Bas Degarmo v Rachel Nathaniel  NZFC 3974
Published 20 October 2016
Application for return of children — Care of Children Act 2004, ss 103, 106 — Hague
An application to return children to Australia was dismissed. Under s 105 the Court can make an order to return a child to to a contracting state (to the Convention
of the Civil Aspects of International Child Abduction 1980) if the child has been unlawfully removed. Consent to the removal is grounds to refuse to make an order (s 106). In earlier proceedings, upheld on appeal, it was found that the mother had consented to the removal of the children with the intention of making New Zealand the place of their habitual residence. These proceedings concerned an application by the father who had not participated in his wife's earlier appliction and claimed that the time frame for an application should be extended. This approach was rejected by the Judge as he had the opportunity to prosecute an application but chose not to.The relevant matter whether s 106(a), where there is discretion to refuse to make an order if the application is made more than one year after the removal of a child and the child is settled, was applicable and if so what implications flowed from its application.
It was found that the children had been removed from Australia by the respondents with the informed consent of the parents. The respondents relying on s 106(1)(a), claimed that the children were now settled in New Zealand and that is too uncertain to be confident that the children would be safe and appropriately cared for if returned to Australia.
The Judge determined it was in the children's best interests and welfare to remain in New Zealand.
Judgment date: 3 June 2016.
* * * Note: names have been changed to comply with legal requirements * * *