DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & FALCOUS

The Federal Circuit Court of Australia, presided over by Loughnan J, considered a dispute concerning the international child abduction of a three-year-old child. The applicant, the Department of Family and Community Services, sought the return of the child to New Zealand. The respondent, the child's paternal grandmother, had relocated with the child from New Zealand to Australia in January 2018. Prior to this relocation, the child had been living with the paternal grandmother, and the mother had signed a document in 2017 stating the paternal grandmother was the child's primary carer. The mother contended she had consented only to a temporary holiday of up to one month in Australia, while the paternal grandmother asserted the mother had consented to an indefinite relocation.

The court was required to determine whether the circumstances fell within the provisions of the *Family Law (Child Abduction Convention) Regulations 1986* (Cth) (the Abduction Regulations), specifically whether the mother was exercising rights of custody immediately prior to the child's retention in Australia and would have continued to do so but for the retention. Additionally, the court had to consider the paternal grandmother's defence that the mother had consented to the child's relocation to Australia.

Loughnan J reasoned that the note asserting the paternal grandmother as the primary carer did not constitute consent to an indefinite relocation. The court found that the mother was exercising rights of custody prior to the retention and would have continued to do so but for the retention, thus satisfying the requirements of regulation 16 of the Abduction Regulations. Consequently, the court determined that the child was required to be returned to New Zealand.

The court ordered that the paternal grandmother deliver the child to the Department of Family and Community Services within 48 hours, or a later time notified by the Department. Upon delivery, the Department was to facilitate the child's return to New Zealand in the company of the mother. The court vacated previous injunctions and Watch List orders and requested the Australian Federal Police to remove the respondent and the child from the Watch List. The orders were made on the basis that upon return to New Zealand, the mother would arrange for the child to live with her at her mother's home pending any further orders from the New Zealand Family Court. The Independent Child's Lawyer and the mother were to notify relevant parties in New Zealand of these orders.