DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & MCKANE

In the Family Court of Australia, Kent J considered a dispute between the Department of Communities (Child Safety Services) and Mr McKane concerning the return of a child, B, to New Zealand under the Hague Convention. The case involved allegations of wrongful removal and the mother's consent or acquiescence to this removal.

The court was required to determine whether the requirements of regulation 16(1A) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) were satisfied, specifically whether the onus discharged by the State Central Authority had been met. Further, the court had to resolve disputed issues of fact in circumstances where the parties had refused an opportunity to cross-examine, and consider the implications of the separation of siblings.

Kent J reasoned that the onus was on the applicant to establish the conditions for return, and that the evidence did not support the mother's consent or acquiescence to the child's removal. The court found that the child had been wrongfully removed from New Zealand. Consequently, the court ordered the child's return to New Zealand, with specific injunctions against the father to prevent further removal or change of residence pending the return. The father was ordered to bear the expenses associated with the child's return, and all extant applications were dismissed.