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Owens v Hamilton [2020] NZFC 7097

Published 16 March 2021

Application for return of child — relocation — habitual residence — acquiescence — "grave risk" — Care of Children Act 2004, ss 95, 105 & 106 — Hague Convention — Basingstoke v Groot [2006] NZFLR 363 — SK vs KP [2005] 3 NZLR 590 —Langdon v Wyler [2017] NZHC 2535 — L v Secretary for Justice (2007) 27 FRNZ 645 — Runge v Levine [2017] NZFC 1017 — SK vs KP [2005] 3 NZLR 590 — RAC v ABC [2012] NZFC 2688 — Greeve v Jenkin [2016] NZFC 7265 — A v Central Authority for New Zealand [1996] 2 NZLR 517 — A v A (1996) 14 FRNZ 348 (CA) — LRR v COL [2020] NZCA 209. This was an application by the father for an order for the return of the parties' child to Australia. The parties lived in Australia and had been married for three years and had a four year old child together. They had flown together to New Zealand to attend the wedding of the respondent mother's sibling. The mother suffered an injury and on agreement of the parties, stayed in New Zealand with the child for longer than initially planned. Just over a month later the respondent sent a letter to the applicant ending their relationship. The father subsequently filed the application for the order. At issue was whether the child's habitual residence had changed to New Zealand; whether there had been acquiescence on the part of the father for the child to remain in New Zealand; and, whether there was a "grave risk" of harm if the child were to be returned to Australia. The mother claimed that the child's habitual residence had changed from Australia to New Zealand when they flew there; the father claimed that it remained at all times Australia as the trip to New Zealand had merely been a visit. The child had been born and raised in Australia and, at the time of going to New Zealand, there was no settled agreement to relocate to New Zealand. The child's habitual place of residence was Australia. As to the issue of whether the father had acquiesced, the Judge found that he had not, because of the lack of agreement to relocate or for the child to remain in New Zealand indefinitely. The parties had discussed relocating to New Zealand but had not reached an agreement on this. The final exception to an order for the return of a child is if there is a grave risk of harm to the child. The respondent mother submitted that the father had a drinking problem, had not taken much interest in raising the child and had at times smacked the child. Counsel for the applicant submitted this did not meet the high threshold for grave risk, as there was no evidence of child protection agency involvement, of family violence incidents reported to the police or of protection orders sought. The Judge agreed on the evidence that there was no grave risk of harm to the child if she were to be returned to Australia. The Judge made an order accordingly. Judgment Date: 20 August 2020. * * * Note: names have been changed to comply with legal requirements. * * *