NEW ZEALAND – HAYWARD – 1994 (Return ordered) HAYWARD v HAYWARD. The mother took the children to New Zealand. The father applies for their return. Mr. Hilton supported the return through an affidavit to the court. Mr. Hilton states that “no orders existed granting one or the other any rights of custody and neither parent had given the other permission to remove the children from their habitual residence of California”. Under California law both parents have “equal and co-existing rights of custody”. The Court ordered the children returned to California. The case was appealed to the High court of New Zealand. The appeal fails and the orders of the lower court are confirmed.


Hayward and Hayward (New Zealand 1994)Family Court of New Zealand – Wellington – No FP 091/273/94

Number FP 091/273/94



Date of Hearing: 19 Dec 1994
Date of Decision: 20 Dec 1994


Mr J D Howman and Ms V J Hammond (appointed by the Central
Authority) for Applicant

Ms A G Gray for Respondent


These are Hague Convention proceedings. They involve two children,
Thomasina (who will be 8 in February) and Maximillian (who will be
2 in April).

The short history is that the Applicant, who is an Englishman, and
the Respondent, who is a New Zealander, met in London in l984 and
were married in Wellington in 1986. They lived initially in Saudi
Arabia where Mr Hayward was then working, and Thomasina was born
there in 1987. They moved to New Zealand in 1989 and then to Los
Angeles in January 1992. Maximillian was born in Los Angeles in
1993. Unhappy differences arose between the parties, although
they did not separate. On 30 March of this year Mrs Hayward,
together with the children, left the United States and flew to New
Zealand, and the present proceedings are the result.

For Mr Hayward it is submitted by Mr Howman that the requirements
of s 12 (1) of the Guardianship Amendment Act 1991 are met by the
evidence. For Mrs Hayward it is conceded by Ms Gray that the
children are present in New Zealand, that they were removed from
the United States, and that the United States is a country in
respect of which the Convention is in force for New Zealand. It is
also accepted by Ms Gray that the removal from the United States
was in breach of Mr Hayward’s rights of custody. Although there is
no dispute over this latter point, it is appropriate to record
that there is expert affidavit evidence available from Mr William
M Hilton, an attorney of Santa Clara, California, who is a
certified specialist in family law in California and who practices
in the fields of international and interstate child custody
matters and of applications under the Hague Convention. His
conclusions were in these terms:

“At the time the children were removed from California on 30 March
1994, the parents of their two children were married to one
another, no orders existed granting one or the other any rights of
custody and neither parent had given the other permission to
remove the children from their habitual residence of California.

Under these conditions California law is crystal clear: Absent a
court order, both parents have equal and co-existing rights of
custody to the two minor children and neither parent, without the
consent of the other, may decide where the children may live ”

Next, it is not in dispute that, at the time of the removal of the
children, Mr Hayward’s rights of custody were actually being
exercised by him.

It is therefore accepted that the requirements of s 12(1)(a), (b)
and (c} have been met, but it is in connection With s 12(1)(d)
that issue is joined. While it is not in dispute that Thomasina
lived in California from January 1992 until March 1994, and that
Maximillian lived there from birth and likewise until March 1994,
it is contended by Ms Gray that the children were not ‘habitually
resident’ there immediately before their removal to New Zealand.
It is to be noted that, by virtue of the definition of ‘habitual
residence’ in s 2 of the Act, it is California, rather than the
United States as a whole, to which one is to have regard in this
connection, although this is not of significance in the
circumstances of this case. Ms Gray bases her submission on the
fact that the family were living in California without having
obtained residential status from the relevant authorities.
Habitual residence must, Ms Gray contends, be lawful residence.

It is clear at the outset, as Ms Gray accepts, that this argument
cannot apply to Maximillian who, as a United States citizen, has
of course the right to live there, and so the point must be
confined to Thomasina. The evidence is that, upon the parties
moving to California in January 1992, Mr Hayward instructed an
attorney in Beverly Hills to apply for a permanent residence visa
for himself and his family. This proved to be an extended process,
and at one point Mr Hayward instructed another attorney in the
matter. Mr Hayward has, since Mrs Hayward’s departure for New
Zealand, received an interim grant of residence, and this he
expects to be made permanent following a final interview in March
next. However, it is accepted by him that for a period, following
the expiry of their visitors’ visas, he and Mrs Hayward and
Thomasina were in the United States unlawfully.

I am unable to accept that, in order for a country to be the
habitual residence of a child, the residence of the child in that
country must be lawful. Most, and possibly all, of the countries
which have adopted the Convention have immigrant groups whose
residential status is still to be clarified or regularised and, in
the case of larger countries, those groups may, one supposes, be
of considerable size. In any view it would not be consistent with
the spirit of the Convention, or of the New Zealand legislation
implementing it, if while immigration processes take their course,
the children of such families were, solely by reason of their
informal or incomplete immigration status, to be excluded from the
ambit of the Convention in circumstances where the Convention
would otherwise extend to them.

Mr Howman referred to the decision of the House of Lords in C v S
[1990] 2 ALL ER 961. where it was said by Lord Brandon of Oakbrook
(at 965) that the expression ‘habitually resident’ is not to be
treated as a term of art with some special meaning “but is rather
to be understood according to the ordinary and natural meaning of
the two words which it contains”. Lord Brandon went on to say that
“the question whether a person is or is not habitually resident in
a specified country is a question of fact to be decided by
reference to all the circumstances of any particular case”. In
the present case, Mr Howman submits, the essential facts are that
Mr and Mrs Hayward had settled in California, had been there for
more than two years, and had steps in hand to regularise their

My conclusion is that both of the children were habitually
resident in California immediately prior to their removal. It
follows that all of the requirements of s 12(1) are met and that,
subject to s 13, an order for return must be made.

There are two grounds for refusal raised by Mrs Hayward under s
13. The first is that provided for by s 13(b)(ii), namely, that
Mr Hayward subsequently acquiesced in the removal. It is not
contended that he consented to the removal prior to its
occurrence, nor could that realistically be claimed, having regard
to a number of steps which Mrs Hayward admits she took in order to
achieve her departure with the children from Los Angeles. It is
however said that Mr Hayward subsequently acquiesced, and this
rests principally on his three-week visit to New Zealand in August
of this year, during which, in addition to spending time with the
children, he sought through the counselling facilities of the New
Zealand Family Court to negotiate with his wife on a number of
topics, including possible reconciliation. When these endeavours
failed, he returned to the United States and pursued matters
through the attorney whom he had already consulted there,
culminating in the launch of these proceedings in September.

In my view the evidence does not disclose acquiescence, either
active or passive, on the part of Mr Hayward. A letter [WMH FN01]
which he wrote in August to the counselling coordinator of the
Family Court at Porirua, and which was produced in evidence, set
out the purposes of his visit to New Zealand and that letter
neither expressed nor implied any acceptance on his part of the
removal of the children to New Zealand.

The second ground advanced under s 13 is that contained in s
13(1)(c), the ‘grave risk’ provision. The grave risk alleged is of
psychological, not physical, harm and this rests on evidence from
Mrs Hayward and from a neighbor in Los Angeles, Mrs Laura

Although a number of matters are alleged in the affidavits, the
case as advanced at the hearing has to do with incidents which are
said to have occurred as the relationship of the parties
deteriorated. These were largely occasions of, it is said, a
raised voice and abusive language, together with the slamming of
doors and, on one occasion, some degree of damage to a door. It is
said that Thomasina became frightened of her father because of
such occurrences. It is also said that there was an element of
alcohol abuse on the part of Mr Hayward. All of these allegations
are said by Mr Hayward to be either fabrications or exaggerations.

Whatever the truth of these allegations, it is in my view
impossible for Mrs Hayward, on that evidence, to discharge the
onus which is on her of showing that there is a grave risk that
the children’s return would expose them to psychological harm or
would otherwise place them in an intolerable situation. It is
clear, both from the language of the statute and on the
authorities, that only exceptional cases fall within this
provision. In specifying a ‘grave’ level of risk, the Convention
and the Legislature could hardly have used a stronger word What
the Act contemplates is in my view “the most serious of
situations” and the risk of harm which is “severe and substantial”
as Judge Boshier, after reviewing the authorities then available,
said in Damiano v Damiano [1993] NZFLR 548, 554. The allegations
made by Mrs Hayward may be of significance in custody and access
proceedings, but it is not the role of this Court to express any
view as to that, as these are Convention proceedings which, as Mr
Howman said, have to do with forum. The evidence tendered falls
far short of showing grave risk, and it is therefore not necessary
to proceed to consider the exercise of the discretion conferred by
s 13.

There being no ground established under s 13, it becomes the duty
of the Court to make an order for return. There will be an order
that the children be returned forthwith to Mr Hayward, such order
to lie in Court until Mr Hayward lodges an undertaking with the
Registrar of the Court that he will return the children to
California as soon as is practicable, and until he produces to the
Registrar evidence that he has the travel documents necessary for
that journey.

A number of interim orders and directions were made in this Court
on 8 August and on 11 October. To the extent that those orders and
directions remain in being, they are discharged, with the
exception of the order prohibiting the removal of the children
from New Zealand, which order is to remain in force until just
prior to their departure for California in consequence of these

Leave is reserved to return to Court for any incidental orders or
directions which may be necessary.

/s/ I. A. Borrin
(I A Borrin)
Family Court Judge


WMH FN01: The full text of this letter is as follows:

S. A.
Telephone: 310 915 7030 Facsimile: 310 278

By Registered Mail:

August 15, 1994

Pam Johnson
The Family Court
Private Bag 50913

Dear Pam Johnson:

This letter is to notify you that my purpose in returning to New
Zealand is to visit my two children, Thomasina and Maximillian
Hayward who were removed here by my wife Karen Hayward on March
30, 1994 without my knowledge or consent.

The secondary purpose of my visit is to request my wife, in your
presence, to return to California voluntarily with the children
until custody proceedings can be heard there. I am willing to
provide air fares and separate accommodations for her and the
children in California.

I do this as I have been reliably informed by an attorney who
specialises in international child custody disputes that the New
Zealand Courts, as a signatory of the Hague Convention, have no
jurisdiction to hold legal custody proceedings in this country. If
I petition the New Zealand Courts, they will order my wife, Karen
to return to California.

I do not accede to or recognise in any way any custody arrangement
made in my absence and without my knowledge by my wife Karen, as I
believe key facts and information may have been altered or omitted
without allowing me any opportunity to contest these proceedings.

I would be grateful if you would keep a copy of this letter on
file for possible use as evidence in the custody proceedings to be
arranged in California in the future.

Yours sincerely,

/s/ Stefan Hayward

Stefan Hayward

Hayward and Hayward (New Zealand 1995)
High Court of New Zealand – Wellington Registry – AP No 359/94



Karen Selina Hayward of
Paekakariki, New Zealand, Mother,


Stefan Thomas Hayward of
Beverley Hills, California, USA,


Hearing: 12 Apr 195

Counsel: Vivienne Ullrich for Appellant
JD Howman and Vicky Hammond for Respondent

Judgment: 12 Apr 1995


This is an appeal from the decision of Judge I A Borrin delivered
on 20 December 1994 in Hague Convention proceedings. He made an
order for the return of the children, acting under the provisions
of the Guardianship Amendment Act 1991. The short facts of this
matter are not seriously in dispute and I think were, with
respect, correctly and briefly summarised by the judge in his
decision. They involve two children, a girl who is eight years old
and a little boy who will be two in another few days.

The appellant is a New Zealander. The respondent, who was the
applicant in the matter, is an Englishman. They met in 1984 and
were married in New Zealand in 1986. They lived in Saudi Arabia
for some time where the respondent worked. The daughter was born
there in 1987. They came to New Zealand in 1989 and stayed until
January 1992. They then left and went to California, to Los
Angeles. They stayed there. The respondent obtained work. They
took up accommodation in a flat. The little boy was born in 1993.
The relationship between the parties deteriorated more and more.
They did not separate, however, although there was, it seems, a
virtual estranged marriage. On 30 March 1994 the appellant,
together with the children, left the United States and flew to New
Zealand. She and the children have remained here since.

The proceedings were commenced in October 1994. The matter came to
a hearing before the District Court Judge on 19 December 1994. He
had before him evidence on affidavit from the parties. There was a
hearing of oral evidence and both the appellant and the respondent
gave evidence and were cross-examined. He came to his conclusion
on that evidence and on the material before him after hearing
submissions that the prerequisites of the statute were fulfilled
and that the defences or challenges raised by the appellant did
not succeed. As he was obliged, therefore, he made an order for
the return of the children to the United States and to California.

This appeal has been brought in due time, indeed immediately after
the decision was pronounced. There have been some further
affidavits filed in this matter both by the appellant and by the
respondent. In particular the appellant has filed an affidavit
today which was sworn on 11 April 1995. That and her earlier
affidavit both bring forward some further material which it is
said is relevant to the issues before the Court. The last
affidavit has only just been filed. It was circulated by facsimile
yesterday I think. There has not been any time to respond to it on
the part of the respondent. He has not asked for an adjournment,
however, because he wishes the matter to be dealt with
expeditiously, indeed as is the requirement under the statute.

This appeal is brought pursuant to s 31 of the Guardianship Act
and is thus a rehearing. The Court is entitled to rehear all the
evidence, to consider new evidence and to come to its own
decision. In this case there has been no further oral evidence.
The parties have relied upon the transcript in the District Court,
the other evidential material there and the additional evidential
material filed here. It is, of course, appropriate in a case like
this that not only should I have due consideration to the
conclusions and the reasonings of the District Court Judge but
also to give weight to the advantages that he had in hearing and
seeing the witnesses and coming to his conclusions on some of the
issues of fact. That is all clear enough and is emphasised in a
matter such as this in the decision of the Court of Appeal in Boy
v Boy (1994) 12 FRNZ 89.

It is, I think, important to stress, as has been done already and
it is recognised in the submissions that have been made to me,
that this is not a case about the custody of the children or their
access. It is not for the Court to come to any opinion or judgment
as to that nor really to enter into the matters which may be in
issue in that. The purpose of the hearing and this appeal is to
decide the question under the Act and under the Hague Convention
as to whether the prerequisites are made out and whether, in the
circumstances, the mandatory provisions should be applied. It is a
limited inquiry to see whether an abduction has taken place
contrary to the provisions of the Act and then to decide,
whereupon it is for the Court of residence to decide the questions
of custody. It is recognised that this New Zealand statute adopts
the Hague Convention and is to be construed and applied in
accordance with the purposes and objects of the Convention itself.
It is, I think, convenient and appropriate to quote the objects of

the Convention as contained in Article 1, which I do.

” Article 1

The objects of the present Convention are-

a to secure the prompt return of children, wrongfully removed to
or retained in any Contracting State; and

b to ensure that rights of custody and of access under the law of
one Contracting State are effectively respected in the other
Contracting States. ”

That said it is inevitable, of course, that the care and the
concern of the children, particularly young children, should be
given some weight, but that can only be in a 4narrow scope. That
is to be entered into under the stringent terms of the code that
is set out in the statute and not in the wide way to consider
whether or not the parents are appropriate care givers or to
consider in a general overall way the welfare of the children.

This case and the appeal has been proceeded on a narrow basis on
what are, in effect, four separate grounds. It is conceded by the
appellant in this Court and, indeed, in the Lower Court, that the
children are present in New Zealand, that they were removed from
California in breach of the custody rights of their rather, the
respondent, and that he was exercising those rights up to the time
of the removal. On the prerequisites, then, the remaining one
which is in issue is whether the children were in habitual
residence at the date when they were removed in March 1994. That
is to be decided on the facts of the case. Little assistance can
be obtained from other cases which depend upon their own peculiar
facts and circumstances. It is clear, and there is ample authority
to show that the construction of the phrase “habitual residence”
has no particular legal magic. It is to be construed in the
ordinary meaning of the words. The essence of “habitual” is
customary, constant, continual. The opposite of that is casual,
temporary or transient. I think, too, it is important that it is
the words that have been used in the Convention than in the Act
which are to be construed. I believe there is a clear distinction
between that phrase and the phrase “ordinary residence”, but more
particularly from the concept of the law which has built up round
the word “domicile”.

An important factor of this case, and one that has been given
considerable emphasis on this topic, is that the parents had no
legal status to work or to remain on any permanent basis in the
United States when they went there or at the time when the
children were removed. Both the parents have British and New
Zealand passports but not, of course, American passports. It seems
that the appellant has a visa which permitted her to enter the
United States at will and to remain there as a visitor. It is
conceded that during the time they lived there they were no longer
lawfully in the country. Once the respondent had started to work
and once they just stayed there they were no longer lawfully
there. That, it is suggested, adds a particular dimension and
disqualified them and the children from qualifying as habitual

I was referred to a number of cases in England on a similar topic
although not under the Hague Convention. The case of particular
importance in this is R v Barnett London Borough Council ex parte
Shah [1983] 2 AC 309. The phrase to be construed was “ordinarily
resident”. It was a case in which Shah and some others sought to
obtain rights to free education in England. They were not entitled
lawfully to be in England. They were seeking therefore some
advantage or indulgence and this, as you might expect, was
refused. Lord Scarman in the House of Lords at p 342 expressed the
view in his judgment that “ordinarily resident” required it to be
lawful before the person could secure an advantage which could
have been obtained if he had acted lawfully. Even there, however,
it was acknowledged that income tax is payable even by illegal
immigrants. I do not believe that the unlawfulness in this regard
of the individual’s residence could disqualify them or be a bar at
all. This legislation is not to provide any advantage or
indulgence to a person but is for the protection of the children
who are in a particular place and the protection of the rights of
the Court to exercise its jurisdiction there in respect of those
who reside.

I was referred to the judgment of Lord Brandon in C v S (minor:
abduction: illegitimate child) [1990] 2 All ER 961 at p 965.
Reference is there made to settled intention for an appreciable
period of time before habitual residence can arise. With respect
that seems to re-introduce some of the concepts which provided the
complications to the law on domicile and that, I think, is not to
be applied if possible. In any event that was a peculiar case in
which there was accepted to be an habitual residence in Western
Australia. The question was whether, at the time that an order was
made, that habitual residence had ceased. The child in that case
had been removed with an intention to take up permanent residence
in the United Kingdom. That, then, is a very particular case which
is not at all the same as this.

The question then is whether on the facts and the circumstances of
this case, having regard to the period and all the other
circumstances, these children were in habitual residence in
California in March 1994. They had been there for some time. The
respondent had undertaken work. They were in accommodation. The
respondent had made an application for permanent residence. The
boy was born in the United States and was thus by that accident a
United States citizen entitled to legal residence permanently
there. There could be no unlawfulness in his stay there but, of
course, his residence depends, naturally enough, on his own

In spite of employment difficulties and money problems the mother
and father stayed in the United States and did not attempt to
leave on any basis at all. I have no doubt, in my mind, that there
was an habitual residence, a customary, constant, continual
residence. Indeed, I think it was coupled with a settled intention
to stay there and there was certainly an appreciable period of
time during which that residence had continued. It could not be
said to be casual, temporary, or transient, even though they were
aware of their doubtful status as what we call overstayers. That,
however, has to be weighed against the application that had been
made to remain.

The next issue in this case is whether there has been acquiescence
by the respondent in the removal and the return to New Zealand.
The words of that part of s 13, which sets out the grounds for a
refusal of an order for return of a child, is that

” (1) Where an application is made under subsection (1) of section
12 of this Act to a Court in relation to the removal of a child
from a Contracting State to New Zealand, the Court may refuse to
make an order under subsection (2) of that section for the return
of the child if any person who opposes the making of the order
establishes to the satisfaction of the Court-…

(b) that the person by or on whose behalf the application is

(ii) Consented to, or subsequently acquiesced in, the removal;

It is not suggested that there was any consent to the removal.
What is suggested is that there was a subsequent acquiescence.

The removal was done by a subterfuge, and without any direct
knowledge of the respondent, on 30 March 1994. He did not know
where the children had gone. He telephoned New Zealand and was
enabled, after a day or two, to speak to his wife and to the
children. In April he saw a lawyer in Los Angeles to ascertain his
rights. He was advised to take proceedings such as these
proceedings immediately. He decided to wait and to come to New
Zealand. He spoke on a number of occasions on the telephone,
particularly to his daughter, and he wrote letters to her. He
wrote a letter dated 28 June 1994 to his wife. It accompanied
something for the children. I think it was clothing. The letter
then goes on:

” Let me reassure you I intend to do nothing that will upset or
harm the children any further. I am that responsible.
I just cannot bear being apart from them any longer. That is the
simple fact of the matter.

So, I am coming to be with them. ”

That letter is appended to the affidavit sworn by the appellant on
21 March 1995 in this appeal. It was not before the District

The respondent came to New Zealand. He did not get here until July
or August. He spent some three weeks. There was an attempt at
conciliation or attendance at conciliation meetings. On 15 August
1994 he wrote to the conciliator for the Family Court expressing
the purpose of his visit to New Zealand which was to visit the
children and to attempt to persuade his wife and the children to
return to California. He expressed his intention to provide air
fares and separate accommodation for her and the children in
California. There is a reference in that letter to his rights to
petition under the Hague Convention. He also notified his
disagreement with any custody arrangements made in his absence
without his knowledge or consent. That was before the District
Court. He returned to the United States and in September he
commenced some proceedings and in October these proceedings were
commenced to obtain the return of the children.

Like everything in this Act and its application it depends to a
great extent on the facts of the case and the view that one has of
the matter overall. In Re A Z (a minor) [1993] 1 FLR 683 at 691
Sir Donald Nichols VC dealt in some detail with this question of
acquiescence. He observed that it is a question of degree as so
often the case these matters are. He said, on answering that

” … the court will look at all the circumstances and consider
whether the parent has conducted himself in a way that will be
inconsistent with him later seeking a summary order for the
child’s return. ”

It is never the case that a parent must act immediately. There
must always be time for some consideration. I think it can be
appropriate that that might be quite a long period before any
steps were taken if it was thought that some conciliation or some
other means might be achieved short of this forcible judicial
procedure. I now have, of course, some further material before me
but I am not persuaded that the judge’s decision was wrong. I do
not believe that, in the circumstances of this case, the
respondent acquiesced subsequently to the removal of the children.

The final matter in issue, again under s 13, is whether, in the
words of para (c), that there is a grave risk that the child’s
return would place the child (the children in this case) in an
intolerable situation. It is not suggested, in terms, that the
children would be exposed to physical or psychological harm. It is
here that one necessarily entrenches on questions which normally
arise in custody and access, the stability of the parents, the
welfare of the children, are inevitably involved in considering a
possibility of grave risk of intolerable situations into which a
child may be put. It must be recognised that any action and the
enforcement of that under this legislation is inevitably to
disrupt the children’s life. That was disrupted in the removal and
the return must further disrupt their life. That disruption is
increased the longer it takes and the more proceedings that are
involved. That there is a trauma is almost inevitable.

The risks in this case and the emphasis in this case, and in the
intolerable situation, is the assumption that the mother will not
or cannot go or stay in the United States. The circumstances of
the intolerable situation depend to an extent on new evidence
which has been produced in the affidavit filed today. That
evidence indicates to me that largely, if not entirely, since the
decision in December 1994 the daughter, and to the extent that a
child who is not quite two can express these feelings, is fearful
of the future, the departure from New Zealand and a return to the
United States. That evidence has not been challenged. In the time
it could not be challenged. It depends on a view expressed by the
mother but there is, in addition, some expression or view from a
schoolteacher. The latter speaks of events this year, that is to
say this school year commencing 9 February, although there is some
reference in a very general way to the teacher’s knowledge of the
child in the previous year. This is certainly not new evidence if
and to the extent that it applies and refers to events before the
last hearing. I am bound to say that it is perhaps not surprising
that this kind of material has come forth after the period of time
and after what must be an unusual atmosphere in the mother’s home.

Intolerable means that something can not be tolerated. It is not
just disruption or trauma, inconvenience, anger. It is something
which must be of some lasting serious nature which cannot be
tolerated. Human beings, and particularly children, can adjust and
re-adjust to various matters, changes in their lives, death and
injury, illness and other matters.

I am not satisfied that it can be said that there is a grave risk,
that the conditions and a return to the United States would be
intolerable. I am moved in that way because I am not at all
satisfied that the wife is either unable to go or to stay in the
United States. It is not, it seems, a question of money. I say
that although the respondent has now withdrawn his undertaking to
pay her fare. He has and maintains an undertaking to pay the air
fares of the children. It is a question of status and I am
satisfied, on what is even now before the Court, that her status
is such that she would be able to enter and to remain, even if on
some conditional basis, in the United States. The evidence that
she has proffered is based on various opinions. They proceed on
hypotheses which are not precisely the situation as it now is. The
important matter now is that the respondent has a legal status to
remain permanently in the United States. With that there is some
derivative right to attain status of a similar nature for the
daughter. The son of course is entitled to remain in any event.
Equally there may be some derivative right in respect of the

I find it difficult to believe that in the current circumstances
of this family with a spouse with permanent residence and one
child legally a United States citizen that the mother would not be
permitted entry and be allowed to remain.

Finally, Mrs Ullrich has submitted to me that there should be some
conditions imposed on any order that might be made to ameliorate
the disruption and the difficulties that may arise, that will
arise in this matter. I have some doubts about the jurisdiction,
the power of the Court to impose conditions. There is nothing
certainly in the Act which expresses any right to impose
conditions. The tenor, the words indeed of the Act are mandatory.
Where the Court is satisfied that the grounds are made out it is
obliged to make the order and the order is that the child or
children are to be returned forthwith. On the other hand there are
provisions for limited conditions in ss 26 and 28 for the issue of
warrants and for the making of orders for costs and under s 27 for
security for costs. That all seems to imply no authority for the
imposition of other conditions. There is, in any event, a
difficulty in imposing conditions which relate to another
jurisdiction and to events which are to occur there. There have
been, in other cases, undertakings given and these have been
accepted by the Court and have been used I suppose as a sanction
in respect of the execution and the enforcement of the orders
made. There are here undertakings given by the husband not to take
any steps to commence any criminal proceedings which would
institute criminal proceedings against the mother in the United
States, to provide support and maintenance in the United States
and to pay the cost of air travel for the children. As I have
said, he is not now prepared to pay for the wife’s air travel.
Those, I think, should be accepted and the respondent should be
required, as in the Family Court decision, to lodge an undertaking
with the Registrar of the Court here in accordance with those

In the result, then, the appeal cannot succeed. It is dismissed
and the order that was made before will be confirmed and the
interim orders are also confirmed.

Mr Howman has asked, in the circumstances of this case, that there
should be an order under s 26 of the Act. That permits the Court
to make an order to “issue a warrant authorising a member of the
Police or any Social Worker or any other person named in the
warrant”. That would not normally be done, of course, until it was
shown that the order was being prevented from being executed. That
is not clear at this stage. There is, however, the difficulty here
that the Easter vacation is about to commence and it may be
difficult to provide otherwise.

In the circumstances, then, I am going to make an order in the
terms of s 26 but it is to lie in Court not to be enforced before
19 April 1995. Leave is reserved to either party to apply to the
High Court or to the District Court during the vacation or
otherwise as may be necessary.

/s/ Greig