RCL v Apbl

[2012] NZHC 1292

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS

11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2012-425-000145 [2012] NZHC 1292

BETWEEN  RCL Appellant

ANDAPBL Respondent

Hearing:         28 May 2012 (Heard at Dunedin)

Counsel:         L A Anderson for appellant

G Collin and L Harrison for respondent

Judgment:      11 June 2012

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]

RCL v APBL HC INV CIV-2012-425-000145 [11 June 2012]

[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…