Bernacki v Himona [2020] NZFC 3586

Published 22 October 2020

Application for return of child — habitual residence — intention to move — unlawful retention — acquiescence — Care of Children Act 2004, ss 95, 102, 105 & 106 — Secretary for Justice v HJ [2007] 2 NZLR 289; (2006) 27 FRNZ 213 (SC) — Punter v Secretary for Justice [2007] 1 NZLR 40; (2006) 25 FRNZ 327 (CA) — Basingstoke v Groot [2007] NZFLR 363, (2006) 26 FRNZ 707 (CA) — Secretary for Justice v SB (2006) 25 FRNZ 523, [2006] NZFLR 1027 (HC) — AHC v CAC FC Auckland FAM-2010-004-2326, 7 January 2011 — S v M [1999] NZFLR 337 — W v W (Child Abduction: Acquiescence) [1995] 2 FLR 211 — JHL v Secretary for Justice [2008] NZFLR 54 (HC) — TCG v RJP FC Porirua FAM-2010-091-977, 25 February 2011 — H (Minors) (Abduction: Acquiescence) [1998] AC 72 — Re A (Minors) (Abduction: Acquiescence) [1992] 2 WLR 536 — Hague Convention on the Civil Aspects of International Child Abduction, art 3. The applicant father sought an order for the return of the parties' child pursuant to s 105 of the Care of Children Act ("the Act"). The parties had met in Australia and their child was born there. They traveled to New Zealand for a holiday, at which point the mother requested to extend her stay in New Zealand with the child for two weeks so that they could visit a family member. The mother claimed that the father had agreed to an extension of two months but the father disputed this. After the father had returned to Australia, the mother informed him she was not returning to Australia with the child and that she intended to remain in New Zealand. Following legal advice, an application for return of the child under the Hague Convention was sought. To grant an order under s 105 a court must be satisfied, on the balance of probabilities, that each of the grounds in s 105(1)(a)-(d) have been established. Defences are available under s 106 and if one is established, a court can exercise its discretion and refuse to grant an order. The Court was satisfied that the grounds in s 105 were established. The Court rejected the respondent's argument that the child had become habitually resident in New Zealand during the visit; it would fly in the face of the Hague Convention and policy for a party to unilaterally change the child's habitual place of residence by wrongfully detaining the child. The respondent submitted as a defence that the father had acquiesced to the wrongful removal of the child. The Court also rejected this, as the actions of the father in seeking legal advice did not align with acquiescence of the child remaining in New Zealand. The defence was not established on the balance of probabilities. The Judge made an order for the return of the child to Australia. Judgment Date: 28 May 2020. * * * Note: names have been changed to comply with legal requirements. * * *