Department of Family and Community Services & Raho

The case involved the Department of Family and Community Services and an individual named Raho, concerning an application for the return of children to New Zealand. The court was required to determine whether to order the return of the children to New Zealand, despite their current settled state in Australia.

The central legal issues before the court were whether the children were settled in Australia, whether discretion existed to refuse a return order even if they were settled, and whether a grave risk of physical or psychological harm, or an intolerable situation, would arise from their return. Additionally, the court considered whether the children objected to returning and if their objections demonstrated a strength of feeling beyond mere preference, taking into account their age and maturity. The father's rights of custody at the time of the alleged removal or retention was also an issue, though this was conceded by the respondent.

The court reasoned that while the children had been wrongfully removed and proceedings were delayed, their current settled environment in Australia was a significant factor. The court found that the children suffered from emotional and psychological disturbances and were unsettled before leaving New Zealand. Evidence indicated they were as settled as possible in Australia, and a return would cause further significant adjustment, a drop in their standard of living, and potential difficulties in maintaining frequent contact with their father. The court also considered the mother's reluctance to return to Christchurch due to the children's past experiences there, which could lead to housing and work challenges in the North Island, further hindering the father's access.

Ultimately, the court concluded that the balance of considerations fell against making an order for the return of the children to New Zealand.