Callaghan v. Thomas [2001] NZFLR 1105

INCADAT legal file Hague parental abduction

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Habitual Residence – Art. 3
The nature of the child’s stay in New Zealand was the subject of dispute. The mother argued that it was to be for a maximum period of 6 ? 12 months on the basis that if he were not able to settle he would be returned immediately. It was the father’s case that the period of 6 ? 12 months was a minimum since he did not wish to enter into a ‘shuttle’ custody arrangement. In this the court found for the father. Having established that the child’s stay was not time limited the court found that the child was no longer habitually resident in Australia on the date the alleged wrongful retention commenced (9 April 2001). Indeed the trial judge stated that the boy’s habitual residence changed immediately he left Australia to reside with his father. He went on to state: ?I do not think that wrongful retention as a form of abduction can be created by the unilateral decision of one party to abandon after some months an otherwise agreed permanent arrangement to live in another country because the party becomes unhappy even though it was envisaged, at least by him, that he may become unhappy.”