A v A
 IEHC 425
THE HIGH COURT
2006/31HLC - Feeney (ex-tempore) - High - 16/11/2006 - 2006 1 1
This judgment is circulated in redacted form to avoid identification of parties
The applicant in this case is the father of the two children named in the title of these proceedings. The father was born on 9th June 1972 and his first marriage was dissolved in October 2000 in NZ. The applicant father is from NZ as is the mother respondent, who was born on 30th December 1976. The applicant and respondent met in NZ in 2000, but they both moved to Ireland, one in May 2001, and the other in July 2001. They had commenced a relationship in NZ and that continued after they had move to Ireland.
They had their first child, LN, on 7th June 2003 in Ireland. They were married on their return visit to NZ on 16th January 2004 and shortly thereafter returned to Ireland.
The relationship between the applicant and the respondent was volatile and turbulent and differences were such that they separated in Ireland in July 2004. The breakdown of relations was such at one point that district court family proceedings were commenced in May 2004 wherein a protection order was sought by the respondent. Those proceedings were withdrawn on terms, including a maintenance order, and were concluded in November 2004.
There was a brief period of reconciliation in mid 2004 which resulted in another child being conceived. That child was born on 28th March 2005 in Ireland and was named CM.
The applicant left Ireland in January 2005 and returned to his home country, NZ. He visited Ireland briefly in March 2005 for his daughter's birth, having taken leave of absence from this job in NZ.
During the period whilst the applicant was in NZ and whilst the respondent remained in Ireland, there was extensive contact by telephone between them as shown by the telephone records. Some financial support was provided, but the extent of same is in dispute.
Following the birth of the second child, discussions between the parents resulted in the mother and children leaving Ireland for NZ on 24th August 2005. There was a factual dispute as to whether the mother indicated that her return to NZ would be temporary and she would return to Ireland if the relationship did not prosper following her return to NZ.
What is clear is that the purpose of the return was to work at a trial reconciliation and to attempt "to work at the marriage" and "to give it a go" and to save the relationship. The mother avers that she only returned to NZ with the children to try for a reconciliation, but claims that she did so "with the intention of coming back to Ireland if the reconciliation did not work." (Paragraph 9 of her affidavit of 2nd October.)
The applicant denies that the return was in any way recognised as a trial and indicates by his averments that he had no knowledge of any suggested possible return to Ireland. (See paragraphs 34 to 36 of his affidavit of 16th October.)
This court is satisfied on the sworn averments that the respondent must have returned to NZ for an attempt at reconciliation and her return to live and remain with the applicant must have been, to a considerable extent, conditional.
However, the external facts clearly indicate to the court that whilst the willingness to continue to live with the applicant might have been conditional, that the return to NZ with a possible or stated return to Ireland in the event of the reconciliation not succeeding, is unlikely to have been either mentioned to the husband or significantly to the forefront of the respondent's contemplation. This is demonstrated by the fact that not only did the applicant pay for the fares for his wife and children to return to NZ, but that the personal property of the family in Ireland was brought back to NZ by freight.
The return also took place against the background of the purchase of a plot of land for use as a site for a family home and the subsequent placing of a house on that site and the involvement of the respondent in such activities and, indeed, the ultimate coming together of the whole family unit in that house shortly before Christmas 2005.
It must also be recognised that not only were both parties from NZ, but also that they had family in that country, the applicant being part of a wide extended family and the respondent having a mother who was in ill health all living in NZ.
It is also the case that when the respondent left Ireland she severed most ties with this country having neither a residence nor a job in Ireland albeit that she maintained a bank account.
The applicant and the respondent lived together with their children from their return in August 2005 until the new house was ready for them to move into. Unfortunately, very shortly after that on 1st January 2006, the wife left the family home with the children and thereafter until the mother moved to Ireland with the children in mid June 2006 they resided with the mother's family.
Up until the respondent left the family home, the activities of the applicant and the respondent identified on affidavit were directed towards setting up a permanent family home in NZ. It appears to this Court that it is only after the breakdown as of 1st January 2006 and the departure from the home of the mother and children that the issue of the return of Ireland could in any way have come to the foreground of the respondent's contemplation.
After the departure from the family home, the mother remained in NZ until June and then moved to Ireland without either the knowledge or consent of the applicant. During those six months there were some but limited contact with the father.
In the proceedings herein the father seeks an order for the return of the two children to NZ pursuant to Article 12 of the Hague Convention as implemented in Ireland by the Child Abduction and Enforcement of Custody Orders Act1991.
It is not in dispute that the father had rights of custody and was exercising those rights of custody within the meaning of Article 3 of the convention prior to the alleged wrongful removal.
The principal issue in this case is as to whether or not the children were habitually resident in NZ prior to their being brought to Ireland in or about 12th June 2006. It is that issue which this court must address.
The only other issue in any way pursued by the respondent is that the court must consider the matter of grave risk to the children if returned to NZ. This, it is suggested, arises from contact with their father and is based upon a claimed history of the father's conduct. The potential danger of exposure to physical or psychological harm or the otherwise placing of the children in an intolerable situation within the meaning of Article 13B of the Convention is raised. However, it is recognised by counsel for the respondent that if the court orders the return of the children that the issue of grave risks, such as it is, can be addressed by means of undertakings and it follows that it is not being contended that the grave risk is such that a return could not be ordered where...
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