be done about the children but no resolution was achieved. The Judge found that the respondents were still concerned about the children’s wellbeing and safety.

[18] The respondents opposed the return of the children on the ground the appellant had consented to the relocation. The appellant maintained that no such consent was given.

[19] The Judge then dealt with the dispute regarding consent. First, he identified the respective positions of the parties. He referred to the respondent’s position that consent was for an indefinite or open ended relocation of the children to New Zealand of the children, which was given prior to departure on 24 October 2014 with the re-uniting of the appellant and the children to occur on or about 29 October 2014 in New Zealand. The Judge noted that the proposition for the respondents was that the arrangement was to be for the “foreseeable future with the intent of modifying the habitual residence of the children and the applicant to New Zealand.” In the Judge’s view the children would continue to get support of the respondents in ways that ensured they were safe and which would avoid the “complaint action” that was pending in Australia. The Judge accepted it may not have been the intention for the respondents to have exclusive responsibility for the day to day care of the children, but he found that neither was that ruled out. His reading of the circumstances was that the respondents would provide on hand support to the appellant to avoid continuing difficulties of the kind that had occurred in Australia. In the Judge’s view the exact arrangements were to be left to evolve over time, but to be based in New Zealand.

[20] The Judge then referred to the appellant’s position which was that consent was only ever given to travel to New Zealand and that no consent was at any point given to relocation or to a change to the habitual residence of the children. The

Judge referred to the appellant’s argument that the effective date of removal was 29

October 2014. In this regard the appellant had argued that it was at that time that it became wrongful by virtue of the respondent’s refusal to return the children and on this view as at 29 October the respondents were acting contrary to the custodial rights of the appellant who was insisting on the return of the children to Australia.

Removal, in relation to a child means the wrongful removal or retention of the child within the meaning of Article 3 of the Convention.

[21] The Judge referred to the decision in Secretary for Justice v SB where removal was identified as an event:⁵

It is well established that the date of removal of retention is not a continuing state of affairs, but rather an event occurring on a specific occasion.

The Judge referred to the appellant’s argument that the wrongful removal can only occur when there is a breach of the applicant’s rights of custody which occurred on

29 October 2014 when those rights were breached. The appellant had submitted that logically what is required is not just consent to travel, but consent to the retention in New Zealand of the children in the care of the respondents.

[22] The Judge described the respondents’ argument as more straightforward in terms of the meaning of the words “consent” and “removal”. The respondents had submitted that removal means the removal from Australia and at that point there was agreement to modify the children’s habitual place of residence to New Zealand. It was submitted that this was demonstrated by the fact that it was intended to be an open ended arrangement for as far ahead as the parties could predict and on the respondents’ evidence dependent upon a number of remedial/rehabilitative steps being taken to their satisfaction. The respondents submitted it was not a necessary intention that they would assume exclusive responsibility for day-to-day care, but simply that the children would reside in New Zealand and be supported along with their mother and father by the respondents with the terms and specific arrangements

_{to be resolved. On this approach consent was to removal and was an
exercise of}

rights of custody because it determined that the children’s place of residence would

[23] Having set out the legal arguments regarding removal and retention, the Judge then turned to resolve the factual dispute as to the scope of the consent. He referred to the appellant’s argument that her intentions were only for the children to be in New Zealand for a few weeks, or as long as it took for the concerns which had been expressed to abate. The Judge then referred to evidence in terms of contemporaneous statements made by the appellant in her Facebook postings.

[24] The Judge set out a number of Facebook posts the appellant made the day before the children’s departure. One exchange contains the phrase “the important news of the day is that on Tuesday I’ll be going to NZ for an undetermined amount of time” and ended “GK is going to miss the kids so much”. He also quoted a remark that “I don’t know how long this will be for, but I am hoping just a short holiday till it all passes, although I would have to assume this isn’t going away anytime soon.” The Judge noted the appellant’s assertions that the parties had conversations to the effect that it might only be for a few days but was satisfied, having particular regard to the Facebook entries and circumstances the appellant faced if she did not consent to the children’s removal, that what she did consent to was an indefinite, open ended arrangement. Additionally, the text set out previously by the Judge was consistent with a long term arrangement to split up the family. A short term arrangement would be unlikely to make the appellant concerned as to her relationship with her husband being at risk.

[25] The Judge then determined that the point of time at which the intention was assessed was 24 October, where there was a commitment for both the appellant and her children to travel to New Zealand. This was the removal which he found was not wrongful as it was consented to. He also found that the removal was intended to modify the habitual residence of the children. In terms of what occurred later the Judge’s view was that the appellant changed her mind about consent that she had already given.

[26] The Judge also noted that all the application concerned was whether the children were lawfully relocated to New Zealand and now habitually reside here. It was not a determination of their day-to-day care.

[27] The Judge also stated that he was mindful that the onus under s 106 was on the respondents to prove that there was consent which must be positive and unequivocal. The Judge considered this threshold was met and that the grounds for refusing to make an order were made out.

[28] The Judge went on to consider whether there was a grave risk that the children’s return would expose them to physical or psychological harm or would place them in an intolerable situation in terms of s 106(1)(c). He considered that when the children were uplifted there was serious concern about their welfare, however, Bambini was taking steps to intervene. Accordingly, the Judge considered that this threshold was not met. However, he did consider those circumstances were material to the question of whether to exercise the discretion under s 106 to refuse to order their return.

[29] In this regard the Judge noted that the balancing in terms of Convention principles did not conflict with the welfare and best interests of the children: the children have become settled in New Zealand due to the appellant’s delay in making a claim, and there existed concerns over their welfare if they were returned to Australia.

[30] Accordingly, the Judge dismissed the application for the return of the children.

[31] The appellant appeals against this decision primarily on the Judge’s finding that the date of relocation was 24 October and that the appellant had consented to the children’s relocation.

[32] The appellant notes that the date of removal must be determined before the s

105 factors are assessed. In relation to this point, the appellant states that the children’s travel to New Zealand on 24 October was not in breach of rights of custody. The appellant states that the essential characteristics of removal are:

(c) The rights of custody are as attributed to the appellant under the law of the state in which the children habitually reside immediately before the removal; and

[33] In the appellant’s submission, this case involves wrongful retention rather than a wrongful taking of the children out of Australia as the respondents failed to return the children to the appellant’s care as planned once requested to do so. This refusal, the appellant argues is what constitutes the event or specific occasion which crystallises the wrongful removal. Accordingly, she submits that until 29 October, the children’s travel was agreed to, as the appellant had agreed to the respondent’s having temporary care of the children.

[34] The appellant also submits that the Judge failed to assess the relevant factors in s 105 of the Act.

[35] The appellant submits that the finding of habitual residence is a jurisdictional requirement under s 105 whereas consent is a defence under s 106 to an application. Accordingly, the appellant argues that the Judge wrongly conflated the two issues.

[36] The appellant accepts the Judge’s finding that the children were habitually resident in Australia prior to 24 October 2014 and also submits that they have continued to be habitually resident in Australia since that time.

[37] The appellant submits that the inquiry into the children’s habitual residence is a broad factual one, taking into account factors such as settled purpose, the actual and intended length of the stay and the child’s ties to the State.⁶The appellant accepted that when approaching evidential conflict in affidavit evidence, courts will be more inclined to attach more weight to the contemporaneous words and actions of parents, and independent evidence, than their bare assertions in evidence as to the position.⁷

October 2014. It would be unusual for the children’s habitual residence to change when their parent’s habitual residence had not;

(c) The children’s father’s parental intention is also relevant. His evidence confirms that his view was that he would agree to a short term break only. In this regard the respondents have not pointed to any direct evidence of his agreement and to the contrary confirmed that he was fighting the children leaving;

(d) The parents did not break any links to Australia: they successfully fought against the mortgagee sale of their home, worked with local health services and wanted to keep a paediatrician’s appointment for C on 9 December 2014; and

[39] The thrust of the appellant’s argument is that the arrangement agreed upon was for a temporary period of grandparental care, not a change in custody

(a) “just come over for a few weeks, have a bit of a holiday, let us look after you and then you can go home”;

(b) “We didn’t ever specify a specific time frame that we would stay in New Zealand for. It was only ever discussed, however, in the context of a “break” or a “holiday” and never anything more permanent than that.”

[40] The appellant contends that the purpose of the travel was to avoid an immediate care issue due to the threat of DOCS’ intervention and submits that this points to a short term intervention to resolve a pressing issue. The respondents were acting as a safety net. The appellant also argues that the fact that she had stayed with the parents for two months at the start of 2014 during relationship difficulties showed that a temporary stay to deal with care issues had previously occurred. Finally, the appellant submits that while she did not know how long her stay would be in New Zealand she hoped that it would be short. Additionally, the children were only in New Zealand for five days before their parents exercised their rights of custody.

[41] The appellant then addresses the defence of consent that the Judge found to be made out. The appellant challenges the Judge’s finding that he was satisfied that the appellant had consented to an open ended arrangement when the children went overseas.

[42] The appellant refers to the onus, which is on the respondents to prove consent. After discussing the policy and purpose of the Hague Convention and its interaction with the Act, the appellant argues that consent must be clear and cogent and evidence of consent must be real, positive and unequivocal. It must be actual not constructive. The appellant argues further that the bar is heightened in this case by the fact that the retaining party is not a parent and has no custody rights. In this regard the appellant contrasts the case with those cases where one parent has exercised their right of custody to the detriment of the other’s right.

[43] The appellant then turns to the circumstances of the current case submitting that there is no evidence of the appellant consenting to forgo her right to determine the children’s residence or agreeing to the children staying in New Zealand beyond a short period of time. The appellant relies on similar evidence to that cited in relation to the habitual residence inquiry to show that she only ever consented to a short holiday. Accordingly, the appellant submits that the respondent’s evidence of consent is equivocal at best and is not sufficient for them to establish a defence of consent in light of the contemporaneous evidence against consent.

[44] Finally, the appellant submits that even if the defence of consent was made out, the Court has a residual discretion to refuse to make an order. This requires balancing the children’s welfare and best interests with the general purposes of the convention. The appellant states that retaining the children in New Zealand and keeping them from their parents is the antithesis of the purposes of the convention: it is the parents who should be responsible for their children’s upbringing, not their grandparents. While the appellant accepts that the respondents acted in what they considered to be the children’s best interests the children have become estranged from their parents. Australian authorities are capable of dealing with any remaining welfare issues and it is appropriate that, if the respondents are not satisfied with the care arrangements in Australia, they should take action in an Australian court.

(c) that he should exercise his discretion not to make an order. The respondents argue that, if this Court accepts that the removal occurred on 29 October 2014, by that time Australia was no longer the children’s habitual residence and so s 105 is not engaged.

[46] The respondents’ position is that there was a clear shared intention that the children would reside in New Zealand on an indefinite basis. The agreement was to change the children’s residence on the basis of real and compelling concerns for their welfare. The parents later changed their minds, after 24 October when the children’s removal had already occurred. The respondents accept that the removal on 24

[47] In relation to consent, the respondents submit that the appellant consented to the children being taken to New Zealand at the time of removal. The respondents agree that consent must be real, positive and equivocal and that, when assessing the evidence, the court will attach more weight to contemporaneous words and actions.

(a) The respondents had invited the appellant and her husband for a short holiday before they travelled to Australia. However, once they arrived in Australia they saw the extent of the concerns about the children and the position changed. They became aware that Bambini would be making a notification to DOCS about the children;

(b) There was a discussion about GK remaining in Australia to sort out finances and other practicalities before coming to New Zealand. There was also discussion about him obtaining employment in New Zealand;

(c) The appellant and respondents went to the Flight Centre to book one way tickets for the children to travel to New Zealand;

[49] The respondents submit that later withdrawal of consent is only relevant to whether the discretion to make an order should be exercised. In this case, the appellant withdrew her consent after she had given it.⁸

[50] The respondents also argue that GK consented to the removal.⁹The respondents point to a Facebook post where the appellant stated “we felt that we didn’t have any other option, and so we allowed my father to take them”.

[51] In relation to the Judge’s discretion to make an order returning the children to Australia, the respondents submit that Judge Hunt correctly weighed up the relevant principles. The respondents contend that this inquiry requires a balance between the best interests of the child and the deterrent policy of the Hague Convention.

[52] The respondents refer to the grave care concerns for the children in Australia identified by the Judge as well as further concerns that the appellant suffered from depression, GK from past alcohol issues, the appellant had admitted to being a “bit of a weed addict”, that she was physically and psychologically abused by GK, and that both had failed to keep in regular contact with the children. GK had a history of post-traumatic stress disorder and had attempted suicide in November 2014.

[53] Accordingly, the respondents submit that there are significant safety risks for the children in Australia. This is balanced against the fact that the children are thriving in New Zealand, and have been living in New Zealand for almost a year. The respondent submits that the Judge was right to decline to exercise his discretion to order their return to Australia.

[54] Additionally, the respondents argue that if the Court accepts that removal occurred on 29 October 2014, by that time, Australia was no longer their habitual residence. This argument is based on a settled purpose or intention for the children to leave Australia, resulting in them immediately losing their habitual residence in

_{Australia. The respondents submit that assessment of habitual residence
involves a}

⁹As GK is not a party to the proceedings whether he consented to the children’s removal or not

broad weighing up of the facts of the case and here there was overwhelming evidence in favour of immediate loss of habitual residence on 24 October.

[55] Finally, the respondents dispute several particular points made by the appellant including the basis on which the appellant states that they successfully fought against the mortgagee sale of the family home and have worked with health services in respect of their mental health issues. The respondent also disputes the appellant’s claim that the respondents assuming custody rights was a surprise.

[56] The parties were agreed that the correct approach in an appeal such as this is that adopted in AHC v CAC:¹⁰

[20] A judgment on an application for an order for the return of a child involves finding of fact evaluation of factual matters, as well as the exercise of a discretion under s 106(1) of the Act as to whether to refuse to make an order for the return of the children.

[21] As noted by Heath J in B v F, to the extent that the judgment appealed from involved findings of fact, and the evaluation of factual matters, the principles expressed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar apply, and this court is free to reconsider the judgment of the Family Court and to substitute its own views on questions of fact and evaluation, if satisfied that the Family Court decision was wrong. To the extent that the Family Court Judge exercised a discretion, then this court should only interfere if satisfied that the Judge acted on a wrong principle, took into account irrelevant matters, failed to take relevant matters into account, or was plainly wrong.

[57] Thus the parties accepted that to the extent that the appeal deals with the Judge’s determination on the s 105 issues, it is a general appeal. However, the appeal against the Judge’s refusal to exercise his discretion to make an order for the removal of the children under s 106(1), is an appeal against a discretion. In Coates v Bowden, Winkelmann J discussed the approach on appeal against a refusal to

[30] This appeal is an appeal against the exercise of a statutory discretion, and so falls to be determined in light of the principles articulated in May v

May (1982) 1 NZFLR 165 (CA) at p 170, that to succeed with such an appeal the appellant must show:

The Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took into account some irrelevant matter or that he was plainly wrong.

[31] The appeal also falls to be determined in accordance with the policy underlying the Hague Convention. As was said by the Court of Appeal in P v Secretary for Justice [2007] 1 NZLR 40; (2006) 25 FRNZ 327 (CA) at para 204 and reiterated in Smith v Adam [2006] NZCA 494; [2007] NZFLR 447 (CA) at para 16, given the summary nature of Hague Convention cases and the specialist nature of the Family Court, decisions should not be disturbed too readily on appeal in the absence of an error of principle.

[58] However, there is also the question of how to address Judge Hunt’s factual findings on whether or not there was consent to the children being re-located to New Zealand. Although this forms part of the decision under s 106, it is a factual question on which the Judge was either right or wrong. Therefore, this aspect of the s 106 decision should in my view also be determined as a general appeal in accordance with the principles in Austin Nichols.

[59] Subpart 4 of part 2 of the Act implements the Convention of the Civil Aspects of International Child Abduction 1980 in New Zealand.

[60] Section 105 reflects the Convention’s objective to achieve the prompt return

of a child following a wrongful removal, unless one of the grounds in s 106 applies:

(1) An application for an order for the return of a child may be made to a Court having jurisdiction under this subpart by, or on behalf of, a person who claims—

(b) that the child was removed from another Contracting State in breach of that person's rights of custody in respect of the child; and

(c) that at the time of that removal those rights of custody were actually being exercised by that person, or would have been so exercised but for the removal; and

(2) Subject to section 106, a Court must make an order that the child in respect of whom the application is made be returned promptly to the person or country specified in the order if—

(3) A Court hearing an application made under subsection (1) in relation to the removal of a child from a Contracting State to New Zealand may request the applicant to obtain an order from a court of that State, or a decision of a competent authority of that State, declaring that the removal was wrongful within the meaning of Article 3 of the Convention as it applies in that State, and may adjourn the proceedings for that purpose.

(b) is satisfied that the child has been taken out of New Zealand to another country.

(1) If an application under section 105(1) is made to a Court in relation to the removal of a child from a Contracting State to New Zealand, the Court may refuse to make an order under section 105(2) for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the Court—

(a) that the application was made more than 1 year after the removal of the child, and the child is now settled in his or her new environment; or

(i) was not actually exercising custody rights in respect of the child at the time of the removal, unless that person establishes to the satisfaction of the Court that those custody rights would have been exercised if the child had not been removed; or

(d) that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate, in addition to taking them into account in accordance with section 6(2)(b), also to give weight to the child's views; or

(e) that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.

[61] The burden of proof to establish that the criteria in s 105 are met rests on the applicant, in this case the appellant.

[62] There is no issue with the requirement that the children are in New Zealand.

[63] The first issue is whether the children were removed from another contracting

state to New Zealand in breach of the appellant’s custody rights in terms of s

[64] The date of removal or retention is an event occurring on a specific occasion rather than a continuing state of affairs.¹²

[65] The term “removal” is defined in s 95 as “the wrongful removal or retention of the child within the meaning of Article 3 of the Convention.”

The removal or the retention of a child is to be considered wrongful where - a) it is in breach of rights of custody attributed to a person, an

institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

[67] Article 5 of the Convention provides that “rights of custody” include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence. This Article has been incorporated into s 97 of the Act which defines rights of custody as being:

For the purposes of this subpart, rights of custody, in relation to a child, include the following rights attributed to a person, institution, or other body, either jointly or alone, under the law of the Contracting State in which the child was habitually resident immediately before the child's removal or retention:

(a) rights relating to the care of the person of the child (for example, the role of providing day-to-day care for the child); and

[68] In AHC v CAC Andrews J considered whether a child could be said to have been unlawfully retained in terms of s 105(1)(b) where the applicant was alleged to have consented to the retention. She found that the Family Court Judge erred when he had regard to evidence of the applicant’s consent to the children remaining in

[28] I accept Ms Soljan’s submission that the issues of unlawful retention and consent cannot be conflated. It must first be determined whether the applicant has established that there is an unlawful retention. In addressing that onus, the applicant is not required to anticipate, and negate, potential defences such as consent. After that, if satisfied that the respondent has established that there was consent, the Judge may exercise the residual discretion in s 106 of the Act and order that the child need not be returned.(emphasis added)

[69] In AHC v CAC Andrews J adopted the reasoning of the UK Court of Appeal which stated:¹⁴

¹⁴Re P (A Child) [2004] EWCA Civ 971 at [33] as cited in AHC v CAC, above n 13, at [33].

If the giving of consent prior to the removal had the effect that the removal could never be classified as wrongful or in breach of the right of custody, then there would be no need for Article 13 at all. Whereas acquiescence is expressly recognised to be acquiescence subsequent to the removal, consent is not so limited in Article 13 and must, therefore, include permission which is given before the removal. If clear unequivocal and informed consent is given to the removal of a child, then it is difficult to see why the court should not exercise the discretion conferred by Article 13 to permit the child to remain in the country to which it was agreed he or she should go. ... (emphasis added)

[35] It is difficult to perceive within the scope of Article 3 any concept of prima facie breach of rights of custody. Rather, it seems to me that Article 3 contemplates that a removal or retention will be in breach of rights of custody if, for example, it be established simply that the removal, or retention, is contrary to or interferes with rights of custody, as defined in Article 5. Thus, if it be established that any removal, or retention, was contrary to or interfered with existing rights of custody (as defined in Article

[36] Once it is established however that there is a wrongful removal, or retention, in this sense, the person who committed the wrongful act has the opportunity to invoke Article 13 (notwithstanding Article 12) not to have to return the child.

[37] On this analysis ... once it is established that a removal, or retention, was contrary to or interferes with rights of custody, that will be sufficient to find that the removal, or retention, was in breach of those rights. There is I think no other interpretation of what may have been meant, which is consistent with Article 3, nor the Convention read as a whole; and consistent also with that Court's determination that consent does not fall to be considered for the purpose of establishing wrongfulness ... as otherwise there would be no need for Article 13 at all ...

[38] In this regard, in my view it is inappropriate to characterise the discharge of the onus under Article 13 (reg 16(3)) as in any sense a ‘justification’ of the act which is ‘considered wrongful’ in that the discharge of the onus would then have the effect that the act ceases to be wrongful. It does not. It remains wrongful. It is just that, if the onus is discharged, and if the child is not returned, that is the result of the exercise of a discretion, not a right flowing from a jurisdiction.

[39] This analysis is consistent with the approach that the matters in Article 3 are regarded as ‘formalities’ (although an onus attaches to them) as constituting the fundamental prerequisites for a competent application by a Central Authority. By way of analogy, reg 16(1A)(e) also reflects (in part) par (a) of Article 13. For the purpose of presenting a competent application

it would simply need to be averred and sworn that at the time of a child's removal, or retention, there was actual exercise of the rights of custody or that they would have been exercised if the child had not been removed or retained, without more, unless the respondent raised the issue under reg

16(3)(a)(i), and assumed thus the onus of proof on the matter. It would then be a matter for the [applicant], if it wished, to adduce evidence in response in respect of that issue.

[71] Section 105(1)(d) provides that the child must have been habitually resident in the contracting state immediately before the removal.

[72] The term “habitual residence” was discussed in P v Secretary for Justice. The Court of Appeal noted that there was no substantive definition of the term in the Act or the Hague Convention and that it was accepted:¹⁶

for example, that the temporary absence of the child from the place of his or her habitual residence for reasons such as vacation, school attendance or the exercise of access rights did not usually modify the child’s habitual residence.

The Court also found that habitual residence was primarily a question of fact to be decided by reference to the circumstances of each case.¹⁷

[73] In P v Secretary for Justice the Court of Appeal also discussed the effect on habitual residence where the parents have agreed that the child would go with one parent to another state and that parent had kept the child in that state. The Court noted that while the decision in each case resulted from the examination of the particular factual circumstances, there were some themes discernible. Where the agreed stay in the new place was under a year, and the purpose was temporary such as for holidays, visiting relatives, education or sabbaticals and the ties to existing residence were strong, the Court stated that courts had usually found that there had been no change to habitual residence.

[74] The Court refused to overrule its previous approach set out in SK v KP which set out the following principles:¹⁸

[73] One of the important concepts in habitual residence is that of settled purpose. It is widely accepted that the acquisition of a new habitual residence requires both a settled purpose and actual residence for an appreciable period. It is also widely accepted that a settled purpose to leave the place of habitual residence causes that habitual residence to be lost immediately. As the gaining of a new habitual residence requires a period of actual residence this means that a person can be without an habitual residence. ...

[74] Where a young child is involved, the settled purpose is traditionally considered to be that of the parents ... This requirement has been criticised as both detracting from the factual nature of the concept of habitual residence and as taking a parent-centred as against child-centred approach ...

[75] A softening of the parental purpose test has been recognised as necessary. It has been said, for example, that courts should have regard not only to the subjective intent of the parents but also to what have been called the ‘objective manifestations of the intent’ ... Concentration on parental purpose should not be allowed to obscure the broad factual nature of the inquiry ... Settled purpose, albeit important, is only one factor to be taken into account.

[76] Even among those who doubt the emphasis on settled purpose, however, there has been almost universal approval for the proposition that the unilateral purpose of one of the parents cannot change the habitual residence of the child. To hold otherwise would not accord with the policy of the Convention and would provide an encouragement to abduction and retention ... .

[75] Once the factors in s 105 are satisfied, the respondents have the onus of satisfying the Court that, here, the person consented to or acquiesced in the removal. In Chief Executive for Department of Courts v Phelps the Court of Appeal discussed these defences and found that:¹⁹

It is clear ...that consent as a ground for refusal relates to the parent’s actions before the removal while acquiescence relates to the parent’s attitude subsequent to it.

[76] The availability of consent and acquiescence as grounds for refusal was later said to depend on whether the case is one of wrongful removal or wrongful retention.

_{In Secretary for Justice v B Panckhurst J stated that if it is
the former, then consent}

¹⁹Chief Executive for Department of Courts v Phelps [1999] NZCA 198; [2000] 1 NZLR 168 (CA) at [12]. I consider that here Keith J was using the term “removal” as it is defined in the Act (and the Convention) rather than as a reference to an actual physical removal of a child.

will be relevant, if it is the later then acquiescence to the child’s remaining in the

It is common ground that the distinction between consent and acquiescence in s 105(1)(b)(ii) depends on whether the case is one of wrongful removal or wrongful retention. If the former, then it is the consent of the left behind parent (to the removal) which is relevant. If the case is one of wrongful retention in the country to which the child has been taken, then it is acquiescence in the child’s remaining in the second country which is material.

[77] The statement from Secretary for Justice v B implies that consent will never be a relevant ground for refusal in a wrongful retention case. However, that statement is inconsistent with the Court of Appeal’s finding in Chief Executive for Department for Courts v Phelps.²¹Further I note that the statement from Secretary for Justice v B is prefaced by the comment that it was common ground; thus Panckhurst J never had to determine this issue.

[78] I consider the finding of the Court of Appeal in Chief Executive for Department for Courts v Phelps to be binding on this Court. Further I can see no basis for limiting the two grounds for refusal in the way that Panckhurst J did. If that was the intent of the Convention and of s 106 of the Act I would have expected to see it given clear expression, which is not the case. Accordingly, I consider that consent can be a ground for refusal in a case of removal by wrongful retention.

[79] In assessing consent, New Zealand courts have adopted the approach taken in

It is obvious that consent must be real. It must be positive and it must be unequivocal. ... There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. ... There may also be circumstances in which it may be inferred from conduct.

²⁰Secretary for Justice v B HC Christchurch CIV-2006-409-2578, 9 March 2007 at [12].

Acquiescence means acceptance and it may be either active or passive. Active acquiescence would be signified by words or conduct which is inconsistent with an intention of the party to insist on their rights. Passive acquiescence will be silence or inactivity in circumstances in which the aggrieved party would reasonably be expected to act: see Re A (Minors) (Abduction: Custody Rights) [1992] 2 WLR 536 (CA) at 547.

[80] The Court of Appeal stated in Andrews v Secretary for Justice that the Court may be able to infer the necessary consent from conduct, however, the evidence has to be “clear and cogent”.²³

[81] Both parties agree as to the evidence required to establish consent and the approach to assessing any conflicts in evidence.

[82] Once consent has been given, it cannot be withdrawn. The issue was considered by the English Court of Appeal in Re A (Minors) (Abduction: Custody Rights).²⁴

[83] Finally, if one of the grounds for refusing to return a child in s 106 is established, then the Court has a discretion as to whether to order removal. The nature of the discretion was discussed by the Supreme Court:²⁵

The discretion requires the Judge to compare and weigh two considerations. One concerns the welfare and best interests of the child or children involved in the case. The other concerns the significance of the general purpose of the Convention in the circumstances of the case. These two considerations will not necessarily conflict.

[84] The majority noted that everything logically capable of bearing on whether it is in the best interests of the child is relevant. This will include the circumstances in which the child is now settled, the circumstances in which they came to be wrongfully removed or retained, and the degree to which the child would be harmed by return. The nature of any evidence directed to another ground or refusal, whether

[85] The s 105(1) criteria are the first consideration. There is no issue regarding s

_{105(1)(a); the children are present in New Zealand. Given the different
views of the}

²³_{Andrews v Secretary for Justice [2007] NZCA 223,
[2007] NZFLR 891 at [47].}

parties on when the wrongful removal occurred, the first question for determination is the date of the wrongful removal. Judge Hunt found that the wrongful removal occurred on 24 October 2014. The appellant contends that it occurred later on 29

[86] Removal is “wrongful” when it is contrary to, or interferes with rights of

custody, which include the right to determine the child’s place of residence.²⁷

Further when determining if there has been a wrongful removal the Court pays no regard to whether the applicant under s 105 had consented to the removal of the child.²⁸This seems to me to mean that the Court must approach the enquiry under s

105(1)(b) by putting to the side any evidence that the applicant consented to the removal of the child and instead to ask itself whether the child’s departure from the other contracting state was contrary to or has interfered with the applicant’s rights of custody. In this regard it can be said that any physical removal of a child from one contracting state to another will interfere with a parent’s rights of custody in the first contracting state as such rights cannot extend beyond the territory of that state.

[87] In the present case once evidence to show that the appellant agreed to the children going to New Zealand is put to the side, their physical removal from Australia would clearly be contrary to or an interference with the appellant’s Australian based rights of custody. When seen in this way, it becomes logically possible to view the removal of the children on 24 October 2014 as breaching the appellant’s Australian based rights of custody, despite the fact she agreed to the

children going to New Zealand.²⁹Thus, the Judge was correct to find the wrongful

[88] The appellant argued that the departure to New Zealand on 24 October 2014 could not be a breach of her custody rights because on that day she was happy for the children to go to New Zealand. However, this argument entails recognising the

_{appellant’s agreement to the children’s departure at the
point at which the s 105(1)(b)}

analysis is undertaken, which necessarily conflates the consideration of consent with the question of whether the removal was wrongful. This is the very thing that the settled case-law, in both local and foreign jurisdictions, says is wrong. Because s 105 enacts an international convention it is important that the application of the law is consistent with how it is applied by courts of other contracting states.

October 2014 interfered with the appellant’s right to determine the children’s place

[90] There was no dispute between the parties that at the time the children were removed to New Zealand the appellant was exercising rights of custody in respect of the children. Nor was there dispute that on 24 October 2014 the children were habitually resident in Australia. Thus, all the elements of s 105 were established.

[91] The next question is whether in terms of s 106(1)(b)(ii) the appellant consented to the children’s re-location to New Zealand. As both parties accept, consent must be positive, unequivocal, clear and cogent. Here the burden of proof is on the respondents.

[92] The appellant argues that she did not consent to removal for an indefinite period but only for a short break. The respondents state that she did consent to the removal for an indefinite period. Each party’s position turns firstly on several comments made on Facebook by the appellant and text messages sent between the parties as well as their own affidavit evidence. Given the limited contemporaneous evidence and the dispute between the parties as to the scope of the consent this is a case where limited cross-examination may have assisted the Court to determine whether the consent was for an indefinite period of some duration or a short term stay. Whilst the appellant was in Australia at the time of the hearing in the Family Court she could have attended the hearing for cross examination by audio visual

_{link. In Re K (Abduction: Consent) Hale J ordered the parties to
give oral evidence}

³⁰I have considered whether it would be possible to say that the removal was not “wrongful” in the sense that it did not interfere with the appellant’s custody rights as the parties had agreed that she would come to New Zealand with the children and thus still exercise her rights of custody over them. However, I consider that this approach would come very close to conflating the issue of whether or not she had consented to the removal.

noting that whilst that course was exceptional in proceedings under the Convention where consent was in issue, courts were sometimes prepared to allow oral evidence.³¹

[93] The contemporaneous evidence as to each party’s stance on this issue is not plentiful. There is evidence from a few Facebook posts and texts. There is also circumstantial evidence from which inferences as to the appellant’s stance regarding consent can be drawn.

All is good but obviously you’ve all heard what’s going on in regards to the kids, and its all real happening NOW, and so I’ve had to make the sudden decision to go (well not really my choice, I’ve actually been given an ultimatum and don’t exactly have a choice lol)

Anyway just letting you all know it’s happening this coming Tuesday. The kids are leaving on Saturday, so if anyone wants to catch up before then I’d really love to. I’d like to see you all before I leave if possible definitely don’t want to go without saying bye!!!

[95] Then in response to a query as to why she was going to New Zealand the appellant posted:³²

They would never be able to take them but even for a few days is too much! They have A LOT of evidence thanks to my psycho mother, and I spoke to

[96] Following further queries from her Facebook friends the appellant posted:³³

It fucking sucks!! I’ve basically bene in tears for the last week straight. 2 days ago my dad turns up at my door from NZ because mum has called him and told him I’m on ice lol. ANTWAY went to speak to daycare and they told me they think I’m starving the kids because they eat so much (but you guys see him at play dates!!! He always has eaten so much!!!) and also, because [A] constantly has nappy rash (and again you guys know how much he poos!!! He does 5-7 a day! No wonder he’s always got nappy rash) Then there’s [C’s] weight/development. And now mums convincing everyone I’m on drugs. Plus there’s quite a lot more. But it’s all bullshit!!! But to be honest it does all look really bad.

[97] The purpose of the exchanges between the appellant and her Facebook friends was to arrange a time for them to meet up before she went to New Zealand

It’s so hard to explain Sam but basically, mum went to daycare ages ago and told them I was on speed/ice/weed (it keeps changing LOL). She said she was worried about the kids for various reasons, such as [GK] being psychotic/abusive/on drugs me not feeding/caring for the kids etc, us living in an unsuitable environment for the kids, [C] not growing/developing because of the abuse/neglect etc etc.

This was months ago, and since then they’ve been noticing little things such as kids eating alot, and making assumptions like I am not feeding them at home. This was all done behind my back. They have been keeping a report and adding to it with stupid things but because they believe everything my mother has told them they genuinely are worried for the kids.

So I went to see them the other day to ask what has happened (I seriously thought mum was making it all up!!) And as it turns out they were actually sitting there telling me they were worried for the kids and they were legally required to file a report to DOCS. My dad and I all begged them not to and they said the only way they wouldn’t was if I left with them and got the kids into a safe environment.

I can prove that it’s all bullshit and the kids are 100% safe, happy and healthy etc and definitely not being abused!!!! However I can’t risk it! [GK] is on sick leave because of his back so it really doesn’t look good the fact that we both don’t have a stable income at the moment. Plus I’ve lost heaps of weight which might put doubt in their minds as to whether I’m okay. If we were put in the position where we were being investigated things like that won’t exactly help us and I just can’t risk it. I don’t know how long this will be for but I’m hoping just a short holiday until it all passes although I have to assume this isn’t going away any time soon.

[99] In the final post the appellant made on Facebook on 23 October 2014 she stated in a response to queries about staying back in Australia:

Oh trust me I’m fighting this. That’s why I’m not going tomorrow. They need to go asap to be safe. But I couldn’t leave. I have to call around and meet up with people, get my own documents etc etc but I’ll go over on Wednesday because I can’t be away from them for too long. [GK] is going to stay here because he’ll need to do stuff while I’m gone to sort this all out. We don’t want to go so we will do everything we can to sort it out.

[100] In their affidavit evidence the appellant and GK confirm that they met with Bambini’s on more than one occasion and they each confirm that the care coordinator at Bambini’s stated that a report was going to be made to DOCS. As GK reports his conversation with the appellant about this subject he says:

The daycare said that the last time they made a complaint to DOCS, DOCS came and collected the children and put them in a foster home for 28 days and that the parents had to prove that they should give the kids back. I also recall that she (the appellant) said to me “the coordinator said if I don’t go to New Zealand on Saturday with the children she will file a report with DOCS on Monday”.

[101] GK went on to say in his affidavit that whilst he and the appellant had no real concerns for their care of the children, at the same time they were worried about DOCS becoming involved because they knew their financial position was “quite dire” and maybe DOCS would take the children from them if they couldn’t show they were in a better financial position. In her affidavit the appellant says much the same. She deposes that she and GK were concerned the respondents would contact DOCS with their concerns if Bambini’s did not. She also deposes that her concern was that if DOCS became involved, given the circumstances there was a fear the children would be taken into care and accordingly she and GK thought that it would be good for the children to go to New Zealand.

[102] The above posts indicate to me that in the lead up to 24 October 2014 the appellant was faced with circumstances where she either remained in Australia, (and took her chances with what might eventuate if DOCS became involved, which looked to be very likely), or she and the children moved to New Zealand.

[103] One way air tickets were purchased for the children and for the appellant to travel to New Zealand.

[104] The appellant does not dispute that the situation at home in Australia was dire when the respondents arrived. She says this in her affidavit and in her Facebook posts. I consider that there is enough evidence to support the inference that as at 24

October 2014 when the children left Australia they did so with the appellant’s consent for the children to re-locate to New Zealand indefinitely. The tenor of the above evidence suggests to me that while the appellant was reluctant for her and the children to leave Australia she recognised that was the best option available to her, and that until circumstances improved in Australia she and children would be staying in New Zealand.

[105] The appellant relies on texts sent by the respondents prior to their visit to Australia in which they suggested that she have a short holiday with them to “recharge her batteries”. She also relies on the phrase, in the same conversation as the respondents rely on that “I don’t know how long this will be for, but I’m hoping just a short holiday until it passes” and further “[GK] is going to stay here because he’ll need to do stuff while I’m gone to sort all this out. We don’t want to go, so will do everything we can to sort it out.” In her submission this evidence supports her consent to the children being in New Zealand being limited to them having no more than a short term stay. However, I consider that at the time the comments she now relies upon were made, they were no more than wishful thinking on her part.

[106] The evidence makes it clear that this was not a situation of a young mother with two demanding young children who needed a holiday to re-charge her batteries. This was a young family in dire straits who were facing a potential DOCS investigation. Whilst the appellant in submissions disputed there was a strong likelihood of DOCS becoming involved the respondents’ evidence is that the co- ordinator of Bambini’s “made it very clear that she was going to file a report and that in her opinion she thought DOCS would take the children”. This statement is consistent with what the appellant and GK have said in their evidence as well as what is said in the Facebook posts. Against that background it would have been apparent to all concerned at the time that a short holiday in New Zealand was not going to remedy the situation. Indeed, the appellant acknowledged as much in one of her Facebook posts when she said “I’d have to assume this isn’t going away any time soon”.

[107] There is also the text message the appellant sent to her father on 29 October

2014 when she told him she would not travel to New Zealand giving as one of the reasons that she did not want to “split” the family up. That could only occur if the move to New Zealand was for an indefinite amount of time rather than for a short holiday.

[108] The evidence the appellant relies upon to support her contention that she consented to the children going to New Zealand for no more than a short holiday generally either pre-dates the arrival of the respondents in Australia or post date the children leaving Australia. The pre-arrival in Australia communications from the respondents suggesting a holiday in New Zealand are understandable, as at the time they were made the respondents had no idea of how dire matters were in Australia. The evidence that post dates 24 October 2014 reveals over time the appellant’s change of stance to the children’s re-location in New Zealand. However, consent

[109] Whilst the evidence is not plentiful this is a feature of these types of cases where the proceedings are dealt with expeditiously and on the basis of whatever evidence is available. I am satisfied that what evidence there is, is sufficient to prove on the balance of probabilities that the appellant did consent to the children being re- located in New Zealand for an indefinite period of time. It follows that I find Judge was right to find that the appellant had consented to the removal of the children at the time they were removed from Australia.

[110] Regarding the exercise of the residual discretion this is to be assessed in accordance with the test in May v May.³⁵In terms of that test I can see no error in the Judge’s exercise of the discretion that would warrant this Court interfering with it. Further, I consider that were I to exercise the discretion afresh I would come to the same conclusion. There is little if any evidence to suggest that the appellant’s circumstances in Australia have improved whereas there is good evidence to show

[111] The appellant argued that the Court should adopt a higher threshold of proof of consent where the consent to remove the children from Australia was given to someone other than a parent. I see no basis for this approach. The appellant could point to no case-law in support of that approach. Section 106 makes no distinction between consent given to a parent to remove a child and consent given to someone else. I consider the relevant enquiry is whether as a question of fact consent was given, and if so the terms of that consent. Section 106 enacts art 13 of the Convention, which is an international instrument to deal with civil child abduction. The idea that members of a child’s extended family or whanau should be treated as having a lesser connection with a child than the child’s parents is an Anglo-centric view of family relations. Other cultures may place greater recognition on extended family and whanau. The Court needs to be alive to the international character of the Convention. If the Convention intended to distinguish parents from other persons when it came to the question of consent to the removal of a child, I would expect to see clear language to that effect. It is not present either in art 13 or s 106.

[112] It follows that I see no basis for finding that Judge Hunt was wrong in deciding to refuse to make an order for the return of the children. Accordingly the appeal is dismissed.

[113] For completeness I shall deal with the respondents’ alternative argument that if there was an unlawful retention of the children on 29 October 2014, which is what the appellant contends, by then the children were no longer habitually resident in Australia and so s 105(1) has no application.

[114] I have already explained the difficulty I have in accepting the appellant’s argument for an unlawful retention.³⁶By 29 October 2014 the children were in New Zealand. The appellant had asked for them to be sent back to Australia and her father refused to do so. Hence the appellant’s contention they were wrongfully retained in New Zealand. However, to view matters in this way necessitates seeing them having travelled to New Zealand with the appellant’s consent. But consent is

not considered when addressing whether s 105(1)(b) is satisfied or not. Putting that

retained in New Zealand it seems to me that the answer here is that the consent which I found was given on 24 October 2014 is still relevant.

[115] Further I consider that the consent that was given on 24 October 2014 can be understood as more than simply consenting to the children remaining in New Zealand indefinitely. I consider that given the circumstances the appellant was facing in the lead up to and on 24 October 2014, her agreement to the children being re-located to New Zealand went beyond a physical re-location to this country. I consider that in addition the appellant intended to change the habitual residence of the children. The safest way of blocking any involvement of DOCS with her children was to place them under the jurisdiction of New Zealand law. The

respondents referred to P v Secretary for Justice³⁷which confirms that the concept of

habitual residence is flexible and not subject to rigid rules. Whether a child is habitually resident in a particular contracting state is a question of fact. The respondent submitted that the acquisition of a new habitual residence typically involves proof of a settled purpose or intention to take up residence in a new place. They relied on SK v KP where the Court of Appeal said: ³⁸

One of the important concepts in habitual residence is that of settled purpose. It is widely accepted that the acquisition of a new habitual residence requires both a settled purpose and actual residence for an appreciable period. It is also widely accepted that a settled purpose to leave the place of habitual residence causes that habitual residence to be lost immediately. As the gaining of a new habitual residence requires a period of actual residence this means that a person can be without an habitual residence.

[116] Judge Hunt was satisfied that the evidence showed a settled purpose or intention for the children to leave Australia. The appellant submitted that in this regard the Judge had made the mistake of conflating the enquiry into consent with that of determining the habitual residence. However, from my reading of Judge Hunt’s decision he did not do so. I consider he was properly alive to the fact that in this case the decision of the appellant to have the children come to New Zealand was something to which she consented in terms of s 106, and quite separately could be taken to evidence on her part a settled purpose to leave Australia for indefinite period

_{of time which also had the effect of causing the children to
immediately lose}

Australia as their habitual residence. To see matters in this way is not to conflate two discrete legal enquires. It is simply to use the same factual determinations to answer each legal enquiry. Therefore if this should be viewed from the perspective of the children being unlawfully retained in New Zealand as at 29 October 2014, then I consider that evidence of the appellant’s conduct in the lead up to and on 24 October

2014 as set out above demonstrates her settled purpose for the children to leave Australia as their habitual place of residence. On this basis it would follow that the criterion in s 105(1)(d) was not established as by 29 October 2014 the children had ceased to be habitually residence in Australia. It may well be that the period of actual residence necessary for them to gain New Zealand as their habitual residence was not satisfied, but that would only mean they were without a habitual residence which by itself would exclude the operation of s 105(1)(d).

High Court of New Zealand Decisions

BK v CJ [2015] NZHC 2169 (9 September 2015)