The mother and the father were living in Australia with their son, H. Following the break-down of their relationship, the mother moved to New Zealand with H, then aged 2 and a half. The New Zealand Central Authority applied to the Family Court on behalf of the father for an order for the return of H to Australia under the Care of Children Act 2004 (the Act). The Family Court was required to order the child’s return to Australia under s 105 of the Act, unless one of a limited number of exceptions set out in s 106 applied. Sections 105 and 106 of the Act implement in New Zealand arts 12 and 13 of the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The Family Court declined to order H’s return as an exception was made out under s 106(1)(c)(ii)- there is a grave risk that the child’s return would place the child in an intolerable situation. The father successfully challenged that determination in the High Court, where the Judge found that the s 106(1)(c)(ii) exception was not made out and ordered that H be returned to Australia. The mother appealed to the Court of Appeal of New Zealand.
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