Application for order to return — relocation — child moved from Australia to New Zealand — consent — acquiescence — best interests of child — Care of Children Act 2004, ss 103, 105, 106, 107 & 110 — Hague Convention on the Civil Aspects of International Child Abduction 1980, art 13 — S v P [2018] NZHC 2645 — Chief Executive for Department of Courts v Phelps [2000] 1 NZLR 168 — S D B v N J T [2009] NZFLR 885 — Andrews v Secretary for Justice [2007] NZCA 223, [2007] NZFLR 891 — Re Kay [1997] 2 NZFLR 212 — Callaghan v Thomas [2001] NZFLR 1105, (2001) 21 FRNZ 98 — White v Northumberland [2006] NZFLR 1105, (2006) 26 FRNZ 189 — L v Secretary for Justice [2008] NZFLR 54 — Re H and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 — Runge v Levine [2017] NZFC 1017 — TLM v DFVK [2010] NZFLR 1104 — SDB v NJT [2009] NZFLR 885. The applicant father sought an order for the return of his young child to Australia, after the respondent mother moved with the child to New Zealand. The father was aware of the move and the mother believed she had his consent, but this consent could not be made out in Court. The main issue was whether the father subsequently acquiesced to the child's move to New Zealand. Under s 105 of the Care of Children Act (the Act), the father had to prove the child was in New Zealand, she had been removed from Australia in breach of his rights of custody, at the time of removal he was exercising those rights, and the child was habitually resident in Australia immediately before her removal. All of these requirements were met. The mother raised a statutory defence under s 106 of the Act that the father had subsequently acquiesced to the child changing 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 Judge found that the long delay, failure to act on legal advice, communications to the mother and conduct of the father did show that he had acquiesced to the child living in New Zealand. It also appeared that the father's application under the Hague Convention was motivated by a realisation that he was responsible for paying child support. Finally, even if a s 106 defence is made out, a judge retains residual discretion to require the children to be returned (if a defence is not made out, the judge “must” order the child's return). The Judge considered that after being in New Zealand for over a year there were routines, connections and relationships that would make a return to Australia difficult. The child had been in New Zealand for around half her life and an international move would cause disruption. The respondent mother had also shown a willingness to keep the father involved, she provided their address, was available to be contacted and would keep the father updated. It was in the best interests of the child not to make an order for return to Australia. Judgment Date: 19 July 2019. * * * Note: names have been changed to comply with legal requirements. * * *