S v P
[2018] NZHC 2645
•11 October 2018
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 AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-1080
[2018] NZHC 2645
UNDER the Care of Children Act 2004 IN THE MATTER
of an appeal against the decision of the Family Court at Manukau dated 7 May 2018
BETWEEN
S
Appellant
AND
P
Respondent
Hearing: 8 October 2018 Appearances:
L F Soljan for the appellant
A E Ashmore and N J Fairley for the respondent M N Tolich as lawyer for child
Judgment:
11 October 2018
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 11 October 2018 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Counsel/Solicitors:
Ms L Soljan, Barrister, Auckland
Ms L Dunraj (appellant’s instructing solicitor), Auckland Family and Elder Law, Auckland Mr A Ashmore, Barrister, Auckland
Mr M Tolich, Corban Revell, Solicitors, Auckland
S v P [2018] NZHC 2645 [11 October 2018]
Introduction
[1] S appeals against a Family Court decision ordering the return of her two children to Australia where their father, P, resides.
[2] S was formerly in a relationship with P, the respondent. They lived together in Western Australia with their two children (now aged four and eight). After negative publicity relating to P’s business practices, the parties agreed the mother should take the children temporarily to New Zealand, to avoid the impact of public scrutiny. No definitive end-point was agreed, but the strong expectation was the children would be returned after the end of the 2017, and in time for commencement of the 2018 school year.
[3] That has not happened; the children remain in New Zealand with their mother. On 15 January 2018, P’s application for their return under s 105 of the Care of Children Act 2004 (the “Act”) was filed in the Family Court.1 That Act gives effect to the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”). S opposed on grounds P consented to or acquiesced in the children’s retention in New Zealand.
[4] The Family Court disagreed. On 7 May 2018, Judge Callinicos found S failed to discharge the onus of establishing P’s clear and unequivocal consent or acquiescence.2 S appeals that decision.
Approach on appeal
[5] The Convention is incorporated into New Zealand legislation in Part 4 of the Act. P’s application for return of the children is to be addressed under s 105. The determination of such an application involves three key stages:
1 Counsel advises the process is the applicant applies in the jurisdiction of the child’s habitual residence (here, Western Australia) as did P on 16 December 2017. The ‘Central Authority’ of that jurisdiction transfers the proceeding to the ‘Central Authority’ in the jurisdiction to which the child has been removed or is retained (here, New Zealand), which directs local counsel to commence the proceeding there.
2 [P v S] [2018] NZFC 2904.
(a)first, the onus is on the applicant to establish the threshold requirements in s 105 are made out;
(b)second, if that threshold is crossed, the onus passes to the respondent to establish one of the possible defences enumerated in s 106 – here, the defence of consent or acquiescence;
(c)finally, even if a s 106 defence is made out, I retain a residual discretion nonetheless to require the children to be returned. (Whereas if the defence is not made out, I “must” order the children’s return.3)
[6] The approach on appeal is not ordinarily the same throughout.4 The first two stages require an evaluation of factual matters. Following Austin, Nichols, I am free to reconsider the factual issues afresh on appeal.5 The first stage above was conceded by S before the Family Court and again today. Nonetheless, I address it briefly below to confirm the concession is appropriate.
[7] The final stage would ordinarily be an appeal against a discretion.6 However, as Judge Callinicos did not address this third stage (that being unnecessary given his previous findings), I may approach it afresh if it becomes relevant to my determination.
[8] Before working through each of the three stages, I pause to lay out the context to this appeal: the factual background, the Family Court decision, and the Convention’s objectives.
Context
—factual background
[9] The parties began their relationship in 2006, living together since early 2008 and marrying the next year. The two subject children were born in 2010 and 2014.
3 Care of Children Act 2004, s 105(2).
4 B v F [2010] NZFLR 67 (HC) at [8].
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
6 May v May (1982) 1 NZFLR 165; and Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40.
They all lived together in Western Australia throughout the intervening years until, as Judge Callinicos puts it:7
… a once stable and happy family situation in Perth, Australia was unsettled by a sudden corruption and criminal inquiry into the business operations conducted by the applicant father.
The investigation caused considerable stress to the parties. They faced growing negative publicity and community outcry – including risk to at least the older child from fellow school children, whose families may have been affected by P’s activities
– as well as the financial strain of losing their primary income source.
[10] The parties agreed S and the children should travel to New Zealand temporarily to distance themselves from these events. They left on one-way tickets on 5 August 2017. No precise date of return was agreed but, as I discuss later, I agree with the Judge the evidence indicates a strong expectation they would return to Australia after the end of the 2017, and in time for the 2018, school year.
[11] The investigation went poorly for P, and in August 2017 he advised S to “prepare for the worst”. Her case is, from that point onwards, he began making plans to move to New Zealand. Or, even if that was not his actual intention, she submits his conduct throughout September to December clearly communicated that intention to her.
[12]The substance of Judge Callinicos’ decision is an assessment of that conduct.
—Family Court decision
[13] Judge Callinicos heard argument on 19 April 2018. As is typical for proceedings under the Convention – where the Act expressly states applications are to be dealt with speedily8 – the Judge decided the application on the papers, without any testing of the parties’ sworn evidence.
7 [P v S], above n 2, at [1].
8 Care of Children Act 2004, s 107.
[14] The Judge’s reasoning is detailed and comprehensive. After discussing the background, he identifies the central issue as:9
… whether, following the children’s arrival in New Zealand in accordance with the agreement of the parties, the applicant acquiesced to the children being retained in New Zealand rather than them returning to Australia at the end of the 2017 school year.
[15] Before addressing this issue, which relates to the second stage of the test, the Judge found the jurisdictional requirements in s 105 were made out. Then, discussing the relevant factual material and legal principles in considerable depth, His Honour systematically addressed each of the grounds upon which S invited an inference of P’s acquiescence.
[16] Counsel for S, Lisa Soljan, complains the Judge took an overly narrow approach to addressing the pertinent factual data, rather than the broad and robust approach recommended by other authorities.10 That complaint is unfounded. After his close analysis, His Honour stepped back:11
I am cautious not to make determinations based upon a point by point assessment of the various circumstances upon which the respondent relies to establish acquiescence. I remind myself that often circumstances when viewed in isolation may not disclose the fuller picture and that an assessment of all the collective circumstances to the balance of probabilities is required.
[17]Leaning heavily on (what he considered) the analogous decision of TB v JPB,12
His Honour ultimately concluded:13
Whether viewed collectively or individually, the circumstances relied upon by the respondent fall considerably short of indicating an acquiescence of a real, positive and unequivocal kind. … At best, I could conclude only that there was a slight possibility that his reference to a wish to “migrate” to New Zealand indicated that he might move here permanently. But that mere possibility falls well short of being the requisite unequivocal acquiescence that the children could be retained in New Zealand.
On that basis, the Judge formally ordered the children be returned promptly to Australia.
9 [P v S], above n 2, at [11].
10 H v R [2017] NZHC 2617 at [32].
11 [P v S], above n 2, at [62].
12 TB v JPB HC Auckland CIV-2011-404-679, 29 June 2011.
13 [P v S], above n 2, at [65].
[18] Ms Soljan is particularly critical the Judge elevated the threshold to one of determining the ‘permanence’ of P’s arrangements. P’s counsel, Alex Ashmore, says it is an easy slip to make. But, as may be seen from the Judge’s last sentence above, he plainly had his eye on the main issue: whether P should be taken to have consented to (or acquiesced in) S’s retention of the children beyond the date of the original arrangement for their return. I return to this issue at [42] below.
[19]S filed her notice of appeal on 1 June 2018.
—Convention objectives
[20]The expressed objects of the Convention are to:14
(a)secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b)ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
[21] These objects must be borne in mind; I am not being asked conclusively to determine the ongoing care and guardianship of the children. The Convention is concerned with the question of forum. As the Convention’s official outline explains:15
The return order is designed to restore the status quo which existed before the wrongful removal or protection, and to deprive the wrongful parent of any advantage that might otherwise be gained by the abduction.
[22] I also acknowledge the wider deterrent function of the Convention. Justice Fisher properly recognised the interests of children globally are promoted by a “firm attitude to the return of children” in strictly applying the Convention requirements.16
[23]With this in mind, I turn to the first of the three stages.
14 Convention on the Civil Aspects of International Child Abduction 1343 UNTS 89 (opened for signature 25 October 1980, entered into force in New Zealand 1 August 1991), art 1.
15 “Outline: 1980 Hague Child Abduction Convention” (May 2014) < v S [1999] NZFLR 625 at 631; see also HJ v Secretary of Justice [2006] NZSC 97 at [40].
Section 105 threshold requirements
[24] Subject to s 106, a court must make an order a subject child be returned promptly if an application is made under s 105, and the Court is satisfied the grounds of the application are made out.17 There are four grounds. The claimant must establish:
(a)the child is present in New Zealand;
(b)the child was removed from another Contracting State in breach of that person’s rights of custody in respect of the child;
(c)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;
(d)the child was habitually resident in that other Contracting State immediately before the removal.
There is no dispute, as S concedes, these foundational criteria are established here.
[25] The children are currently in New Zealand, but resided in Australia (a contracting State) prior to their removal.
[26] The Act defines ‘rights of custody’ as including: “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 in particular, the right to determine the child’s place of residence”.18 P clearly had and retains rights of custody over the children, which he has exercised by his active and ongoing interest and care for them.
[27] ‘Removal’ is defined to mean both “wrongful removal or retention”.19 The latter is relevant here. The retention is the failure to return the children within the agreed timeframe.20 While the parties differ on the exact terms of their original
17 Care of Children Act 2004, s 105(2).
18 Section 97.
19 Section 95 reads: “removal, in relation to a child, means the wrongful removal or retention of the child within the meaning of Article 3 of the Convention”.
20 S v M [1993] NZFLR 584 at 584-585; and AHC v CAC [2011] 2 NZLR 694 at [30].
agreement, it is common ground S retained the children in New Zealand beyond the timeframe originally agreed, and she was clear before the timeframe expired it was her intention to do so.21
Section 106 defence: consent or acquiescence
[28] Once the jurisdictional grounds in s 105 are made out, the onus shifts to S to prove, again on the balance of probabilities, she has an available defence under s 106. I must order the return of the children, unless a s 106 defence is established.
[29]The relevant defence here is consent or acquiescence.
—legal principles
[30] Section 106 relevantly provides a court may refuse to make an order under section 105(2) for the return of the child if the person opposing the order establishes “the person by whom or on whose behalf the application is made, consented to, or later acquiesced in, the removal”.22
… consent or acquiescence?
[31] The distinction between consent and acquiescence is a question of timing. Consent occurs prior to removal; acquiescence occurs after.23 Thus “later acquiesced in” means ‘acquiesced in after removal’; comparably, “consented to” could have been expressed ‘earlier consented to’. Judge Callinicos considered acquiescence the relevant defence, and Ms Soljan makes that submission today. She goes further, to say S’s asserted intention to retain the children in New Zealand – even while she was entitled to have them in terms of P’s consent to their removal from Australia – is her ‘anticipatory breach' of P’s rights of custody.24
21 If P’s consent to S keeping the children beyond that timeframe is established on the evidence, that might appear to negate any “breach” (or in Convention language, “wrongful removal”) and so strike at the heart of the s 105 jurisdiction to return children. But it has been accepted internationally, and also in New Zealand, the Convention requires the issue of consent be determined instead as a defence. See the discussion in Re P (Abduction/Consent) [2004] 2 FLR 1057; and AHC v CAC, above n 20.
22 Care of Children Act 2004, s 106(b)(ii).
23 Chief Executive of Department for Courts v Phelps [2000] 1 NZLR 168 at [12].
24 AHC v CAC, above n 20, at [55].
[32] But I agree with Mr Ashmore, the situation is better characterised as a question of consent. Here, the moment of retention was when S kept the children in New Zealand after the initial period for which P had given his consent. All of P’s actions relied upon by S in establishing her defence occurred before the end of the 2017 school year (which concluded on 15 December 2017). P’s Convention application was signed the next day. It follows Mr Ashmore correctly articulates the key legal question as whether “prior to the children’s agreed return date in December [P] consented to them staying beyond that date”.
[33] That finding is not immaterial. While both consent and acquiescence are ‘one-off’ events, or moments rather than continuing states, consent may be withdrawn up to and until the moment of removal or retention;25 acquiescence, however, cannot be withdrawn. Instead, as McGechan J opines, “a wronged parent should be fixed with the clear contrary conduct, on which others might well have relied”.26 Ms Soljan did not express it precisely in these terms. But I comprehended her ‘anticipatory breach’ submission was to argue P – having supposedly accepted by his conduct S’s asserted intention to retain the children in New Zealand – thereafter could only (and irrevocably) later acquiesce. When the moment of retention arrived, it would by then be too late for P subsequently to withdraw any contended consent.
[34] I am not taken with the submission in the present context. An ‘anticipatory breach’, at least in its usual contract law setting, arises where “it is clear that a term in the contract will be breached”.27 The court takes a conservative approach to determining whether there is requisite clarity, so that the risk of unexpected performance falls on the innocent party.28 Even so, anticipatory breach only affords the innocent party a right to cancel the contract if the term is agreed to be essential, or the effect of the breach is serious.29 But – in the present context, AHC v CAC notwithstanding30 – no expression of determination by S not to perform her obligation to return the children at the end of the 2017 school year would have been sufficient to
25 H v R, above n 10, at [35].
26 B v B [1998] NZFLR 337 at 347.
27 Contract and Commercial Law Act 2017, s 37(1)(c) (emphasis mine).
28 Brookland Motor Co Ltd v Bridge Wholesale Acceptance Corp (Australia) Ltd (1994) 7 NZCLC 260,449 at 260,461; see also Jack v Guy CA164/03, 1 December 2004.
29 Contract and Commercial Law Act 2017, s 37(2)(a) and (b).
30 AHC v CAC, above n 20, at [55].
prevent her timely performance of that obligation. Moreover, application of a contractual standard regulating voluntary arrangements between private parties is not an obvious basis on which to determine compliance with Convention standards.
… legal test for consent
[35] Both parties cite as good authority the distillation of the relevant legal principles in Re K (Abduction: Consent).31 In that case, Lady Hale examined two competing approaches to consent, finding in favour of a broad approach:32
It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. 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.
In plain English, consent is a subjective matter. But on an objective analysis, consent may be established through the wronged party’s conduct, irrespective of their actual mindset. Re K affirms that possibility, but states the evidence must be “clear and cogent”.33 Mere “implied” or “constructive” consent will not suffice.34
[36] These principles were adopted by the Court of Appeal in Andrews v Secretary of Justice.35 Fitzgerald J more recently has added caution. In interpreting some of the principles from Re K – for instance, the proposition the defence must fail if the court is left uncertain as to consent36 – Her Honour observed “care must be taken that this does not lift the standard of proof from the balance of probabilities to prove beyond reasonable doubt”.37
—application
[37] In evaluating the evidence, Judge Callinicos isolated and systematically discussed the key bits of evidence, before standing back to address the issue globally.
31 Re K (Abduction: Consent) [1997] 2 FLR 212.
32 At 216-218.
33 At 288.
34 H v R, above n 10, at [32].
35 Andrews v Secretary for Justice [2007] NZCA 223, [2007] NZFLR 891.
36 Re K (Abduction: Consent), above n 31, at 217.
37 H v R, above n 10, at [36].
I take no exception to that approach, but for my purposes, I consider it helpful to present the evidence narratively to track the developments in the parties’ behaviours and states of mind throughout the material time. This better captures the dynamic character of the unfolding events.
… original period of consent
[38] It is common ground P consented to the children staying temporarily in New Zealand. No return date was made explicit. S maintains the agreement was open- ended: the children would return once matters had “settled down” in Australia.
[39] But I agree with Judge Callinicos the evidence supports P’s position he only really had contemplated, and therefore given consent to, the children staying in New Zealand up to the conclusion of the 2017 school year. That is his own evidence. S’s evidence is P had expressed confidence to her matters would have settled down by this time. This is evident in the email she sent to the children’s Australian school on 2 August 2017. After advising the children’s last day would be 4 August, she requested:
Is it possible to keep a spot for them for next year? … I am hopeful that our situation will change and I am hoping we will be able to send them back to [school] for 2018. If it is possible I can contact you towards the end of the year and we can take it from there.
While S apparently had reservations about P’s confidence, this evidence is consistent with P’s position he had not given consent to the children staying beyond the 2017 school year. There is no basis for suggesting otherwise.
… P’s September visit to New Zealand
[40] On 2 September 2017, P travelled to New Zealand, where he stayed with S and their children until 5 October 2017. S says he took advantage of his time in New Zealand to prepare for a permanent return to New Zealand. In particular, she relies on his conduct in:
(a)obtaining New Zealand documents: he obtained a New Zealand visa, driver’s license, IRD number, and bank account;
(b)supporting her finding employment: he assisted her in preparing for a job interview, and then accompanied her to the interview on 12 September. S stresses the job came with the opportunity to become a registered psychologist (a training pathway which would take two years to complete, although there is no evidence P was aware of this at the time);
(c)considering employment options for himself: he acknowledges he “agreed to look for employment in New Zealand whilst the investigations were ongoing”, and indeed when S’s grandfather offered work, he said he would consider the offer on his return to New Zealand;
(d)participating in the search for larger rental accommodation: he supported the maternal family in finding a larger home for them to rent, visiting several properties with the family, who eventually moved into an alternative residence on 28 October 2017. The grandfather’s evidence was P indicated on tenancy application forms he would be an occupant residing in the house.
[41] I agree with Judge Callinicos this conduct does not amount to unequivocal consent to the children remaining in New Zealand past the 2017 school year. His Honour stresses “matters were fluid for both parties at this point in time”, and no doubt, P was exploring options.38 Even for the relatively short period before the school year ended, the couple needed income, having lost their primary income stream following the investigation into P’s business. And it is not implausible a larger residence would be desired to accommodate them all (the mother and two children had joined the maternal grandparents and another daughter in a three-bedroom home).
[42] Ms Soljan contends the Judge erred by imposing a requirement of ‘permanence’ into the test for consent. That is a mischaracterisation. The point is reasonable inferences may be drawn from P’s conduct. Evidence of his permanent relocation to New Zealand might suffice to establish consent to the children’s subsequent retention (though acknowledging Fitzgerald J’s dicta “mere knowledge of
38 [P v S], above n 2, at [37].
relocation will not amount to consent”).39 But evidence of a temporary visit to explore permanent relocation does not suffice. Even less can it be characterised as P acquiescing in S’s ‘anticipatory breach’. The core issue remains whether P should be taken to have consented to S’s retention of the children in New Zealand after expiry of the period of their consensual removal.
[43] In any case, I also note S’s own evidence P was in two minds about whether he would come back to New Zealand. She deposes:
Yes, there were many arguments. While [P] was in New Zealand in September 2018, he was very undecided and continued to keep me in the dark. Some days he would change his mind and decide not to move to New Zealand and demanded that we return to Australia. This led to many arguments between us.
… mixed messages and relational strain
[44] S and P’s relationship came under increasing strain in the following weeks and months. At the same time, P’s already mixed messages became even more muddied and conflicted, undermining any clarity S might have derived from his previous conduct as to his intentions to return to New Zealand (or at least not to object to the children remaining here).
[45] S relies on her 3 November 2017 email to the Australian school advising them the children would not be returning to school for the start of 2018 as planned. She says this is evidence she believed – apparently reasonably, given P’s conduct – he was going to return to New Zealand. But such is undercut by S’s own evidence she had on that same day, or perhaps the day before, found an article online detailing the extent of the corruption in P’s business. In that context, her email was an expression of her perspective her relationship with P could not last.
[46] P visited New Zealand again on 18 November 2017. There was a conversation at the airport. P says S and her parents told him to return to Australia, and not to interfere with the children. The grandfather remembers him saying he was ‘here to stay’, and he would arrange movers to bring the family’s belongings to New Zealand.
39 H v R, above n 10, at [32].
Whichever account is believed, it is telling S candidly recounts they fought that night, including over P’s proposed Convention application.
[47] P returned to Australia on 19 November 2017, the day after S filed an application for care and protection orders in the Manukau Family Court.40 He objected to the application by protesting jurisdiction, strong evidence against any alleged consent to the children staying in New Zealand longer-term.
… six month extension?
[48] By the time of the parties’ text exchange on 26 November 2017, P had become quite emphatic he would not live in New Zealand permanently:
P: I am not migrating to NZ permanently. It’s only for now to be with the kids and hopefully work on our marriage.
S: How long is for now? So you coming for the kids?
P: OMG!! No for you and the kids … Look I don’t wanna get into this but Hague matters can take maybe 6 months.
S: Whatever
P: I want the kids back home in Australia. If you’re not gonna allow it then I have no choice but to go to Court
[49] P’s evidence was, between early October and mid-November 2017, he often called S in an effort to persuade her to return the children to Australia in December. She was unwilling. But his evidence is also he had conveyed to her he would file a Convention application after the school year ended on 15 December 2017. He says he had been advised he was ineligible to submit a Convention application until then, as he had consented to them staying in New Zealand up to that point. At its highest, it may be P was seriously considering moving to New Zealand while awaiting processing of his Convention application, a period he believed to be “maybe 6 months”.
[50] The Judge did not expressly consider this possibility. But it is supported by a range of evidence relied upon by S:
40 That matter, together with a domestic violence proceeding against P, has been allocated a fixture on 6 November 2018.
(a)around 21 November 2017, P sent a text saying he was “migrating to” New Zealand, a phrase more consistent with a longer stay;
(b)P arranged shipping to New Zealand. He obtained a quote for just over AUD $10,000 for the shipping of “household and personal effects” in a 1x40 foot container. The size of the container does not sit comfortably with the Judge’s finding he was merely arranging for personal items to be sent to New Zealand;
(c)on 29 December 2017, he rented out the family home in Perth for the period of a year until December 2018, and soon after rented out their investment property as well. These actions may simply represent, as the Judge found, “a prudent attempt to derive an income from those properties” during a period of financial strain.41 But they are also consistent with an intention to move to New Zealand, at least temporarily, given he no longer would have a place to reside in Australia (indeed, he only leased a new home in Perth in January 2018); and
(d)given the heat of the investigation into his business, P may have appreciated a respite by temporarily relocating to New Zealand (though it could not seriously be contended he thought any such relocation would be sufficient to avoid the consequences of his Australian activities).
[51] Still, such evidence may nonetheless fall short of the clear, cogent and unambiguous consent required to establish the defence. For as Mr Ashmore candidly accepts, P’s conduct was confused and erratic. S’s own evidence is:
[The older child’s] school year ended on 15 December 2017. But it was clear that matters had not settled in Perth. In fact, the situation was now much worse. By now, P had become totally irrational and I could not make any sense of what his plans were for us.
41 [P v S], above n 2, at [60].
[52] On 8 December 2017, the New Zealand Ministry of Justice notified P of S’s application for care and protection orders. His evidence is he realised at this point that even if he moved to New Zealand access to his children may be limited. Shortly after, on 11 December 2017, P sent S a text message: “[S]o are you really not coming back to Australia”. She replied: “I will just not next year”. This text evidences P’s ongoing hope S would return to Australia with the children. So P was at least equivocal in his desire to move to New Zealand, even temporarily.
[53] And in any respect, consent to such an extension (even if established on the evidence) would not equate with consent to the children being permanently retained in New Zealand. At most, P was agreeing to be with his children in the interim. P’s advice to S of his intended recourse to his Convention rights is not consistent with any maintenance of consent to her retention of the children in New Zealand (after expiry of the original period for their consensual removal from Australia). The defence is not made out in those circumstances.
Conclusion
[54]Ultimately, I agree with the Judge’s finding:42
… [P] has established the onus upon him under s 105 of the Act whereas [S] has not met the onus rested upon her to establish any of the defences or grounds found in s 106.
[55] It follows an order for return was properly made. In terms of the objects of the Convention, it restores the status quo, and prevents any advantage being obtained from the ‘abduction’.
[56] Given this result, it is unnecessary to consider my residual discretion, the third stage of the approach I outlined earlier. Accordingly, I am not required to consider lawyer for child’s submissions, which initially were motivated by S’s subsequently abandoned defence (on appeal only) grounded on the children’s supposed objection to being returned.43
42 [P v S], above n 2, at [71].
43 Care of Children Act 2004, s 106(1)(d).
[57] That defence essentially sought to advance considerations based on the best interests of the child, relating to P’s allegedly abusive conduct toward the family. However, I repeat the Judge’s reminder, aside from in exercise of my residual discretion (which is not relevant here), the legal test under ss 106-106 of the Act does not provide for such consideration. Allegations of abusive conduct will doubtless be considered in full by the Australian courts.44 This appeal has been concerned with the question of forum only.
[58]The appeal is dismissed.
Costs
[59] As the successful party, my preliminary view is P is entitled to costs on a 2B basis. If that is not accepted by either party, and costs cannot otherwise be agreed between them, costs are reserved for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by:
(a)P within ten working days of the date of this judgment;
(b)S within five working days of service of P’s memorandum; and
(c)P strictly in reply within five working days of service of S’s memorandum.
—Jagose J
44 S applied to adduce fresh evidence in this appeal, which was partially granted by Justice Duffy on 28 August 2018: [S v P] [2018] NZHC 2219. Her Honour allowed S’s affidavit evidence deposing to P’s allegedly abusive conduct towards the family; and domestic violence records obtained from the New Zealand Police of two incidents where P is said to have displayed argumentative and verbally aggressive behaviour in the presence of the children.
3
1