The court rejected the mother's argument that the family led a nomadic lifestyle
The High Court, in a recent case, has clarified the concept of "habitual residence" in a child custody dispute.
In Rossi v Rossi [2023] NZHC 3006, a mother appealed the Family Court decision granting the father's application for the child's return to his "habitual residence" in the UK. The mother contended that the child has no habitual residence.
The mother, a New Zealander, and the father, an Italian, had lived in the UK, where their child was born in October 2017. After moving to Italy in September 2021 and returning to the UK in November 2022, the family planned to house-sit in France. However, a disagreement arose when the mother informed the father of her intention to stay in New Zealand with the child.
In the Family Court, the judge ruled that the child's habitual residence was in the UK despite the family's time in Italy. The judge considered various factors, including the family's movements, the intended length of stay in the state, and the child's ties to the UK.
The mother appealed to the High Court, challenging the judge's decision. The court noted that the Care of Children Act 2004 outlines the criteria for an order to return a child, including habitual residence.
The court analysed the concept of "habitual residence," noting that a child habitually resides in a country where they may objectively be expected to stay or return for custodial purposes but for their removal or retention. The court further noted that the test for "habitual residence" on a child's removal from a state in breach of custodial rights "is a factual one, dependent on the combination of circumstances in the particular case," to "reflect the underlying reality of the connection between the child and the particular state." Nonetheless, the court said it may be determined by referencing particular concepts or "principles."
In determining the child's habitual residence, relevant factors include the actual and intended length of stay in the state, the purpose of the stay, the strength of ties to the state and any other state, the degree of assimilation into the state, including living and schooling arrangements and cultural, social, and economic integration.
The court said that the purpose of determining these factors is to deter a child's removal or retention from the country of their habitual residence and to ensure that it is the state where the child has the most personal ties that will decide custody and access disputes related to that child.
Ultimately, the High Court found no error in the Family Court judge's conclusion that the child's habitual residence is in the UK. The court gave weight to the judge's finding that the child's habitual residence "for the first four to four and a half years of his life was the UK." The judge was satisfied it remained so, notwithstanding the family's first time in Italy, pointing to specific indicators of their continuing connection to residence in the UK and subsequent disconnection with residence in Italy. These factors convinced the judge that the parties intended to retain the UK as their child's habitual place of residence.
The High Court also noted that, in the alternative, the judge was also satisfied that the parties reached a consensus that the child's habitual place of residence would revert to the UK after they left Italy and returned to the UK. The judge reached this conclusion because of the parties' mutual decision to leave Italy and, on arrival in the UK, to re-establish it as the child's place of habitual residence.
The mother contended that the family led a nomadic lifestyle. Still, the court rejected her argument and upheld the Family Court judge's decision that the child's return to the UK is in line with custodial purposes. Accordingly, the High Court dismissed the mother's appeal.
