McCulloch v Butler [2019] NZFC 9991

Published 22 June 2020

Application for return of child — habitual residence — intention to move — unlawful retention — Care of Children Act 2004, ss 95, 97, 105 & 106 — Hague Convention on the Civil Aspects of International Child Abduction 1980 — P v Secretary for Justice (Court of Appeal, CA 221/05, 29 June 2006) — Punter v Secretary for Justice [2004] 2 NZLR 28 (CA) — SK v KP [2005] 3 NZLR 590 — Punter v Secretary for Justice [2007] 1 NZLR 40 — Basingstoke v Groot [2007] NZFLR 363 — Secretary for Justice v S B [2006] NZFLR 1027, 25 FRNZ 523 — Re A (Abduction: habitual residence) [1998] 1 FLR 479. The applicant father sought the return of the parties' child to Scotland, the country of her birth. The parties had travelled with the child to New Zealand so the respondent mother could get permanent residence here. Shortly after they arrived the relationship broke down. Under the Care of Children Act (the Act), which codified the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), an application for return will be successful if it can be shown that: (a) the child is in New Zealand; (b) the child was removed or retained from another Contracting State in breach of an applicant’s rights of custody; (c) at the time of removal or retention those rights were being exercised (or would have been but for the removal); and (d) the child was habitually resident in the Contracting State immediately before removal or retention. There was no dispute that grounds (a) to (c) were successfully proven. The respondent mother argued that the child was habitually resident in New Zealand as the parties had agreed to emigrate here. The onus was on the father to show the child was habitually resident in Scotland. In support of the father was that he had a company he ran back in Scotland, as well as a family business in which he had a 50 per cent share and was a necessary part of its functioning. There had been no efforts to restructure the businesses so they could carry on without him and no financial arrangements made supporting a permanent move to a different continent. There was no reference to the parties emigrating to New Zealand, other than once by the mother after they had arrived. The parties appeared to have broken up a week before their arrival and their relationship had been in trouble for a while. There were also no efforts made for the father or the child to obtain residency. It was clear there was no intention to emigrate and become habitually resident in New Zealand. As all of the grounds under s 105 were made out (and no defence established under s 106), the Judge was required to make an order for return of the child to Scotland. Judgment Date: 5 December 2019. * * * Note: names have been changed to comply with legal requirements. * * *