Akau v Tilo [2019] NZFC 5746

Published 10 October 2019

Order for return — consent to removal — acquiescence — subjective intention — Care of Children Act 2004, ss 105 & 106 — Hague Convention on the Civil Aspects of International Child Abduction 1980, arts 1 & 13 — Basingstoke v Groot [2007] NZFLR 363 — Re: H (Minors (Abduction: Acquiescence) 1998 AC 72 — JHL v Secretary of Justice [2008] NZFLR 54 — Clarke v Carson (1996) 1 NZLR 349 — Runge v Levine [2017] NZFC 1017. The applicant father sought the return of his three children to Australia after the respondent mother took them to New Zealand in 2018. Under s 105 of the Care of Children Act (the Act), the father had to prove the children were in New Zealand, they had been removed from Australia in breach of his rights of custody, at the time of removal he was exercising those rights, and the children were habitually resident in Australia immediately before their removal. All of the requirements were met and the mother accepted that was the case. She raised a statutory defence under s 106 of the Act, claiming that the father had subsequently acquiesced to the children changing their habitual residence and living permanently in New Zealand. For the purposes of art 13 of the Hague Convention of the Civil Aspects of International Child Abduction, the question of whether the wronged parent has “acquiesced” depends on their actual state of mind. The subjective intention of the wronged parent is a question of fact for the Judge to determine in the circumstances of the case. The wronged parent will have acquiesced “where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return”. The onus was on the mother to prove this was the case and she relied on the delay (six months) between the father last coming to New Zealand and filing an application for an order for return to show he subjectively acquiesced to the children's move. She also relied on text messages he had sent her, saying they showed he had accepted and supported her living in New Zealand with the children. The Judge found there was no clear or compelling evidence establishing the father acquiescence to the children’s removal to New Zealand. The mother's evidence fell well short of satisfying the Judge on the balance of probabilities that the father acquiesced to the children living permanently in New Zealand. The Judge made an order for the children's return. Judgment Date: 5 August 2019. * * * Note: names have been changed to comply with legal requirements. * * *