JB v LN [2014] NZHC 1308 (11 June 2014)

Last Updated: 4 July 2014

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2014-442-026 [2014] NZHC 1308

IN THE MATTER OF	an appeal against a decision of the Family Court
UNDER	sections 94-124 of the Care of Children Act 2004
BETWEEN	JB Appellant
AND	LN Respondent

Hearing:	20 May 2014
Appearances:	D J Ballantyne for the appellant G P Barkle for the respondent S E Gracia for the child
Judgment:	11 June 2014

_{JUDGMENT OF CLIFFORD J}

[1] The appellant, JB, and the respondent, LN, are the parents of WN, aged 16 months.

[2] WN was born on 9 January 2013 when his parents were living together in

Brisbane. JB and LN were still living together, with WN, in Brisbane when JB

_{brought WN to New Zealand on 18 November 2013.}

JB v LN [2014] NZHC 1308 [11 June 2014]

[3] This is an appeal against a Hague Convention decision made by Judge Russell in the Family Court at Nelson, on the application of the Central Authority in New Zealand for LN, ordering that WN be returned to Australia.¹

[4] JB bases her appeal on the proposition that the Judge was wrong to find that

WN was habitually resident in Australia when she removed him to New Zealand.

Facts

[5] Whilst JB and LN have opposing views on the implication of the essential facts of this matter, and in particular on whether they had a settled and shared intention to return to New Zealand together to bring WN up, those essential – and undisputed – facts can, perhaps reflecting WN’s young age, be summarised relatively simply.

[6] JB and LN both grew up in New Zealand. They attended High School together in the mid 1990s. JB describes how they used to see each other on and off for a few months when they were about 14 or 15 years old. There was nothing serious, but they did know each other.

[7] In December 2011 JB travelled to Australia for an approximately six month working holiday. She first stayed in rural New South Wales, before moving to Queensland in mid to late April 2012 to stay with her half-sister, her half-sister’s husband and their children.

[8] LN had lived in Australia since, approximately, 2002. In April and May 2012 he was between jobs: he had just finished a job with a construction company which he had had for seven years and was in the process of commencing a new, full-time, position with an electrical business in Brisbane.

[9] Whilst JB was staying in Queensland, LN contacted her on Facebook.

[10] In early May, JB and LN arranged for him to drive up to visit JB. They spent the next few days together reminiscing. At that point, JB describes she and LN being

¹ [LN] v [JB] [2014] NZFC 2711.

“old flames”. They talked about JB moving to Brisbane to see if she could get work and start a relationship with LN. JB agreed to “give it a try and see”.

[11] They moved to Brisbane together at the end of May 2012 to live with LN’s

mother.

[12] In mid June 2012, after they had been staying with LN’s mother for about a month, JB found out that she was six weeks’ pregnant. Sometime later, JB and LN moved out of his mother’s house, staying briefly with friends before moving in with LN’s auntie and her partner in a Brisbane suburb.

[13] JB had a 22 week pregnancy check up in late September 2012. She was, at that point, diagnosed with vasa previa. Vasa previa is a very rare, and dangerous, condition thought to occur in about one in 2,000–3,000 pregnancies. Vasa previa is an abnormality of the development of blood vessels in the uterus. The umbilical cord of the developing baby does not insert into the placenta and when undiagnosed the risk of haemorrhaging at birth, fatal to the baby, is high. Unless an immediate Caesarean section is done under general anaesthetic the baby will likely die or

survive with brain and/or kidney injury.²

[14] JB’s specialist obstetric advice was, at that point, that she should not travel, work or do physical exercise or have sex because of the risk of rupturing blood vessels on the top of her cervix and causing internal bleeding. She was also told, consistently with the material referred to above, that it was unlikely she would go to full term and that she would need a Caesarean section.

[15] In November 2012 JB and LN moved, with a flatmate, into rented accommodation in a seaside suburb east of Brisbane, not far from where they had previously stayed with LN’s auntie.

[16] On 8 January 2013, when JB was 32 weeks pregnant, she suffered bleeding, spent the night in the local hospital and was the next day transferred to Mater

_{Mother’s Hospital in central Brisbane where an emergency Caesarean section was}

² Webster’s New world Medical Dictionary (3^rd ed, Wiley Publishing Inc, New Jersey, 2008) at

446.

performed. It is not clear how long JB stayed in hospital: but WN, who was – I infer

– lucky to survive, was not released from hospital until 14 February 2013, 37 days after his birth.

[17] JB and LN, together with WN, continued to live together in their flat, the lease of which had expired in May.

[18] JB returned to New Zealand to visit her family in August and September of

2013, accompanied by WN but not by LN.

[19] JB and WN returned to Australia sometime in September 2013.

[20] On 1 October, JB and LN, together with their flatmate, renewed that lease for a six month period. That lease agreement records that WN, by that stage eight months old, was a person also authorised to reside on the premises.

[21] By this stage there were clearly problems in the relationship. In August 2013, JB had visited a local community legal service to obtain advice relating to issues of domestic violence. She was advised, at that point, if she left the country she was well within her rights to do so.

[22] Sometime after her return to Australia in September, JB went to a local police station following an incident when, she said, LN had verbally abused her. Her evidence was that she was told she need not stay with LN and needed to get out of her situation with him to somewhere where she was safe. Shortly after that JB spoke with her mother in New Zealand and arranged to fly home the following day, 18

November 2013.

[23] On 20 November JB obtained a without notice protection order from the New

Zealand Family Court against LN.

[24] On 31 January 2014 LN’s application under the Hague Convention for the return of WN to Australia was filed by the Central Authority.

[25] That application was served on JB on 3 February 2014; on 17 February she filed her notice of defence and the next day timetable orders were made by the Family Court for the hearing of the return application on 4 April 2014.

[26] By the time LN’s application was heard on 4 April 2014, the New Zealand

Family Court proceedings had not been resolved. That remained the position on 8

May when, following the issue of his judgment, Judge Russell considered issues relating to the timetable for WN’s return to Australia. JB’s opposed application for a final protection order was heard that day. The Family Court is yet to release its decision on that application.

The challenged Family Court return decision

[27] Having summarised the affidavit evidence, the Judge recorded the matters before him in the following terms:

[35] It was not disputed by counsel that:

(a) Australia and New Zealand are contracting states within the

Hague Convention;

(b) That [WN] was present in New Zealand as required by s 105(1)(a) of the Act; and

(c) [LN] had “rights of custody” within the meaning of s 97 of the Act and that those “rights of custody” were being “actually exercised” prior to [WN] being moved to New Zealand on

19 November 2013.

[36] What was disputed was whether [WN] was habitually resident in Australia prior to his removal to New Zealand. [LN] contends that he was. [JB] contents [WN] was not habitually resident anywhere. It was accepted that the onus of proof to show [WN] was habitually resident in Australia rested on [LN] to prove on the balance of probabilities.

[37] If it was shown [WN] was habitually resident in Australia immediately prior to his moving to New Zealand, [JB] contended two of the defences in s 106 of the Act were available to her, namely:

(a) [LN] consented to or later acquiesced in [WN]’s removal to New

Zealand – s 106(b)(ii); or

(b) there was a grave risk that [WN]’s return would expose him to physical or psychological harm or would otherwise place him in an intolerable situation – s 106(1)(c)(i) and (ii).

[38] It was accepted that the onus of proof in respect of these defences was on [JB] to show on the balance of probabilities.

[28] On all issues, the Judge found in LN’s favour. That is, WN had been habitually resident in Australia; LN had not consented to or later acquiesced in WN’s removal to New Zealand; and there was not a grave risk that WN’s return would expose him to physical or psychological harm.

[29] The only issue in this appeal is whether the Judge was correct to find that WN was habitually resident in Australia prior to his removal to New Zealand, which finding was a necessary precondition under the Hague Convention to an order for WN’s return to New Zealand. It is therefore on that aspect of his judgment that I concentrate.

[30] For LN, it was argued that each of him, JB and WN were habitually resident in Australia, reference being made to:

(a) in the case of LN, his long-standing residence in, and connections with, Australia;

(b) in the case of WN, his having been born there and spent his entire life there and, in particular, his having been supported by hospital and other state agencies in Queensland; and

(c) in the case of JB, the fact that she had lived in Australia since December 2011, had obtained part-time employment and, in a variety of ways (obtaining a Medicare card, opening personal bank accounts, obtaining tax numbers and state assistance including the baby bonus payments) had engaged with Australia.

[31] JB did not dispute that LN was habitually resident in Australia. Her central proposition was that she and LN had all along agreed that they would return to New Zealand to bring WN up as a New Zealander amongst his (Māori) kinship groups. JB had, in fact, only remained in Australia for the length of time she had because of the complications that arose during her pregnancy. Those complications had meant

she was unable to return to New Zealand before WN’s birth, and had to remain in Australia after that time until WN’s health would allow them to return to New Zealand. LN had agreed to that return to New Zealand and – until relationship difficulties arose – had agreed to be part of it.

[32] On that basis JB argued that she was habitually resident in New Zealand, and that, more relevantly, WN was not habitually resident in Australia or anywhere else on 18 November 2013.

_{[33] On the issue of WN’s habitual residence the Judge reasoned:}

WN’s parents had different intentions about where they wished to reside in the long term, which they had discussed but had never been able to

_resolve.

WN had enjoyed a high degree of assimilation into daily life in Australia and had lived there for an appreciable period. It was more likely than not that his September trip to New Zealand with JB was to visit family and friends rather than being a trip undertaking preparatory work for the

_{return of the family unit to the Motueka area.}

There could be no question that LN had been habitually resident in

_Australia.

Notwithstanding her long-term intentions to return to New Zealand, JB had taken steps which indicated an intention to habitually remain in Australia. She had signed lease agreements, opened bank accounts, obtained tax numbers and various forms of state assistance, including the “baby bonus”. She had applied for a Medicare card, which required a declaration that she intended to remain in Australia. The Judge concluded:

[57] While [JB] may have initially intended that her move to Australia was short-term, I consider when she met [LN], became pregnant and following [WN]’s birth, these intentions changed. While she may have ultimately wanted

to return to New Zealand there was no agreement with [LN] on this issue and so she took the actions and steps which Mr Barkle has outlined which showed an intention to remain living in Australia. I have concluded both parents had a settled purpose to live there and this flowed on to their son. It was only because of the difficulties in the relationship and upon speaking to the police that [JB] made the unilateral decision to return to New Zealand with [WN].

[34] Therefore, on the balance of probabilities, at the time of his removal WN was a child who was habitually resident in Australia.

The nature of this appeal

[35] This is a general appeal by way of rehearing.³ As such, the principles articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar apply.⁴ That is:

[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion (footnote omitted).

[36] I proceed accordingly. In doing so I acknowledge the particular expertise of the Family Court in dealing with questions of family law within its specialised jurisdiction.

The case on appeal

Application to adduce further evidence

[37] In her notice of appeal, JB claims that the Judge was wrong in refusing to allow the admission of reply evidence from JB in response to new material introduced by LN not strictly in reply, contrary to s 6 of the Evidence Act 2006 and

_{s 128 of the Care of Children 2004. As matters transpired, JB filed an application to}

³ _{Care of Children Act 2004, s 143 and District Courts Act 1947, s 75.}

⁴ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

adduce further evidence on appeal, which application was argued in place of that ground of appeal.

[38] The further evidence JB sought to adduce – in the form of exhibits to a covering affidavit from her – comprised:

(a) an affidavit from a joint friend of JB and LN, TL;

(b) a copy of a record of JB’s consultation with the local community legal service and of a letter from the letting agent relating to the renewal of their flat lease in October 2013; and

(c) copies of her affidavits in the New Zealand Family Court protection order hearings.

[39] In terms of the fresh evidence provisions of r 20.16 of the High Court Rules, I accepted that the affidavit of TL, and the material relating to the Community Legal Service and the lease were “fresh”. JB had apparently been unable to obtain a sworn copy of TL’s affidavit in time for the hearings in the Family Court. Likewise, I accepted she may have had difficulty in the short time available to her in obtaining the two items of documentary evidence. I said that, in the circumstances, I would however give less weight to the affidavit from TL than I would have if LN had had the opportunity to respond to it.

[40] I declined leave to adduce the affidavits from the Family Court protection order hearings, as they were in my view clearly not fresh.

[41] I consider the fresh evidence in my analysis of the balance of JB’s case on

appeal.

WN’s habitual residence

[42] For JB, a central proposition on appeal was that the Judge had been wrong to find that she was habitually resident in Australia.

[43] The Judge had carried out an unduly narrow inquiry into JB’s habitual residence, and had failed to assess the implication of the circumstances in which she had remained in Australia for WN’s birth, and thereafter. There was, as the Judge had acknowledged, disagreement between JB and LN as to WN’s long-term place of residence. JB’s evidence was clear: she and LN had all along agreed that WN would be brought up in New Zealand. She had only stayed in Australia, as the circumstances of her pregnancy had transpired, in the interests of WN’s health. LN’s evidence, which JB did not accept, refuted that proposition. In these relatively summary Hague Convention proceedings, that was not, Mr Ballantyne submitted, a difference of views I could resolve. Therefore, on the basis of the evidence, WN’s parents had no joint, settled, purpose that he was habitually resident in Australia. In the absence of such a joint, settled, purpose, the Judge was wrong as a matter of law to find that WN had been habitually resident in Australia.

[44] Mr Ballantyne’s principal submission was, in those circumstances, that it was not possible for WN to be habitually resident in Australia. Alternatively, if that proposition was not correct as a matter of law then, on the evidence, the Judge had been wrong to find that WN was habitually resident in Australia.

[45] The Central Authority, responding in its capacity as such on LN’s behalf, supported the Judge’s reasoning. Furthermore, Mr Barkle’s argument was that the question of where WN was habitually resident was to be decided by reference to all the circumstances affecting WN personally: the absence, if that is what I found, of his parents having a shared settled purpose that he reside habitually in Australia did not prevent the Court finding, in terms of the objective inquiry called for, that he was in fact habitually resident there. JB’s uncertainties, and any difference of views between her and LN concerning WN’s place of residence, were not determinative of that question. A proper and objective review of the factual indicia relating to WN, in particular that at the time he was removed to New Zealand he had lived all his life in Australia, was a vulnerable baby and had been closely involved with the Australian health system, all pointed to him being – at that point in time – habitually resident in Australia.

[46] Counsel for the child, Ms Garcia, also supported the Judge’s reasoning. Ms Garcia was also concerned that these Hague Convention proceedings not be unduly prolonged: it was important, Ms Garcia submitted, that WN’s relationship with his father be resumed just as soon as possible.

Analysis

[47] The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) is incorporated into New Zealand law in pt 2, subpt 4 of the Care of Children Act 2004. The Hague Convention is concerned with the question of the forum where decisions about a child are to be made and not with the merits of each parent’s claims in respect of the child. Once the grounds for an application for the return of a child are made out, the Court must make an order that the child is returned promptly, subject to s 106. Here, s 106 is no longer in issue.

[48] The concept of habitual residence is not defined in either the Hague

Convention itself or the Care of Children Act.

[49] That concept, and its application in a range of circumstances where applications are made to the Court for the return of a child or children, has been extensively discussed by the Court of Appeal, including in the decisions referred to by counsel in this appeal, namely Punter v Secretary for Justice as the New Zealand

Central Authority,⁵ SK v KP⁶ and Punter v Secretary for Justice.⁷ Those cases, and

the wide range of New Zealand and international authority analysed therein, also discuss the concept of a “settled purpose”. The following principles were summarised by Glazebrook J in SK v KP:

[73] One of the important concepts in habitual residence is that of settled purpose. It is widely accepted that the acquisition of a new habitual residence requires both a settled purpose and actual residence for an appreciable period. It is also widely accepted that a settled purpose to leave the place of habitual residence causes that habitual residence to be lost immediately. As the gaining of a new habitual residence requires a period of actual residence this means that a person can be without an habitual residence. ...

5. Punter v Secretary for Justice as the New Zealand Central Authority [2004] 2 NZLR 28 (CA) (Punter No 1).

⁶ _{SK v KP [2005] 3 NZLR 590 (CA).}

⁷ Punter v Secretary for Justice [2007] 1 NZLR 40 (CA) (Punter No 2).

[74] Where a young child is involved, the settled purpose is traditionally considered to be that of the parents ... This requirement has been criticised as both detracting from the factual nature of the concept of habitual residence and as taking a parent-centred as against child- centred approach ...

[75] A softening of the parental purpose test has been recognised as necessary. It has been said, for example, that courts should have regard not only to the subjective intent of the parents but also to what have been called the “objective manifestations of the intent” ... Concentration on parental purpose should not be allowed to obscure the broad factual nature of the inquiry ... Settled purpose, albeit important, is only one factor to be taken into account.

[76] Even among those who doubt the emphasis on settled purpose, however, there has been almost universal approval for the proposition that the unilateral purpose of one of the parents cannot change the habitual residence of the child. To hold otherwise would not accord with the policy of the Convention and would provide an encouragement to abduction and retention ....

[50] Against the background of those general principles I explain first why I do not accept JB’s legal proposition. I then go on to undertake the broad factual inquiry called for to determine whether WN was, in fact, habitually resident in Australia on

18 November. In that context the factors JB points to when she says the Judge was wrong to find that she was habitually resident in Australia may be relevant considerations.

JB’s legal proposition

[51] In my view, accepting (for these purposes) that JB was not habitually resident in Australia and that there was not as between her and LN a joint settled purpose that WN reside habitually in Australia, does not – as a matter of law – prevent WN from being habitually resident in Australia from the time of his birth up until and including 18 November 2013.

[52] If on a proper review of the factual indicia relating to WN he was habitually resident in Australia, the absence of a joint settled purpose to this effect is not critical. The concept of a settled purpose, as it affects the habitual residence of a child, most particularly applies where a child’s parents leave a place of former habitual residence with a shared settled purpose of relocating to a new place. In those circumstances the habitual residence is lost immediately. However, as noted

above, the unilateral purpose of one parent cannot change the habitual residence of a child. To hold otherwise would not accord with the policy of the Hague Convention and would provide an encouragement to abduction and retention. Therefore, the fact that one parent may wish the family to return to another jurisdiction, and for a child to be raised in that jurisdiction, cannot of itself – prior to any move to that jurisdiction with a shared settled purpose of relocating – dictate the habitual residence of the child. In reaching that conclusion, I am mindful of the more general proposition that the question of habitual residence should be decided as a matter of fact: as Glazebrook J recorded, most propositions of general principle in this area have been criticised.

[53] I acknowledge there may be limited circumstances where a child does not become habitually resident in the place of their birth and may not be habitually resident anywhere. For example where both parents are together, temporarily in a country when a child is born so that the joint temporary purpose means that the child does not become habitually resident in the place of their birth. But that is not the case here.

[54] I note, at this point, that in her affidavit TL does depose that she and her husband knew that JB and LN:

... were going to raise WN in New Zealand. [LN] didn’t want to move himself, but he wanted to move for WN and for [JB] and he wanted WN raised in New Zealand”.

[55] In circumstances where LN has not had the opportunity to respond to that evidence from TL, I am unable to place sufficient weight on it to resolve the very clear difference in view between JB and LN on this point.

[56] I therefore turn to the broad factual inquiry that the question of determining

WN’s place of habitual residence on 18 November 2013 involves.

WN’s habitual residence

[57] I think the affidavit evidence as to the factual question of WN’s habitual

residence can be fairly summarised in the following terms.

[58] JB’s first affidavit, in the protection order proceedings,⁸ concentrated on the breakdown in her relationship with LN and with the bullying and intimidation (both verbal and threats of violence) that she suffered. Of relevance to the question of habitual residence, she said that although they had not been together for more than a month when WN was conceived, she wanted to stay with LN so that they could provide a stable family environment for WN. She did not refer in that affidavit to any agreement that they would return together to New Zealand. She was concerned that LN would come back to New Zealand and look for her and WN.

[59] LN’s first affidavit, in response in the protection order proceedings, also focussed on the relationship between him and JB. Of relevance here is his evidence that he and JB had discussed getting a home together in Australia, and possibly moving to New Zealand, shortly before WN was due to start school.

[60] LN’s formal affidavit in support of his Hague Convention application focussed on the circumstance of JB’s departure from Australia with WN. It confirmed that he had been visited by the police on the evening of JB’s departure for New Zealand in the context of a complaint that he had verbally abused her and threatened her with violence. He denied that. He did not explicitly address issues of habitual residence: rather he confirmed he was exercising custody and confirmed that returning WN to Australia would not pose a grave risk to his physical or psychological health and would not be contrary to any fundamental principles of human rights.

[61] It was in JB’s affidavit of 7 February 2014 in support of her opposition to LN’s Hague Convention application that the question of JB’s and WN’s place of habitual residence was expressly raised for the first time. In that affidavit, and as relevant to supplement the narrative at [5] to [26], JB addressed the circumstances in which LN had visited her at Nanango. She did not deny that the pregnancy had been planned. She said that after a short period of time she and LN had discussed having children, that she was still on the pill but that she would often forget to take it.

_{Whilst she had agreed to move to Brisbane with LN to give their relationship a try,}

⁸ The Central Authority’s application to the Family Court in New Zealand under the Hague Convention included copies of the affidavits filed by JB and LN in the New Zealand Family Court protection order proceedings.

she says that even at that early stage they had discussed the fact that if they were to get together they would need to move back to New Zealand where she had a secure job and all her family.

[62] JB says that, after she and LN found they were having WN, the importance of WN being born and raised as a Kiwi kid was something that kept them together. JB said they agreed to stay with LN’s mother until they had enough money to move back to New Zealand for WN’s birth. That move was delayed for two basic reasons.

[63] The first reason was that JB found out LN owed $30,000 in Australia. So they stayed longer in order to earn money to pay that debt off, before returning to New Zealand with that debt under control.

[64] The return to New Zealand was further affected by the discovery of her vasa previa condition. Her doctor advised against any travel and if she had moved back to New Zealand to live with her mother she would have been in Ngāti Moti,

45 minutes away from the local hospital in Nelson. Given the complications of any bleed that distance was considered too risky for JB’s and WN’s health. The premature and caesarian birth of WN, the need for his hospitalisation and, after that, his continuing care, simply meant that they were unable to return to New Zealand as they had originally planned. JB had returned to New Zealand with WN just as soon as she was able: she said the purpose of that trip was to prepare for the family’s return to New Zealand. She and LN had, she admitted, renewed the lease on their flat in Thorneside in October 2013, but only for six months: that reflected their intention to return to New Zealand just as soon as possible.

[65] In his reply affidavit LN emphasised the stability and permanence of his living arrangements in Australia, in particular his immediate family living there and his long-term employment. LN confirmed that JB had told him of her desire to have children at their first meeting in Queensland, and that they had discussed WN being born and raised “te kohanga reo as a Kiwi kid”. But, he says, he informed JB that it was not an option for him to return to New Zealand as he would be unable to support the family. At no time, LN says, did they agree that WN would be born or raised in New Zealand. LN says he informed JB of his debts when she informed him of her

desire to move to New Zealand. They were living at his mother’s house to save

enough money to move into their home in Brisbane.

[66] LN summarised the position in the following terms:

I continued to inform [JB] that we could not and would not be moving to New Zealand. I made it clear to [JB] that even though I had large debts, we would not be moving to New Zealand once they were settled and discharged. My debts were simply another reason why I wished to remain in Australia.

[67] LN denied that JB’s vasa previa condition was a reason for them not to move back to New Zealand. That was, he said, simply not relevant as at no point in time had they agreed or planned to move to New Zealand. LN emphasised the steps JB had taken to integrate into Australian life, including applying for and receiving a Medicare card, opening a personal savings bank account in Australia, collecting the Government funded Baby Bonus and receiving the family tax benefit.

[68] In light of that very clear conflict of evidence between JB and LN, Mr Ballantyne submitted that neither the Family Court Judge nor I could make a finding on WN’s place of habitual residence. In making that submission Mr Ballantyne relied on the view of Butler-Sloss LJ in Re F (a minor) (child abduction) to the effect that, where it was necessary to decide conflicts of evidence on affidavit evidence, and if there were not grounds for rejecting the written

evidence of the other side, the applicant would have failed to establish its case.⁹ I do

not find that authority helpful.

[69] First, as Glazebrook J in B v G noted, that approach is too extreme.¹⁰ The standard of proof remains on the balance of probability and evidence is to be assessed not only on the basis of the subjective intentions of the parents but also on the basis of objective manifestations of intent. Secondly, I do not think it is necessary to reconcile the conflict between JB and LN’s evidence to reach a view on WN’s place of habitual residence. Mr Ballantyne’s argument proceeded on the basis that JB’s position as to where WN should be brought up, and therefore as to where she and LN were to live, was itself enough to mean WN could not be habitually

resident in Australia. As identified at [51] – [53], I do not agree with that proposition.

[70] The Family Court Judge felt able to conclude, despite the conflict in the evidence, that the actions and steps which JB took “showed an intention to remain within Australia” and that WN was habitually resident in Australia up until 18

November 2013. Based on the evidence I have just summarised, I have difficulty myself in drawing the inference that JB intended to remain in Australia, certainly if the Judge meant that those steps showed an intention by JB to remain living in Australia on a long-term, or permanent basis. But I reach the same conclusion as the Judge as regards WN’s place of habitual residence being Australia up until and including 18 November 2013, when JB removed him to New Zealand and also agree that JB was habitually resident in Australia.

[71] Whatever JB’s medium or longer term intentions were, once she became pregnant and, particularly when her vasa previa condition was diagnosed, by her own evidence she knew she had to stay in Australia for her and WN’s health. WN was born in Australia. WN was, throughout his life, well integrated into Australia. Very naturally, JB herself had taken a number of steps to support her life in Australia: in particular, and given the fact of her pregnancy, she had obtained a range of Australia medical and other social welfare benefits. WN himself had received extensive and ongoing care in Australia from the relevant authorities.

[72] A medium or long term intention to reside elsewhere is not, as is recognised by Lord Scarman in R v Barnet London Borough Council, fatal to a finding that a person is habitually resident where they currently reside:¹¹

I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.

[73] Lord Scarman went on to articulate the reasons a person may have for settling on a place as regular abode. He said:¹²

And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the “propositus” intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.

These passages are acknowledged to be important authority on the concept of habitual residence although Lord Scarman is discussing the concept of ordinary residence.

[74] By my assessment, there are a considerable number of indicators to show that, notwithstanding what I accept was her medium or long term intention to return to New Zealand, JB herself was, because of all the circumstances and particularly her health needs and those of WN, habitually resident in Australia prior to, at the time of and after WN’s birth.

[75] But whatever the position may be have been for JB, it is clear to me that by reference to:

(a) the circumstances of both JB and LN living together as a couple in

Australia at the time of WN’s birth; (b) the circumstances of that birth; and

(c) WN’s subsequent 11 months’ life in Australia and his involvement in Australia’s public health and welfare support systems during that time,

WN’s place of ordinary residence was Australia when, on 18 November 2013, JB

returned with him to New Zealand.

[76] WN habitually resided in Australia with his parents for the very important reason that it was necessary for him to do so in light of the issues surrounding JB’s pregnancy and the associated issues for his own health.

[77] I therefore dismiss JB’s appeal against the decision of the Family Court.

[78] There is an order that WN be returned to Australia. Hague Convention proceedings are to be decided promptly. In the circumstances, WN is to be returned to Australia within 14 days from the date of this decision. I understand that JB will return WN to Australia. On that basis, I take it that there is no need for orders of the type made by Judge Russell at [80] though [82] of his judgment. If that is not the case, leave is reserved.

“Clifford J”

Solicitors:

C & F Legal, Nelson

Glasgow Harley, Nelson

Counsel:

G P Barkle, Barrister, Nelson