Department of Community Services and Atili

The case involved the Department of Community Services (the applicant) and Ms Atili (the respondent mother), concerning the return of two children, R and O, to New Zealand. The dispute arose under the Family Law (Child Abduction Convention) Regulations 1986, which implement the Hague Convention on the Civil Aspects of International Child Abduction. Bell J presided over the proceedings in the Family Court of Australia.

The central legal issue before the court was whether the children, R and O, would be exposed to a grave risk of physical or psychological harm upon their return to New Zealand, which would constitute an exception to their mandatory return under the Convention. The mother contended that certain circumstances warranted this exception, while the Department sought their return. The court was required to determine the application of Regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986, which mirrors Article 13(b) of the Hague Convention, by assessing the evidence presented regarding the risk of harm.

Bell J's reasoning focused on the high onus placed on the party opposing the return of a child under the Convention. The judge referred to the High Court's decision in *DP v Central Authority; JLM v NSW Department of Community Services* (2001) FLC 93-081, emphasising that certainty of harm is not required, but persuasion of a "grave risk" is essential. The court noted that mere assertions of fear are insufficient and that clear and compelling evidence is needed to satisfy this onus. The judge acknowledged the complexity of cases involving allegations and counter-allegations between parents, but stressed that the court, acting under the Convention, should not determine interim custody disputes.

The court ordered the return of the children R and O to New Zealand in the company of their mother, Ms Atili, pursuant to the Regulations. Passports were to be released to facilitate this return, and the Australian Federal Police were to permit their departure. The orders also stipulated conditions for the release of passports, the removal of names from alert systems post-departure, and the discharge of previous orders. Further provisions addressed potential delays in the return, including alternative arrangements for the children's return if the initial plan was not executed by specified dates, and ultimately the discharge of the return order if the children did not return by 10 October 2008. Liberty to restore was granted on 24 hours' notice.