S v P [2018] NZHC 2645

S v P [2018] NZHC 2645

The High Court held the s105 threshold was satisfied and that the respondent did not, on the balance of probabilities, give clear, cogent and unequivocal consent or later acquiescence to the children being retained in New Zealand beyond the agreed temporary period (end of 2017 school year); therefore the Family Court's order for return was upheld.

Citation
[2018] NZHC 2645
Parties
Appellant (mother): S; Respondent (father): P; Children Lawyer for Child: Children (represented)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 October 2018
Procedural Posture
Care of Children Act 2004 Hague Convention Return Application / Appeal to High Court From Family Court Decision Ordering Return of Children
Outcome
Appeal dismissed; Family Court order for prompt return of the two children to Australia upheld
Legal Topics
Return of Children Under S105, Consent and Acquiescence Defence Under S106, Habitual Residence, Burden and Standard of Proof, Residual Discretion
Family Law International Child Abduction Hague Convention Implementation Civil Procedure Appeal Return of Children Under S105 Consent and Acquiescence Defence Under S106 Habitual Residence Burden and Standard of Proof +1 more

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Parties

S

Appellant (mother)

P

Respondent (father)

Children (represented)

Children Lawyer for Child

Procedural Posture

Care of Children Act 2004 Hague Convention Return Application / Appeal to High Court From Family Court Decision Ordering Return of Children

Legal Issues

  1. 1 Whether the applicant established s105 threshold for return
  2. 2 Whether the respondent consented to or later acquiesced in the children's retention in New Zealand
  3. 3 Whether conduct prior to retention could amount to unequivocal consent or anticipatory acquiescence

Ratio Decidendi

The High Court held the s105 threshold was satisfied and that the respondent did not, on the balance of probabilities, give clear, cogent and unequivocal consent or later acquiescence to the children being retained in New Zealand beyond the agreed temporary period (end of 2017 school year); therefore the Family Court's order for return was upheld.

Court Disposition

Appeal dismissed; Family Court order for prompt return of the two children to Australia upheld

Orders

  • Order that the two children be returned promptly to Australia pursuant to s105 of the Care of Children Act 2004
  • Costs preliminarily awarded to respondent on a 2B scale; if disputed costs reserved and to be determined on short memoranda with specified filing timetable (P within 10 working days; S 5 working days in reply; P 5 working days reply)