Secretary for Justice v SB (Retention: Habitual Residence) HC Christchurch Ap1/05

[2006] NZHC 1683

SUPPRESSION OF DETAILS CAPABLE OF LEADING TO IDENTIFICATION OF THE CHILD AND HIS PARENTS

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

AP 1/05

BETWEEN

SECRETARY FOR JUSTICE

Appellant

AND

SB (RETENTION : HABITUAL RESIDENCE)

Respondent

Hearing:         27 March 2006

Counsel:         I M Mitchell for Appellant

B J Alexander for Respondent Judgment:  12 April 2006

JUDGMENT OF PANCKHURST J

Introduction

[1]    This is a Hague Convention case.  B  was  born  on  [date]  2002. Accordingly he is aged 3 years 4 months. His mother, SB, whom  I will refer to  as S, is a New Zealander. His father, X, is English. However, he lives in

Tenerife, Spain and is represented by the Secretary for Justice in relation to this appeal.

[2]    Since August 2004 S and B have been resident in New Zealand. In April 2005, X invoked the Hague Convention and sought B’s return to

Tenerife so  that  issues  of  care  and  access  may be resolved there.    An order for B’s return was refused in the Family Court.  Although satisfied that S had wrongfully retained B in New Zealand, in breach of an arrangement to be here

for only a few months, the Family Court Judge found that B was no longer

SECRETARY FOR JUSTICE V SB (RETENTION : HABITUAL RESIDENCE) HC CHCH AP 1/05 [12 April 2006]

habitually resident in Spain by the time of the retention. Hence, jurisdiction to order his return to Spain was not established.

[3]    The appeal is against the Family Court findings as to retention and habitual residence.        I note that defences of acquiescence (that X acquiesced in the removal/retention) and of grave risk (that ordering B’s return would expose him

to physical or psychological harm, or place him in an intolerable situation) were also raised, but not resolved in the Family Court.

The facts in bare detail

[4]    S is aged 31 years and X 37 years. They met via the internet. In February 2002 S travelled to Tenerife. A short while later she fell pregnant.

[5]    In September 2002 she returned to New Zealand and B was born on [date] of that  year.  X came to New Zealand during the Christmas period   and met his son. He made a further trip to New Zealand in June 2003.

[6]    At the end of that month X, S and B travelled to Tenerife with the intention of living there as a family.

[7]About 13 months later, on 19 August 2004, S and B returned to

New Zealand. It was common ground between the parties that this was a visit which was to last for a few months, although there was some disagreement as to its duration. Then, in late September 2004 S advised X that their relationship

was  at  an  end   and  that  she   and  B  were  not  returning   to  Tenerife.     He acknowledged and seemingly accepted this in a birthday card which was sent at the end of November. However, on 29 December 2004 X advised S in an

email that at no time had he consented to B remaining in New Zealand beyond two months. X pointed out that his son was being wrongfully retained in New Zealand in breach of the arrangement  which the parties reached before S  and  B left Tenerife.

[8]On 18 April 2005 the application for B’s return to Tenerife was initiated.

The Family Court decision

[9]    The case was heard in the Family Court before Judge McMeeken on 7 July 2005. Such hearing was based on affidavit evidence, as is the usual practice.

[10]   At the conclusion of the hearing leave was given for further affidavits and submissions to be filed in relation to the positive defences asserted by S. These

were the issues of acquiescence and grave risk.

[11]   The further materials were not filed until early October and the reserved decision of the Judge was delivered on 15 November 2005.

[12]   The decision recorded that three matters required consideration. The first  was whether B was habitually resident in Tenerife, Spain, immediately prior to

his wrongful retention in New Zealand. Such a finding was a prerequisite pursuant  to s105(1)(d) of the Care of Children Act 2004 (the Act) for the making of an order for return.

[13]   The second and third issues were whether the grounds for refusal of an order, based on consent/acquiescence to the retention (s106(1)(b)(ii)) or an account of grave risk from return (s106(1)(c)), were made out.

[14]   The Judge made a number of findings based upon the affidavits. She considered that X and S barely knew each other at the time B was

conceived.  With reference to the return to Tenerife at the end of June 2003, when   B was almost seven months old, the Judge was satisfied that the joint intention

of the parties was to see if they could achieve a satisfactory relationship. However, this did not eventuate. The mother and father came from different cultures and were living in a third culture, with the result that their relationship was not easy.

[15]With reference to B’s habitual residence, the Judge was satisfied this

was initially in New Zealand, but that it changed to Spain after he had been living in Tenerife for some months.

[16]When S and B left Tenerife and travelled to New Zealand in

August 2004 the Judge considered that she “may not have been totally open” with   X as to her intentions. X probably understood that the  trip  was  “just  for  a holiday”, albeit he only provided 50 Euros by way of financial support when S departed.

[17]   Judge McMeeken found support for the inference that S  had  not  been totally open with X in the  circumstance  that  on  22  September  2004  she  indicated that the relationship was over. This text message followed a telephone conversation the previous day in which S first revealed her views.

[18]About a month later X sent a birthday card (in anticipation of S’s

birthday on 6 December) in which he expressed his feelings for her, but accepted that they were not reciprocated. The Judge considered this to be an acceptance of  S’s decision to remain in New Zealand.

[19]Moreover, the Judge found that:

[29]     By the end of November therefore, the mother was “back home” in Christchurch, New Zealand with B and was not  going  to  return  to Tenerife.      The  father  had  been  told  that  and accepted it.  At that point B’s place of habitual residence changed. It changed because physically

he was in New Zealand and it was the intention of the parent who provided his day to day care that he remain living there. The other parent knowing that, agreed, or accepted it. That parent did not financially support B in

any way. B was therefore back living in the city of his  birth  with  his mother and in a place where many of his maternal relatives lived. In such circumstances a new habitual residence can be acquired reasonably quickly.

[20]   However, on 29 December 2004 (after there had been a disagreement concerning telephone contact between father and son on Christmas Day), X “changed his mind and advised S  by  email  that  he  considered  she  had “removed” (B) from Tenerife in breach of his rights of custody.”       By then, however, the Judge was satisfied that  B’s  place  of  habitual  residence  had changed  to New Zealand.  It followed that the habitual residence requirement in s105(1)(d) was not met and that an order for return was not available.

[21]   In these circumstances the application was dismissed without consideration of the s106 defences.

[22]   Ms Mitchell, as counsel for the Central Authority acting on behalf of X, challenged the decision as it pertained to jurisdiction on two grounds:

[a]whether the wrongful retention of B occurred in September 2004 (when S advised that she was not returning to Tenerife), or only at some later date, and

[b]whether B’s  place  of  habitual  residence  had  changed  to New Zealand as at the date of wrongful retention, whenever that might be.

The primary argument advanced on X’s behalf was that the wrongful retention occurred in September, when S and B had only been in New Zealand for a

little over a month, and when B’s place of habitual residence remained Tenerife, Spain.

The statutory provisions

[23]Subsections (1) and (2) of s105 of the Act are relevant:

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.

[24]   Section 106(1), which is headed Grounds for refusal of order for return of child, provides that the Court may refuse to make an order for the return of the child if any person who opposes return establishes to the Court’s satisfaction:

(b)that the person by whom or on whose behalf the application is made –

………………

(ii) consented to, or later acquiesced in, the removal; or

(c)that there is a grave risk that the child’s return -

(i)would expose the child to physical or psychological harm; or

(ii)would otherwise place the child in an intolerable situation.

Although these two grounds for refusal  of  an  order  were  invoked  by  S,  the Judge did not consider it necessary to consider them once she had found that the jurisdictional requirement of habitual residence was absent.

[25]   As can be seen from s105(1) the four cumulative requirements are interrelated. The child must be present in New Zealand, there must have been a removal from a Contracting State, the absent parent must have been actually exercising rights of custody at that time, and the child must remain habitually resident in the other country “immediately before the removal”. It is accepted that removal and wrongful retention are opposite sides of the same coin. They have always been recognised as such in Article 3 of the Convention on the Civil Aspects of International Child Abduction (The Hague Convention), which is reproduced as Schedule I to the New Zealand Act. Article 3 commences:

The removal or the retention of a child is to be considered wrongful where
…

it is in breach of rights of custody actually being exercised by another in the State in which the child was previously habitually resident.

[26]   For completeness I note that appeals to the High Court are pursuant to s143 of the Act, whereby a general right of appeal is conferred in relation to a decision refusing to make an order, or to dismiss a proceeding or to otherwise finally determine a proceeding (s143(1)(a), (b) and (c)). The proper approach to appeals from decisions of the Family Court is discussed in Swayne v Lush [1999] NZFLR 49 (HC).

Which comes first : wrongful retention or habitual residence?

[27]   On reading s105(1) I inclined to the view that the first inquiry was when did the wrongful retention occur. Having determined that question it seemed that attention should then turn to the question of habitual residence as at the particular date.

[28]   However, in Punter v Secretary for Justice [2004] 2 NZLR 28 (CA), a case concerning retention and habitual residence, Blanchard J at para [28] said:

If the children were not habitually resident in Australia any retention of them in New Zealand by Mrs Punter could not have been contrary to the convention, notwithstanding that it may have been a breach of the agreement between the parents … . The issue over habitual residence is therefore the logically prior question.

Glazebrook J subscribed to this view at para [62] of the decision.

[29]   Interestingly, William Young J perhaps articulated a different viewpoint in SK v KP (Habitual Residence) [2005] 3 NZLR 590 (CA). There a New Zealand mother returned to New Zealand with one child, while she was pregnant with her second, and subsequently decided not to return to the United States. The American father invoked the convention. At para [106] William Young J said:

In the High Court, counsel agreed that the time when S was first wrongfully retained in New Zealand was September 2002. This approach uncoupled the actions (and state of mind) of Ms KP which amounted to wrongful retention from the factual context which justified the conclusion that S had lost his habitual residence in the United States. As will become apparent, I think  that this was artificial and counter to the policies which the Hague Convention is intended to promote.

At a later point the Judge referred to the “logical correlation and necessary overlap” between the facts relevant to both retention and habitual residence (para [112]).

[30]   This followed immediately after a discussion concerning the extent to which the mother’s state of mind (intentions) influenced the habitual residence of a young child on the one hand, and the problems (both factual and legal) facing the father as a result of the mother’s actions on the other. The Judge observed that if the father was insistent in demanding a return to the United States at an early stage, he risked

crystallising an irretrievable breakdown in the relationship. But, any delay in his bringing matters to a head improved the prospects of the mother resisting a Hague Convention application.

[31]   I agree with the view that retention and habitual residence are related issues which necessarily overlap. A decision not to return to the place of previous residence, and a resolve to stay in the new place of residence, are self-evidently interrelated issues.

[32]   That said, s105(1)(d) poses as the fourth prerequisite of an order for return that the “child was habitually resident in that other Contracting State immediately before the removal”, or retention. Hence, at the end of the day an evaluation is required as to the child’s habitual residence at an identifiable point of time. The better view may be that there is no logically prior question and that it is more important to remain alert to the interrelationship and overlap between these two issues.

[33]   In this instance, and because counsel addressed the question of retention as the essential issue in the case, I will consider it first.

When was the wrongful retention in New Zealand?

[34]   In support of the appeal Ms Mitchell argued that the retention occurred at an early point, specifically when S advised X in a telephone conversation and

by a text message on 22 September 2004 that the relationship was over and she had no intention of returning to Tenerife. Mrs Alexander, however, contended that the retention occurred on or about 29 December 2004, when X conveyed to S

that he did not consent to B remaining in New Zealand.

[35]   Judge McMeeken did not expressly find a date upon which the retention occurred. Having concluded that by the end of November the mother was settled back home in Christchurch  and  that  B’s  habitual  residence  changed  at  that point, she then referred to X’s change of heart on 29 December 2004. This was characterised as too late to allow an order for B to be returned to Spain because

of the earlier change in habitual residence. The implication to be taken from this process of reasoning is that the Judge placed the retention in late December, rather than some months earlier.

The concept of removal or retention

[36]   It is well-established that the date of removal or retention is not a continuing state of affairs, but rather an event occurring on a specific occasion. This was decided by the House of Lords in Re H (Minors) (Abduction: Custody Rights) [1991] 2 A.C. 476. The need for a specific point in time was seen to necessarily follow from Article 12, which requires that a return application is brought within one year of the wrongful removal or retention. If it is not, and in the meantime settlement of the child has occurred in the new country, a return order will not ordinarily be made.

[37]   In Re AZ (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682 Sir Michael Kerr expressed doubt as to the correctness of a finding that the mother’s unilateral decision not to return the child constituted wrongful retention. He preferred the view that the retention occurred when the mother applied to a court for ex parte orders relating to the child. The earlier uncommunicated intention to retain the child was viewed as something from which the mother could well resile and, therefore, as insufficient to found a wrongful retention.

[38]   However, in Re S (Minors) (Child Abduction: Wrongful Retention) [1994] Fam. 70 Wall J accepted that a mother’s decision (not to return), even if not communicated to the father, was capable of constituting an act of wrongful retention. This finding is described as “startling” by Beaumont and McEleavy in their text The Hague Convention on International Child Abduction (1998) (at p 41) because it threatened certainty and had the potential to penalise the other parent, because the 12 month limitation period would commence to run before he or she was aware of the retention.

[39]   The leading decision in New Zealand on retention is Punter v Secretary for Justice. This, however, was a shuttle custody case, where the parents had entered into an informal arrangement for their two children to spend two years in New

Zealand, followed by two years in Australia, and so on. The New Zealand mother brought the children to New Zealand and about five months later applied to the Family Court for a custody order. A supporting affidavit confirmed that she did not intend to honour the shuttle agreement. The return of the children to Australia was ordered in the Family Court and upheld in the High Court. However, the majority in the Court of Appeal disagreed as to the date of the wrongful retention arrived at in the Family and High Courts and for this reason remitted the case back to the Family Court for reconsideration. Whereas the custody application had previously been viewed as giving rise to the wrongful retention, Blanchard and Glazebrook JJ considered that there was no actual retention, at least until the Family Court assumed jurisdiction and made a custody order in favour of the mother or, alternatively, the two year period (under the shuttle arrangement) elapsed.

[40] Blanchard J, who delivered the leading decision in relation to retention, reasoned that a violation of the informal arrangement between the parents was not enough, that it was essential there be an actual retention as opposed to an anticipatory retention of the children. By contrast, Gault P considered that, in making the custody application, the mother had plainly repudiated the father’s agreed right of custody. It followed in his view that to find retention only at the expiry of the two year shuttle period would be to “allow (the) mother to both rely on and repudiate the agreement” : para [5]. This he would not countenance.

[41]   The case is not directly in point, because the present is not a shuttle custody case. Nonetheless, Mrs Alexander sought to rely upon it.  Her argument was based on the view of the majority in Punter that, where there was a defined arrangement by which one parent had the care of children in their home country, there could be no anticipatory breach of that arrangement. Wrongful retention occurred only when the agreed period of care ended (or upon the obtaining of a custody order).           Here, counsel contended, B was brought to New Zealand by his mother with X’s agreement that they would remain here for a period of a few months. Consistent  with this arrangement X raised no objection to B’s non-return to Tenerife,

until late December. Therefore, the wrongful retention occurred at that point, not when S advised X in 22 September that she would not be returning.

Is an unequivocal statement of intent enough?

[42]   This question, it seems to me, encapsulates the essential difference between the  two  arguments.                   The  appellant  contends  that  when  S  told  X  in  September that the relationship was at an end and she had no intention of returning  to  Tenerife,  the  fact  of  wrongful  retention  was  established.  This was not an uncommunicated subjective change of heart. To the contrary, S told X in

person that she no longer intended to honour the agreement to spend only a few months in New Zealand before returning to Tenerife. Having repudiated the agreement, she could no longer claim the benefit of it. The fact of  wrongful retention was thereby established.

[43]   The contrary argument was to the effect that until it was “clear that (X) was not consenting to B’s remaining in New Zealand and the agreed stay was at

an  end”,  there  was  no wrongful  retention. Hence, Mrs Alexander adopted the majority reasoning in Punter and also closely reviewed the evidence of events between  September  and December 2004.  X’s affidavit evidence was  to  the effect that after S advised him of her intentions in September, “from that day

on (he) talked to S in order to  try  and  resolve  the  situation  between  us”. Attention was also drawn to a birthday card which was sent  to  B  in  late November, on the envelope to which was written “I’ll bring your present with me”, being a clear indication that X still intended  at  that  point  to  come  to  New Zealand in furtherance of his aim to save the relationship.

[44]   Then, in anticipation of S’s birthday  on  6  December,  X  sent  a further card in which he spoke of his affection for S, but also recognised “that

love has to come from both sides”. At Christmas time 2004 there was telephone contact, culminating in disagreement and a refusal to allow X to speak to

B. On 29 December X sent an email which included this:

“You have to realise that you have taken our son B away from his father

and his family home, here in Tenerife, where we were all living, on an agreed holiday to visit your family for two months only. Now you say your (sic) not coming back and our relationship is over. S  you  have  to appreciate I never consented to our son being in New Zealand for longer than the agreed two months. You are not only depriving your son of his

father, you are also depriving me of my rights as a father of full access to our son, just by being in New Zealand … .

Mrs Alexander submitted this was the communication which established that the agreed period in New Zealand was at an end, and that X would no longer allow

the separation of father and son to continue.

[45]   This focus upon X’s position in the period September – December 2004 illustrates what William Young J referred to as the “difficult position” of the left behind  parent  in these cases.           Told of S’s intentions  in  September,  but  still intent on saving the relationship, he did not bring matters to a head. Thereby, the chance of a reconciliation was preserved, but at the same time the risk of a change in B’s habitual residence was run.

[46]   The competing arguments raise a number of issues. Did what S said to X in September 2004 give rise to a wrongful retention of B? Or, given the

reasoning of the majority in Punter, did at least the agreed period of the visit to New Zealand have to first expire? And, closely related to the first question, was X’s dissent to B’s remaining in New Zealand necessary to establishing wrongful retention?

[47]   In my view the communication from S to X in September that the relationship was over and that she had no intention  of  returning  with  B  to Tenerife,  in  itself  constituted  a wrongful retention.                  While this was a unilateral statement of intent, it was communicated directly to the other party. Seriousness of intent was, I think, demonstrated. That may be a factual question which will vary from  case to case.  Here there were a range of  factors  which  pointed  to  S having formed a final view.  Her roots were in New Zealand, where B was also  born.  The time spent in Tenerife was in an endeavour to see whether a family relationship could be maintained. S returned to New Zealand, purportedly for a

short   visit,   but   without   a return  ticket.     Only about five weeks later she communicated to X her views about the relationship and Tenerife.

[48]   Moreover, in terms of the English authorities to which I have referred this communication amounted to a defined event, known to the other party, and was

therefore apt to be used as the starting-point for the 12 month limitation period. Subject, therefore, to considering the remaining two issues, I consider there was a wrongful retention as at about 22 September.

[49]   Does the decision in Punter affect this preliminary view? Blanchard J considered that a retention in the context of a shuttle custody arrangement was necessarily anticipatory, until the child or children were retained beyond the date of the agreement. Gault P disagreed. He considered that the mother could not have the best of both worlds, repudiation of the agreement and the benefit of its currency. Glazebrook J adopted the reasoning of Blanchard J in relation to retention (without comment upon Gault P’s dissent). Her own judgment was directed to the question of habitual residence, with retention dealt with in a few lines.

[50]   Cases from other jurisdictions, some of which are referred to in the judgment in Punter, demonstrate support for both viewpoints. In the end I do not consider that Punter is directly in point. This is not a shuttle custody case, although it does  involve an agreement to remove a child to New Zealand for a period of disputed duration. If need be I would adopt and follow the reasoning of Gault P, but I doubt that it is necessary to go that far.

[51]   If the Family Court Judge intended to convey that the wrongful retention only occurred when X dissented on 28 December 2004, as seems to be the case, I respectfully disagree. Wrongful retention ordinarily arises from the actions of one party, in that their conduct externally confirms a decision and resolve to retain the child or children in breach of the other’s rights. Perhaps, there may be cases where the point of dissent represents the time of retention. That would depend upon the nature of any earlier statements by the other party concerning his or her unwillingness to return to the previous place of residence. If such statements were equivocal, such that it was only at the point of dissent by the left behind parent that the fact of non-return crystallised, then the dissent may be central to the retention.

But I do not regard this case as in that category. S expressed her views in a very forthright manner. There was nothing equivocal as to her future intention.

[52]X’s reaction, in particular whether he acquiesced in the retention over

the next three months, may be a live issue which still awaits determination. But, at least in the circumstances of this case I am satisfied that the wrongful retention was complete as at 22 September 2004.

B’s habitual residence immediately before the retention

[53]   In large measure counsel did not challenge Judge McMeeken’s findings as to habitual residence. She  held  that  B  was  habitually  resident  in  New  Zealand until he and his mother went to Tenerife in mid 2003. A few months into that 13 month stay B’s habitual residence changed to Spain. Finally, the  Judge  was satisfied that B reverted to his New Zealand habitual residence by about the end

of November 2004. Her reasons for this conclusion were contained in para [29] of the decision (see my para [19]).

[54]   These findings supplied the context for the essential dispute as to when the wrongful retention occurred. As noted earlier, counsel argued for retention dates which fell either side of the change back to a New Zealand habitual residence in late November. On this basis the habitual residence findings were not the subject of direct challenge.

[55]   Nonetheless, I shall briefly consider the concept of habitual residence and review the conclusions of Judge McMeeken, particularly since I have differed from her with reference to the date of wrongful retention.

[56]   The leading New Zealand case on habitual residence is the judgment of Glazebrook J in Punter v Secretary for Justice. In a very comprehensive discussion on the topic the Judge referred to the relevant principles, the criticisms of some of them and set out her own views. The starting-point is that habitual residence is a central concept within the Hague Convention. It is to the jurisdiction of the place of habitual residence that a child is returned in order for parenting and relating orders to be made.

[57]   Lord Brandon in Re J (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562 (HL) articulated the settled purpose test of habitual residence at 578-9:

In considering this issue it seems to me to be helpful to deal first with a number of preliminary points. The first point is that the expression ‘habitually resident’, as used in article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by  reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time  the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.

[58]   But a settled purpose or intention does not contemplate residence in a place forever. There can be a settled intention to reside in a given place for even a limited time. In such cases, where the intention is to be ordinarily resident in a place (as opposed to on holiday, or there for some other lesser defined purpose), that will be enough.

[59]   Where the child or children are young, the settled purpose of the parents will be determinative of habitual residence. And where the parents are apart, it is the parent who has day to day care of the child or children whose intention is most relevant. However, the unilateral intent of that parent cannot, without more, determine the habitual residence of the child or children. Otherwise, an essential policy of the Hague Convention, to deter international abductions, would be frustrated. A settled intention is something different from the subjective view of a parent as to the jurisdiction in which the child should be regarded as habitually resident. Such a subjective view is not relevant, whereas a settled intention as to the place of residence is.

[60]   In ascertaining the purpose or intention of the parents or parent it is necessary to also look at the objective manifestations of such purpose. That is, the objective

evidence (permanent housing and other ties to the community) that tends to confirm a settled intention to reside in a particular place.

[61]   Although Lord Brandon spoke of the need for an appreciable period of time in the relevant place, together with a settled intention to be there, as dual requirements, what is appreciable is necessarily flexible. For  example, where there is clear evidence of an intention to emigrate to a new country, a comparatively short period of residence there may suffice. By contrast where one parent has taken a  child or children to another country and asserts a settled intention to remain there, a much more significant period will be necessary to satisfy the appreciable period of time requirement.

[62]Finally, Glazebrook J ended the discussion in Punter on this note:

[86]  In my view, the differences in approach set out above emphasise that the inquiry is a factual one. Any principles therefore cannot be applied rigidly. While the weight of authority would require both a settled purpose (that of the parents where young children are involved) and actual residence, a long period of actual residence may in some cases suffice where there is no such settled purpose or an equivocal one. What suffices for an appreciable period of actual residence will also depend on the circumstances. It may, for example, take a longer period of actual residence to acquire an habitual residence in a country which has an unfamiliar culture and language than it would in one where a child has resided before or where the culture and language are familiar. A very strong settled purpose may require  less time  of actual residence in either case. It may take longer for a child to acquire an habitual residence if the parents are separated and a child moves to be with a parent who has not to date been the main custodial parent than if the child moves with both parents or with the custodial parent where, depending on the circumstances, the time to acquire an habitual residence may be relatively short.

[63]   Did Judge McMeeken adopt a correct approach to habitual residence? I do not consider that there is anything in the decision under appeal to indicate that the approach of the Judge was wrong in principle.  Neither counsel suggested as much.  It is apparent from the terms of the decision that the Judge was alive to the fact that in moving to Tenerife, S and B were endeavouring to adjust to a new

country and culture, and that, equally, when S returned to New Zealand with   B, that her self-professed settled intention as the parent having day to day care

to remain here, was not to be unquestioningly accepted. Hence, the Judge had regard to the objective evidence of actual settlement back in Christchurch, and concluded

that about three months represented an appreciable period of time during which objective evidence of settlement had emerged.

[64]   For these reasons I am satisfied that the findings as to habitual residence were open on the evidence and should not be disturbed on appeal. I am also conscious  that they are findings of a specialist court in relation to matters where Family Court Judges enjoy the advantage of greater exposure to such issues, an advantage which Judges of this court cannot match.

Disposition of the appeal

[65]   In light of my conclusion as to wrongful retention, and applying the conclusions of Judge McMeeken as to habitual residence, I find that B was habitually resident in Spain immediately before the wrongful retention. Accordingly the appeal is allowed to the extent that I hold the requirements of s105(1) are satisfied.     It follows that an order for B’s return must be  made  in  terms  of s105(2), unless grounds for refusal of the order are established under s106.

[66]   It is unfortunate that the learned Judge did not go on to consider the grounds relied upon for refusal of an order, namely acquiescence and grave risk. Initially, counsel contemplated that it may be appropriate for me to do so. I do not share that view. To the contrary, I think it would be wrong of me to consider these aspects effectively de novo. Regrettably, the only course is to remit the case back to the Family Court so that the grounds for refusal of an order may be considered.

Solicitors:

Cunningham Taylor, Christchurch for Appellant

B Alexander Barrister, Christchurch for Respondent