Rcl v Apbl Hc Inv

• Jurisdiction: New Zealand
• Judge: Gendall J
• Judgment Date: 11 June 2012
• Neutral Citation: [2012] NZHC 1292
• Docket Number: CIV-2012-425-000145
• Court: High Court
• Date: 11 June 2012

BETWEEN

RCL

Appellant

and

APBL

Respondent

[2012] NZHC 1292

CIV-2012-425-000145

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

Appeal from a Family Court decision ordering the appellant to return two children to the United Kingdom pursuant to s105 Care of Children Act 2004 (“COCA”) (application to Court for return of child abducted to New Zealand) and the Hague Convention on International Child Abduction — parties both New Zealanders but lived in United Kingdom — mother returned to NZ with children on pretence of a holiday with permission of father — later returned to UK with children and while there, told father they would be returning to NZ — whether father consented or acquiesced to children remaining in NZ by failing to stop the second removal — whether the children were habitually resident in NZ as had been in NZ for some time — whether an order should be refused under s106(1)(a) COCA (application was made more than 1 year after the removal of the child, and the child is now settled in the new environment) and s106(b)(ii) (consented to, or later acquiesced in, the removal) — whether there could be a wrongful retention because when the appellant informed the respondent they would not be returning to the UK, the children were not in NZ — definition of “removal”, “retention”, “habitual residence” and “acquiesce”.

Counsel:

L A Anderson for appellant

G Collin and L Harrison for respondent

RESERVED JUDGMENT OF Gendall J

Contents

Background	[2]
Applicable legislation	[12]
The Family Court Judge's decision	[20]
The appeal to this Court	[37]
Was there an agreement that the mother would return the children to the United Kingdom?	[42]
No wrongful retention in New Zealand on 12 June 2011	[61]
Removal and retention	[63]
Anticipatory breach	[65]
Consequence of anticipatory breach	[75]
Counsel's claim of factual error by the Family Court Judge	[89]
The children's habitual residence on 12 June 2011	[91]
Did the father acquiesce or consent?	[108]
Conclusion	[122]

1 This is an appeal against a decision of District Court Judge S J Coyle in the Family Court at Queenstown (heard at Alexandra) ordering that the two children of the appellant and respondent be returned to the United Kingdom pursuant to s 105 of the Care of Children Act 2004 (the Act) and the Hague Convention.

Background

2 The parties (to be described as mother and father) are the parents of two boys born in the United Kingdom on 31 May 2006 and 4 November 2007. They were aged five and four at the time of the hearing in the Family Court. The parents were originally from New Zealand and moved to live in the United Kingdom in mid 2001, and were married in August 2002. The marriage broke down and the parties were divorced on 23 March 2010.

3 On 14 May 2010, the parents, in the course of mediation, reached an agreement relating to custody and care of the children in the United Kingdom, but as part of which agreed that the mother could make a trip to New Zealand via South Africa from August 2010, to return to the United Kingdom in March 2011. It was agreed that then the children would be in the care of each of the parents on a shared and equal basis. Consequently on 28 August 2010, the mother left the United Kingdom with the children and arrived in New Zealand.

4 Within three weeks, the mother advised the father that she would not be returning to the United Kingdom. The father did not agree to the children staying in New Zealand. The mother naturally wished the children to remain with her, but she indicated to the father that he could come to New Zealand and collect the children to return to the United Kingdom. She believed it was unlikely that he would come (although this was not actually stated until the proceedings were well in train). So although there was a wish the children remain in New Zealand, the mother did not say that she would refuse to yield them up and appeared to accept that the children could be collected by their father in March 2011.

5 The father's position was that, through emails and other communications, the mother had led him to believe that he could travel to New Zealand to collect the children in March 2011 as had been agreed. The father, on 1 December 2010, said:

… I still struggle to come to grips with the fact that you were taking the boys to NZ for a 6 month holiday and within a month of getting to NZ you decided to stay, even though the agreement at mediation was for this not to happen. Whilst not legally binding, I took your word on the fact that you would be back and also that we had set up co-parenting arrangements which we both wanted and you seemed genuinely happy with.

6 And on 2 December 2010:

Clearly very upset and angry that you have in effect abducted my children away from me …

7 Later, on 9 January 2011, the mother and father had a further electronic communication in which they agreed that the children could remain in New Zealand until the youngest boy was due to start school – he turns five on 4 November 2012. So the father's understanding was that the children would remain living in New Zealand for some time until November 2012. Thereafter they would live and go to school in the United Kingdom and practical childcare arrangements would be looked at or “revisited”. The father and his partner travelled to New Zealand in late February/early March 2011 to see the children.

8 On 29 May 2011, the mother and the children went from New Zealand to the United Kingdom for an 18 day holiday, intended to be until 16 June 2011. In his judgment, the subject of appeal, Judge Coyle said:

What is unclear is why [the father] did not, with the children in the jurisdiction of United Kingdom Courts, apply for an order preventing [the boys] being removed from the United Kingdom at that point in time. The reality however is that he did not.

9 One explanation might be that the father believed there was an agreement that the children would be returned to the United Kingdom in November 2012.

10 At about 4pm on Sunday, 12 June 2011, the mother and father met at a café and she then informed him that she would not be returning the children to the United Kingdom in November 2012, or ever, and the children would live with her thereafter in New Zealand. The mother left the United Kingdom with the children on their return flight to New Zealand on Thursday, 16 June 2011. The father sought legal advice and made an application to the United Kingdom Central Authority for return of the children on 31 August 2011.

11 On 14 November 2011, the father's application for return of the children to the United Kingdom was filed in the Family Court in Queenstown.

Applicable legislation

12 Section 105 of the Act provides for the New Zealand Family Court to deal with applications for the return of children “abducted to New Zealand”. This is to facilitate the provisions of the Hague Convention to which New Zealand and the United Kingdom are parties, which governs the removal of children from one contracting state to another.

13 It is well known that the aim of the Hague Convention is that children should not be removed from, or retained outside, their country of habitual residence, without both parents' consent. If that happens they should be returned as soon as possible to the country of their habitual residence to enable the court of that country to determine any disputes around child custody/access/care arrangements.

14 Article 3 of the Hague Convention provides:

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

  …

15 Section 105 provides the jurisdiction under which the Family Court in New Zealand deals with these applications:

105 Application to Court for return of child abducted to New Zealand

• (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—

  • (a) that the child is present in New Zealand; and

  • (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

  • (d) that the child was habitually resident in that other Contracting State immediately before the removal.

• (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—

  • (a) an application under subsection (1) is made to the Court; and

  • (b) the Court is satisfied that the grounds of the application are made out.

• (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.

• (4) A Court may dismiss an application made to it under subsection...