Department of Community Services and Marovski

The Central Authority, representing the Department of Community Services, sought to enforce a Hague Convention order for the return of a child to New Zealand. The respondent mother opposed this application. The matter was heard by the Full Court of the Family Court of Australia.

The primary legal issue before the Full Court was whether the Central Authority had discharged its burden of proving that the child’s habitual residence was New Zealand at the time of the alleged wrongful removal. This involved a determination of the child's settled routine and the parents' intentions regarding their residence. A secondary issue concerned the mother's application for costs.

The Full Court reasoned that the evidence did not establish that New Zealand was the child's habitual residence. It found that while the family had lived in New Zealand for a period, the mother's return to Australia with the child, and the subsequent establishment of a settled routine in Australia, indicated that Australia had become the child's habitual residence. The Court applied the principles established in *P (A Minor) (Abduction: Habitual Residence)* [1997] AC 193, which require a high degree of settledness for a child's residence to be considered habitual. The Court also dismissed the mother's application for costs, finding no basis to depart from the usual rule that costs follow the event in such proceedings.

The Full Court ordered that the Central Authority's application be dismissed and that the mother's application for costs be dismissed.