The proceedings concerned three children aged 11, 9 and 7 at the time of the proceedings. They had been born and brought up in Northern Ireland by their Northern Irish father and New Zealand mother.
After the parents encountered financial difficulties, they agreed that the mother would return to New Zealand to re-qualify to practice as a nurse. This was to take 14 months and the children would accompany the mother. Mother and children left in September 2009 and were due to return in January 2011.
In June 2010, the father travelled to New Zealand to see the family. During the stay, the mother advised that she wanted a divorce. On 23 September 2010, the father filed a return application. On 7 January 2011, the Family Court at Auckland declined the application, finding that there had been no breach of custody rights since the father was found to have consented to the children remaining in New Zealand indefinitely.
The trial judge added that were he wrong in this finding, he would have found that the father had acquiesced and would have exercised his discretion not to return the children. The father appealed.
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