Department of Child Safety & Butler

The parties before the court were the Department of Child Safety and the mother of a child. The dispute concerned the alleged abduction of a child from New Zealand to Australia, with the mother seeking the child's return to New Zealand. The matter was heard by Barry J.

The court was required to determine two primary legal issues. Firstly, whether the child was habitually resident in Australia, which would preclude the application of the Hague Convention on the Civil Aspects of International Child Abduction. Secondly, the court had to consider whether the child or the mother would be at grave risk of harm if returned to New Zealand, and if so, whether the New Zealand authorities were capable of providing the necessary protection.

Barry J reasoned that the child was habitually resident in Australia, finding that the circumstances of the case supported this conclusion. The court also addressed the mother's submission regarding the inability to register New Zealand court orders in Australia, determining that section 86 of the Care of Children Act 2004 (NZ) was purely an evidentiary provision and did not permit the interpretation contended for by the mother. Regarding the risk of harm, the court found that while the mother and child might experience anxiety due to past events, the risk of harm was more imagined than real. The court noted that New Zealand authorities were capable of providing protection and that the father had not re-offended since earlier convictions. The onus of establishing grave risk rested on the mother, and this onus was not discharged.

Consequently, the application was dismissed.