Clanton v Clanton [2019] NZFC 999

Published 06 September 2019

Application for return of children to USA — rights of custody — habitual residence — Care of Children Act 2004, ss 4, 5, 6, 15, 16, 97, 105, 106 & 107 — Hague Convention on the Civil Aspects of International Child Abduction — Punter v Secretary of Justice [2007] 1 NZLR 40 (CA) [Punter No 2] — Langdon v Wyler [2017] NZHC 2535. The applicant father sought the return of the parties' two children to the USA. The parties and the children had moved to New Zealand less than a year prior; their marriage broke down and the father returned to the USA. The respondent mother had got a job in New Zealand (which was the reason they moved) and wanted to remain here with the children. Under the Care of Children Act (the Act), which codifies the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), an application for return will be successful if it can be shown that: (a) the child is in New Zealand; (b) the child was removed from another Contracting State in breach of an applicant's rights of custody; (c) at the time of removal those rights were being exercised (or would have been but for the removal) and; (d) the child was habitually resident in the Contracting State immediately before removal. The applicant submitted that he and the respondent had agreed they would move to New Zealand for her job for a limited period of up to two years on the basis that their marriage endured for that period, and that upon the respondent announcing their separation and intention to retain the children in New Zealand with her, the agreement was breached. The respondent opposed the application on the basis that the children were not wrongly retained in breach of the applicant’s rights of custody and the children were not habitually resident in the USA immediately prior to retention. The onus was on the applicant to prove there was a definite agreement that the family would move back to the USA after two years. He could not provide evidence to establish this. There were no witnesses who could give evidence that the respondent had agreed to return after two years, the applicant had posted on social media saying they may never return, the parties had sold their family home and re-homed their pets and purchased enough furniture and items for a long term stay in New Zealand. Further, the Judge found the children were not habitually resident in the USA. They had little extended family and no ties to schools, people or property. There were limited cultural ties to the USA and the children were too young to understand anyway. They had friends and support networks in New Zealand. As the applicant could not establish the children were wrongfully retained in New Zealand or that the children were habitually resident in the USA immediately prior to the alleged wrongful retention, the application was dismissed. Judgment Date: 19 February 2019. * * * Note: names have been changed to comply with legal requirements. * * *