New Zealand Family Law Reports
Volume 2024 Parts 14-15 is now available online.
McDonald v Sanchez — [2024] NZFLR 644
Care of children — Guardianship and care of children — International child abduction — Applications for return of children — Prerequisites to making orders for return — Habitual residence — Date of retention — Date reckoned by reference to expiration of lawful period within which children could be in New Zealand expired — Relevance of concept of anticipatory breach — Proper approach — “Parental purpose” — “Settled purpose” — Factual inquiry — Care of Children Act 2004, s 105(1)(d).
Care of children — Guardianship and care of children — International child abduction — Applications for return of children — Grounds of refusal — Children’s objections — Proper approach — Relationship of ground of refusal to exercise of residual discretion — Care of Children Act 2004, s 106(1)(d).
Care of children — Guardianship and care of children — International child abduction — Applications for return of children — Grounds of refusal — Residual discretion — Proper approach — Relevance of best interests and welfare of children — Care of Children Act 2004, s 106(1)(d).
Care of children — Guardianship and care of children — International child abduction — Orders for return of children — Appeals — Proper approach — Difference between appeals from decisions under s 105 and appeals from exercises of discretion under s 106 — Care of Children Act 2004, ss 105 and 106.
McDonald v Sanchez — [2024] NZFLR 693
Children — Child abduction — Hague Convention — “Habitual Residence” — Broad factual inquiry — Settled purpose of parents important not decisive — Formal agreement not determine necessary stability to be habitual — Irrelevant not necessarily permanent — Care of Children Act 2004, s 105 — (INT) Hague Convention on the Civil Aspects of International Child Abduction.
Children — Child abduction — Hague Convention — Grounds for refusing return of child — Child’s objection — Exceptions exist to advance best interest of the particular child — If exception exists no convention principles tilts in favour of return — Scheme designed to serve best interest of particular child — Not right to give emphasis to orders of overseas court — Care of children orders never final — Can revisit as circumstances change — Children age and mature — Care of Children Act 2004, ss 105 and 106 — (INT) Hague Convention on the Civil Aspects of International Child Abduction.
Appeals — Exercise of discretion — Restrictive appeal standard — Not apply decision when exception applies — Assessment of fact and degree — Value judgment — General right of appeal — Entitled to appeal court’s decision — (NZ) Care of Children Act 2004, ss 105 and 106 — (INT) Hague Convention on the Civil Aspects of International Child Abduction.
