Application for return of children — habitual residence — onus of proof — Hague Convention on the Civil Aspects of International Child Abduction, art 3 — Care of Children Act 2004, ss 95, 97, 105 & 106 — Basingstoke v Groot [2007] NZFLR 363 (CA) — SK v KP [2005] 3 NZLR 590 — Punter v Secretary for Justice [2007] 1 NZLR 40. The applicant father sought the return of the parties' three children to South Africa. They moved to New Zealand in 2018 but shortly afterwards the parties' relationship ended bitterly. The applicant returned to South Africa, while the respondent mother remained in New Zealand. Under s 105 of the Care of Children Act (the Act), the father had to prove that the children were in New Zealand, they had been removed from South Africa in breach of his rights of custody, at the time of removal he was exercising those rights, and the children were habitually resident in South Africa immediately before their removal. The main issue was whether the father could prove that the children had been habitually resident in South Africa at the time he returned and the children were retained in New Zealand. The applicant submitted that the parties had an intention to emigrate from South Africa to New Zealand with the children, but that was provisional on them staying together as a family and conditional on the applicant father's work continuing. It was submitted that habitual residence in South Africa was not lost by a settled purpose of the parents and that the children were accordingly retained contrary to the applicant’s rights of custody when the respondent did not agree to their returning to South Africa with him. The respondent submitted that the parties had a settled purpose to emigrate to New Zealand without any conditions or it being provisional, and that the children lost their habitual residence in South Africa at the time that they left. Evidence of this included the sale of the applicant's two businesses, the entering into of a service agreement with the immigration professionals, the payment for the visas, the obtaining of jobs, the enrolment of the children at school and the sale of furniture. The Judge determined that the children did not have habitual residence in South Africa after they left to move to New Zealand. From that time their residence was in New Zealand with the intent to establish permanency and a settled life for them. Although the Judge found they had not yet established habitual residence in New Zealand their life here including residences, schooling and parenting was contrary to habitual residence in South Africa having continued. As the applicant could not prove that the children were habitually resident in South Africa at the time of the alleged retention, the grounds for an order for return pursuant to s 105 of the Act were not made out. Judgment Date: 11 July 2019. * * * Note: names have been changed to comply with legal requirements. * * *