Department of Child Safety & Wilkins

The Director-General of the Department of Child Safety applied to the Family Court of Australia for an order for the return of a 14-year-old child, B, to New Zealand under the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The application was brought at the request of B’s mother, who had custody of him in New Zealand. The respondent to the application was B’s maternal grandmother, who had brought B to Australia following a period of significant concern regarding his mother's behaviour, including alcohol and drug abuse, violent conduct, and suicidal ideation.

The court was required to determine whether the child should be returned to New Zealand. This involved considering the defences available under the Regulations, specifically whether there was a grave risk that the child's return would expose him to physical or psychological harm, or otherwise place him in an intolerable situation, and whether the child objected to being returned, had attained sufficient age and maturity for his views to be considered, and expressed his objection with a strength of feeling beyond a mere preference.

Justice Kay found that the defence of the child objecting to his return was made out. This concession was properly made by the Department, based on evidence including a family report. The report indicated that B had made it clear he did not wish to return to New Zealand, his strength of feeling exceeded a mere preference, and he possessed sufficient maturity for his views to be taken into account. The court also noted concerns about the risk of physical and/or emotional harm to B if returned, including potential depression, self-harm, or suicide, particularly given his mother's history and the traumatic incident he witnessed. While the court did not need to definitively determine the "grave risk" defence, it indicated that the material would likely have favoured such a finding.

Exercising its discretion, the court dismissed the application for the child's return. This decision was based primarily on B's strong objection to returning to New Zealand and the potential risks to his emotional and psychological wellbeing. The court considered the comparative suitability of the forums for determining B's future and the likely outcome of substantive proceedings, noting that it was unlikely B would be ordered to live with his mother if he maintained his wishes. The court concluded that the discretionary factors strongly favoured dismissing the application.