Department of Child Safety & Bates

The Director-General of the Department of Child Safety, acting as the State Central Authority, applied to the Family Court of Australia for the return of a child to New Zealand. The respondent mother argued that the father had consented to the child's removal from New Zealand or, alternatively, that the father was not exercising his custodial rights at the time of the removal. The court was required to determine whether these defences to a mandatory return order under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) were established.

The court found it highly unlikely that the father had consented to the child's removal, particularly given his recent efforts to secure the child's return after a previous abduction and his active attempts to establish a contact regime. Furthermore, even if consent had been given on 21 May 2006, it was unequivocally withdrawn by a letter from the father's solicitors on 22 May 2006, prior to the mother's departure with the child on 23 May 2006. The court also determined that the father was clearly exercising his custodial rights by seeking to establish regular contact with the child.

Consequently, the court concluded that the defences were not established and a mandatory order for the child's return to New Zealand was required. However, considering the child had resided in Australia for approximately two years, had siblings there, and was well-settled, the court ordered that the return be delayed pending the outcome of a judicial conference to be held by telephone in the New Zealand proceedings. The court also issued injunctions restraining the mother from removing the child from Australia or changing his residence pending his return, and made detailed orders regarding passports, the Airport Watch Alert System, and financial contributions towards the child's return.