A v H
[2019] NZHC 1283
•7 June 2019
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE judgments/
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CIV-2019-416-3
[2019] NZHC 1283
UNDER the Care of Children Act 2004 BETWEEN
A
Appellant
AND
H
Respondent
Hearing: 21 May 2019 Appearances:
R Rao for Appellant
J D Allen and W Zhang for Respondent
Judgment:
7 June 2019
JUDGMENT OF CLARK J
Introduction
[1] Mr A appeals against a decision of Judge Raumati delivered in the Family Court at Gisborne on 7 December 2018 declining his application under the Care of Children Act 2004 for return of his children to Fiji.1 Mr A contends that the Judge erred in concluding that his children were not habitually resident in Fiji at the relevant time.
1 A v H [2018] NZFC 9577.
A v H [2019] NZHC 1283 [7 June 2019]
[2] I have concluded, for the reasons which follow, that Mr A’s appeal is to be dismissed.
Background
[3] Mr A and Ms H are New Zealand residents, born in Fiji. They were married in Fiji in December 2008 and have two children, a daughter aged six and a son aged three. Where it is necessary to refer to either child individually I refer to the children simply as the daughter or son in order to protect their identities.
[4] Both children were born in New Zealand and have dual New Zealand and Fijian citizenship. The couple have a history of travelling from Fiji to New Zealand for various reasons, including for medical, work and recreational purposes, as well as for the births of their children.
[5] During one visit in September 2013, Ms H had arranged through an immigration officer for the assistance of the New Zealand Police to enable her to leave the airport separately from Mr A on arrival in New Zealand. She said Mr A had been holding her against her will in Fiji. Ms H obtained a temporary protection order against Mr A and an interim parenting order giving her the day-to-day care of their daughter. Relying on the Convention on the Civil Aspects of International Child Abduction (the Convention) Mr A applied for the return of the children to Fiji.2
[6] On 24 April 2014, the Family Court made a final protection order and declined Mr A’s application for the return of the children to Fiji on the grounds that there was a grave risk the daughter would be exposed to physical or psychological harm or would otherwise be placed in an intolerable situation.3 Mr A appealed. In circumstances “where both counsel agreed that the Family Court Judge had failed to articulate his reasons for exercising relevant discretions in respect to both matters, both matters were sent back to the Family Court Judge to allow for this”.4 The parties reconciled, however, and returned to Fiji with their daughter in August 2014.
2 Convention on the Civil Aspects of International Child Abduction 1343 UNTS 98 (opened for signature 25 October 1980, entered into force 1 December 1983).
3 Care of Children Act 2004, s 106(1)(c); A v H [2014] NZFC 3005.
4 A v H, above n 1, at [9]; Huntly v Hamilton [2014] NZHC 1686.
[7] As Judge Raumati observed, the parties’ involvement in the proceedings that I have outlined gave them some understanding and experience of the Family Court in New Zealand and of the Convention.5
[8] The family travelled again to New Zealand for the birth of their son in June 2015. On 1 February 2016, the Magistrate’s Court in Fiji made a custody order by consent, which recorded the children’s habitual residence as Fiji.
[9] The family travelled to New Zealand again arriving on 19 March 2017. They travelled on return tickets, which had them departing New Zealand for Fiji on 4 April 2017. But the parties rented a property in Auckland for a period of one year and did not return to Fiji in accordance with the return tickets, although they did visit Fiji for approximately two weeks between 17 July and 1 August 2017.
[10] On 3 October 2017, Mr A and Ms H separated. Ms H says she had been the victim of domestic abuse by Mr A. When Mr A was away from home, she packed up the children and left. She has provided day-to-day care to the children since separation and the children have remained in New Zealand. Mr A has had varying contact with the children since separation and has spent time in both New Zealand and Fiji.
[11] On 27 September 2018, Mr A applied, for the second time, to have his children returned to Fiji.
The law
[12] Subpart 4 of pt 2 of the Care of Children Act 2004 (the Act) governs international child abduction by implementing the Convention.6
[13] Section 105(1) of the Act permits a person to apply for an order for the return of a child to a Contracting State if:7
5 At [10].
6 Care of Children Act 2004, s 94.
7 Section 105(1). Subject to Articles 39 and 40 of the Convention, for the purposes of subpart 4, the Contracting States (other than New Zealand) are those countries in respect of which the Convention is for the time being in force for New Zealand.
(a)the child is present in New Zealand;
(b)the child was removed from another Contracting State in breach of the applicant’s rights of custody in respect of the child;
(c)those rights of custody were actually being exercised by the applicant at the time of the removal, or would have been so exercised but for the removal; and
(d)the child was habitually resident in the other Contracting State immediately before the removal.
[14] The term “removal” is defined to include the wrongful retention of a child within the meaning of art 3 of the Convention.8
[15] If the s 105(1) preconditions for an order are satisfied, the Court must make an order for the prompt return of the child unless one of the grounds in s 106 are made out. The s 106 grounds may be summarised as follows:9
(a)The application was made more than one year after the removal of the child and the child is now settled in his or her new environment.
(b)The applicant was not actually exercising custody rights in respect of the child at the time of the removal, unless the applicant establishes those rights would have been exercised if the child had not been removed.
(c)The applicant consented to, or later acquiesced in, the removal.
(d)There is a grave risk that the child’s return would expose the child to physical or psychological harm; or would otherwise place the child in an intolerable situation.
8 Section 95.
9 Section 106(1).
(e)The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to give weight to the child’s views.
(f)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.
[16] The burden of proof rests with the applicant to satisfy the Court that the criteria under s 105 are made out. The burden of proof then shifts to the respondent to make out any defence under s 106. The Court retains a discretion whether to refuse to make an order if the s 105 criteria are met but a defence is made out.
[17] The term “habitual residence” is not defined in the Act10 or in the Convention, but this Court has described habitual residence in the following terms:11
It is clear, and there is ample authority to show, that the construction of the phrase “habitual residence” has no particular legal magic. It is to be construed in the ordinary meaning of the words. The essence of “habitual” is customary, constant, continual. The opposite of that is casual, temporary, or transient. I think, too, it is important that it is the words that have been used in the Convention rather than in the Act which are to be construed. I believe there is a clear distinction between that phrase and the phrase “ordinary residence”, but more particularly from the concept of the law which has built up around the word “domicile”.
[18] In Basingstoke v Groot, the Court of Appeal described the inquiry into habitual residence as:12
… a broad factual one, taking into account such factors 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 in the past and currently), the degree of assimilation into the state (including living and schooling arrangements), and cultural, social and economic integration. In this catalogue, settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. Concentration on settled purpose should not obscure the broad factual nature of the inquiry…
10 Except for the definition in s 95 of the Care of Children Act 2004, which is not relevant for present purposes.
11 H v H (1995) 13 FRNZ 498 (HC) at 501.
12 Basingstoke v Groot [2007] NZFLR 363 (CA) at [28].
[19] The Court of Appeal also remarked that “[t]he test is usually directed to the parental intentions as to the quality and length of residence in the new state rather than to their intentions as to the abandonment of the previous habitual residence”.13
[20] It is commonplace for Convention hearings to be conducted on the basis only of submissions and sworn testimony with conflicts in affidavit evidence being decided without cross-examination.14 The Court of Appeal in Basingstoke v Groot addressed the risks thought to be inherent in such an approach:
[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) and 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 subjective intentions 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) than to their bare assertions in evidence as to the position — see Re H (minors) (abduction: acquiescence) [1998] AC 72 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 of the evidence, whether the applicant has proved the matters 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 will 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. …
The decision being appealed
[21] Judge Raumati declined Mr A’s application on the basis the children were not habitually resident in Fiji immediately before their removal. As the parties had agreed this issue was to be determined first, it became unnecessary for the Judge to address the remaining issues.
[22] The Judge began by setting out the competing contentions of the two parties. Mr A maintained that the children never lost their habitual residence in Fiji when the
13 At [29].
14 See Care of Children Act 2004, s 107, which requires such applications to be dealt with “speedily”.
family travelled to New Zealand in March 2017. He said that the purpose of the travel was to purchase used vehicles to send back to Fiji to be used for parts in his truck- parts business. The family’s stay in New Zealand was extended beyond their initial intention because of those work commitments. Ms H on the other hand, claimed that the parties had agreed to move permanently to New Zealand with the children, meaning they lost habitual residence in Fiji in March 2017.
[23] Mr A presented two orders of the Family Division of the Magistrate’s Court in Fiji in support of his application. The first order, dated 19 March 2015, provided him with day-to-day care of their daughter, while Ms H was to “have contact” with her on a daily basis. The second order, dated 1 February 2016, gave Ms H day-to-day care of their son while Mr A was “at liberty to contact” him on a daily basis. The second order also stipulates that “the place of residence of both children will be in Fiji Islands unless mutually agreed by both parties to change place of residence” and it prohibits either child from being “removed from Fiji jurisdiction without consent of … both parents”. Both orders were obtained by consent.
[24] The Judge found it curious that both orders were made prior to the parties separating and while they lived together. Ms H claimed that she was coerced into consenting to those orders, although she was said to have obtained independent legal advice. Ultimately, the Judge did not regard the orders as relevant because he was satisfied the children had been removed from Fiji with the consent of both parents.
[25] The Judge’s reasons for this conclusion, including his responses to submissions raised by Mr A, can be distilled to the following points:
(a)The history of travel to New Zealand prior to March 2017 established a pattern of short visits, which contrast to the six months the children spent in New Zealand before Ms H and Mr A separated in October 2017.
(b)The two-week trip the family took back to Fiji in July 2017 further supports the proposition that the family had shifted to New Zealand on
a permanent basis. The six-month period could not be explained by two periods of extended business travel.
(c)There would be no need to dispose of assets in Fiji in order to permanently move to New Zealand because the family had been living with Mr A’s family, and Mr A’s business operates out of both Fiji and New Zealand and is also operated by other members of Mr A’s family.
(d)On arrival in New Zealand, Mr A rented a property in Auckland for a period of one year, which suggests he must have been confident of having access to sufficient funds to live in New Zealand for that period.
(e)Significant farewell celebrations might not be expected in circumstances where the family would be making regular trips to Fiji.
(f)Ms H provided text message evidence in support of her assertion that Mr A agreed the children would be remaining in New Zealand.15
(g)In his April 2014 judgment declining Mr A’s first Convention application, Judge Brown expressed concerns with respect to Mr A’s veracity.
Grounds of appeal
[26] Mr A appeals the Family Court decision on two grounds, namely that the Judge erred by:
(a)finding that the children were not habitually resident in Fiji prior to their retention in New Zealand in October 2017; and
(b)preferring the evidence of Ms H over his evidence in relation to whether the parties had agreed to relocate to New Zealand.
15 The Judge did note Mr A’s riposte that those messages were sent a time when believed he did not have a case that the children had been unlawfully retained in New Zealand. The messages were sent in December 2017, after the parties separated.
Approach on appeal
[27] Section 143 of the Care of Children provides a general right of appeal by way of rehearing. This Court is required to form its own view of the merits of the decision, although the burden rests on the appellant to demonstrate that the decision appealed from was wrong.16
Competing contentions
Mr A
[28] Mr Rao, counsel for Mr A, submitted that the Judge failed to give recognition to the children’s enduring association with Fiji, including that:
(a)Mr A and Ms H were both born in Fiji.
(b)Although Mr A and Ms H chose for their children to be born in New Zealand, they ensured their children would also have Fijian citizenship.
(c)For the entirely of the relationship, the children’s home was a downstairs flat at Mr A’s parents’ house in Fiji.
(d)After the reconciliation following the 2014 court proceedings, the family returned to Fiji.
(e)The Fijian consent order dated 1 February 2016 recorded that the children’s habitual residence would be Fiji.
(f)Notwithstanding that the family regularly travelled to New Zealand, they inevitably returned to Fiji.
(g)Mr A has significant business interests in Fiji.
(h)Some members of the children’s paternal family live in Fiji.
16 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3]–[4].
[29] Mr Rao also submitted that the Judge erred in rejecting Mr A’s explanation that he was in New Zealand for business travel in 2017. Mr A’s explanation should be accepted for the following reasons:
(a)The family arrived in New Zealand on 19 March 2017 on return tickets to Fiji, and with only one checked bag each.
(b)The family returned to Fiji on 17 July on one-way tickets.
(c)The family arrived in New Zealand on 1 August 2017 on return tickets to Fiji.
(d)The fact there were no farewells is significant and cannot be dismissed on the basis that the children would regularly return to Fiji because assuming such future travel would be in tension with Ms H’s evidence that the situation in Fiji had become untenable.
[30] Mr Rao further submitted the Judge erred by giving no weight to the consent order. While accepting the order cannot be determinative Mr Rao submitted it is the only documentary evidence of the parties’ intentions as to the children’s habitual residence and therefore the order is highly relevant. Further, Ms H’s claim that she was coerced into consenting to the order is not credible once the circumstances in which the order was made are taken into account.
[31] Mr Rao argued that the six-month period the children spent in New Zealand was insufficient to acquire a new habitual residence irrespective of any agreement or settled purpose by the parents to relocate to New Zealand.
[32] Mr A’s position is that Ms H’s narrative is insufficient to satisfy the evidential burden for raising a claim that the parties agreed to relocate; her narrative is inconsistent and should be rejected. Mr Rao highlighted the fact Ms H said she was essentially forced to flee Fiji due to abuse by Mr A, yet she was willing to:
(a)return with Mr A to Fiji in July; and
(b)seek and accept transportation from Mr A to get from Hamilton to Gisborne in December 2017.
[33] Mr Rao also argued that Ms H’s contention that she was coerced into signing the consent order is inconsistent with the fact she was the applicant for the order and received independent legal advice.
Ms H
[34] Mr Allen, counsel for Ms H, identifies the following facts as supporting the conclusion the children were habitually resident in New Zealand as at 3 October 2017:
(a)The parties deliberately chose to have their children born in New Zealand and receive medical care in New Zealand.
(b)The parties looked at purchasing a property in New Zealand.
(c)The parties rented a property for a year and retained it during the two weeks they spent in Fiji in July 2017.
(d)Members of both the children’s paternal and maternal families live in New Zealand.
[35] Mr Allen submitted the Court can take judicial notice of the fact that sometimes people who often travel between the same locations purchase return tickets in order to obtain cheaper air fares, knowing they can later change the date of the return fare. It was suggested the one-way ticket to Fiji in July 2017 could have been the return leg of the March 2017 ticket. Mr Allen also highlighted that the August 2017 return ticket bore a return date of 8 August 2017 yet, again, the parties stayed in New Zealand beyond that date. They also continued to rent their rental property during their fortnight in Fiji.
[36] In relation to issues of credibility, Mr Allen submitted it is not uncommon for victims of domestic violence to continue associating with their abuser. Mr Allen
illustrated the point by reference to Ms H’s reconciliation with Ms A after the Court issued a protection order against him.
[37] Regarding Mr A, there were indications from the previous Convention proceedings that he cannot be trusted, including the following matters which Mr A denied in the face of evidence of their truth:
(a)Mr A abused Ms H.
(b)Ms H had been imprisoned in the family home prior to the 2014 hearing.
(c)Mr A had an association with an Inspector with the Fiji Police.
[38] Mr Allen also referred to photographs that Mr A sent to Ms H following their separation. They show Mr A bare-chested, facing the camera, holding a firearm, (he later said it was an air rifle) and pulling the finger. Mr Allen submitted that where the Court is uncertain as to the habitual place of residence, it can consider the interests of the children and those interests can “tip the scales”.17 If the applicant is unable to discharge the onus of proving the habitual place of residence, then where the child is actually living should be the determining factor.18
[39] Mr Allen drew the Court’s attention to BK v CJ, in which Duffy J held, within the context of the case before her, the wrongful removal occurred when the child left the jurisdiction where the applicant had rights of custody, rather than when it later became apparent the child would remain in New Zealand longer than had been agreed.19
[40] Mr Allen appeared to concede Duffy J’s reasoning undermined Judge Raumati’s decision to adopt 3 October 2017 as the relevant date and that, if 3 October
17 Referring to Langdon v Wyler [2017] NZHC 2535 at [27]–[30], citing In the matter of B (A child)
[2016] UKSC 4, [2016] AC 606 at [42].
18 Referring to Langdon v Wyler, above n 17, at [28]; and In the matter of C (Children) v [2018] UKSC at [34].
19 BK v CJ [2015] NZHC 2169, (2015) 30 FRNZ 350 at [85]–[89].
2017 was not the relevant date, the children would have been habitually resident in Fiji prior to their removal to New Zealand.
[41] Finally, in addressing the s 106 “defences” Mr Allen submitted the Court should exercise its discretion to decline Mr A’s application.
Analysis
[42] Ultimately, the issue for determination by this Court is whether the children were habitually resident in New Zealand on 3 October 2017. Both grounds of appeal are directed to this question, so it will be convenient to deal with both grounds together.
Date of removal
[43] I do not regard BK v CJ as analogous to the present case. In BK v CJ, the mother had consented to her children travelling from their home in Australia to New Zealand to stay with their grandfather. Out of concern for the welfare of the children, the grandfather had travelled to Australia with the intention of taking responsibility for the care of the children. The mother’s intention had been to travel to New Zealand five days later and stay in New Zealand. However, on the anticipated day, she decided to stay in Australia and asked for her children to be returned. The grandfather did not return the children and instead obtained a custody order in New Zealand. In those circumstances, Duffy J held that the wrongful removal occurred when the children left the country. The later date (when the mother did not travel to New Zealand as originally foreshadowed) was simply the date when the grandfather’s intentions became apparent.
[44] The circumstances in BK v CJ were quite different from the facts in this case where both parties accept that the removal from Fiji to New Zealand in March 2017 was not wrongful. The parties simply disagree about the reasons for travelling to New Zealand in March 2017. A further significant distinction between the facts in BK v CJ and the present case is the six-month period of residence in New Zealand before the parties separated and contention arose around the children. Mr Allen did not argue against habitual residence prior to March 2017 being in Fiji. The circumstance of this case give rise to an argument about wrongful retention in New Zealand from October
2017, rather than wrongful removal in March 2017, or even August 2017. The Judge did not err in this regard.
Was there an agreement to relocate?
[45] Contrary to Mr Rao’s submission recorded at [31] above, the Court of Appeal has made clear that “a settled purpose to leave the place of habitual residence causes that habitual residence to be lost immediately”.20 Accordingly, it is necessary to begin by addressing Ms H’s contention that the parties agreed to relocate to New Zealand. If that proposition is made out, then it will become unnecessary to address other arguments advanced by the parties, including those concerning the children’s respective associations with Fiji and New Zealand.
[46] Despite Mr Rao’s submission to the contrary, I am satisfied the contemporaneous evidence supports Ms H’s contention that when the family travelled to New Zealand in March 2017 it was because the parties had agreed to relocate. The evidence shows the parties entered into a 12-month lease of a rental property and, apart from a fortnight’s trip back to Fiji, the family stayed in New Zealand from March to October 2017 when Ms H left the family home with the children. No comparable behaviours, which I regard as indicia of “settled purpose”, featured in any of the many previous trips to New Zealand.
[47] The burden then lay on Mr A to prove on the balance of probabilities that there was no such agreement to relocate. He attempted to do so by advancing his alternative narrative of successive extended business trips. Since the parties advanced competing narratives, the rejection of one on the grounds of credibility and plausibility entitled the Judge to accept the other. In effect, the Judge was tasked with deciding which narrative was more likely.
[48]In my view, Ms H’s narrative is more likely to be true for the following reasons:
(a)Mr A has not been able to provide a convincing reason as to why the parties entered into a year-long lease shortly after arriving in
20 SK v KP [2005] 3 NZLR 590 (CA) at [73].
New Zealand, or why they looked at purchasing a house in New Zealand around that time.
(b)Mr A has not been able to explain why the parties retained the rental property when they returned to Fiji in July 2017 if their intention had been to return to Fiji on a permanent basis.
(c)Mr A has not been able to explain why the parties returned to New Zealand on 1 August 2017, following their fortnight in Fiji, if they had not if fact relocated to New Zealand.
(d)Mr A has not been able to explain why his business trips required him to stay in New Zealand for four months and two months respectively when the longest the parties had stayed in New Zealand on previous occasions was just over five weeks, with the majority of the previous trips lasting only one or two weeks.
(e)The Family Court has previously questioned Mr A’s credibility in earlier proceedings on similar matters.
[49] I do not consider Ms H’s request of Mr A to drive the family to Gisborne to visit her parents during the 2017 Christmas holiday period as demonstrating her allegations of abuse should not be believed. As Mr Allen submitted, it is not uncommon for victims of domestic abuse to stay in association with their abusers. On Mr A’s own testimony he “had asked … if he could at least see the children in the Christmas 2017 holidays, but she refused”. To accommodate Mr A’s desire to see his children, and the children’s desire to see their father over the Christmas period, does not of itself negate Ms H’s narrative.
[50] Further, her claims of abuse are supported by the confronting images Mr A sent her of himself ostensibly armed and in several depictions his right arm advanced towards the camera with his middle finger raised. In some photographs he is seated. In others he is standing close to and above the camera lens creating an intimidating
silhouette of himself with his weapon and raised finger. Mr A is completely unrealistic to expect that sending such images to his wife could be regarded as “just silly posing”.
[51] I accept of course, the consent order made by the Family Division Magistrate’s Court in Fiji on 1 February 2016 was an order made by a court of competent jurisdiction and, as Mr Rao submitted, is not to be simply discounted. Mr Rao took me carefully through the evidence bearing on Ms H’s consent to the order, including that she received legal advice. Although Ms H was the applicant for the 19 March 2015 order, I note that Mr A is listed as the applicant for the 1 February 2016 order, contrary to Mr Rao’s submission.
[52] Accepting the rest of what Mr Rao says, including that the consent order is part of the context to be considered in determining whether the parties agreed to relocate to New Zealand, the consent order does not displace Ms H’s narrative, which is supported by the contemporaneous evidence I have outlined. Ms H’s claim of being coerced is corroborated in a sense by the Family Court’s acceptance of the essentials of Mr H’s case. The Judge said:21
[42] …I am not sure whether Ms [H’s] captivity was as literal as described but for reasons I will now set out, I think it was real…
[43] I am not sure whether through the period of her “captivity” Ms [H] could not have at some stage physically escaped. I think however that her imprisonment was complete and effective because she has no realistic way of removing [her daughter] from the situation.
[53] The Family Court judgment was appealed successfully but the parties agree the error was in the Judge’s failure to provide reasons for the orders he made. The Judge’s assessments of credibility are undisturbed by the appeal result. In summary, the consent order does not, of itself, support Mr A’s argument that there was no agreement to relocate to New Zealand as at March 2017. In any event, I note that paragraph 5 of the order states:
THE place of residence of both children will be in Fiji unless mutually agreed by the [sic] both parties to change place of residence.
(Emphasis added.)
21 A v H, above n 3, at [41]–[43].
[54] Mr A says the flights to New Zealand were purchased as return tickets while the flights to Fiji were purchased as one-way tickets. The return tickets therefore evidence an intention to return not an intention to relocate.
[55] In the context of this case, and considering the following factors, I do not regard the purchase of return tickets as more probative of Mr A’s narrative over Ms H’s:
(a)Return fares may have been purchased for reasons of economy. I note the tickets were Air New Zealand Pacific Smart Saver fares, which are able to be changed to an equivalent fare up until departure.
(b)The one-way fares to Fiji for July 2017 were under the same booking reference as the March 2017 fares, strongly supporting Ms H’s position that the July tickets substituted for the return tickets issued in March 2017.
(c)The August 2017 fares were purchased with a different airline.
[56] Regardless, any doubt about what the tickets demonstrate is overshadowed by the matters I have set out above at [46] and [48] as supportive of Ms H’s account. I accept Ms H’s narrative as inherently probable for these same reasons.
[57] The appellant has not established the Judge erred in preferring Ms H’s account or in concluding that the children were habitually resident in New Zealand prior to 3 October 2017.
Result
[58]The appeal is dismissed.
Karen Clark J
Solicitors:
Inder Lynch, Manukau for Appellant
Woodward Chrisp Lawyers, Gisborne for Respondent
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