Director-General, Department of Child Safety & Milson

This matter concerned an application by the Director-General, Department of Child Safety, and the father of two children, seeking the return of the children to New Zealand under the Hague Convention. The father alleged that the children had been removed from New Zealand without his knowledge or consent. The mother, however, contended that the father had consented to the children's relocation. The court was required to determine whether the father had provided his consent to the children's removal from New Zealand.

The central legal issue before the court was how to resolve disputed affidavit evidence concerning the father's consent to the children's relocation, in circumstances where no oral evidence was presented. The court had to consider the principles established in English case law, specifically *In re F (A Minor) (Child Abduction)* and *In re P (A Child) (Abduction: Custody Rights)*, which govern the approach to disputed facts in Convention matters. These principles dictate that if a judge is faced with irreconcilable affidavit evidence and no oral evidence is available, the judge must look for compelling independent extraneous evidence to reject sworn testimony. Alternatively, the affidavit evidence itself may be inherently improbable. If neither of these conditions is met, the party bearing the onus of proof will fail to establish their case.

Applying these principles, the court examined the father's sworn testimony, which stated he was unaware of the children's departure from New Zealand and had not consented to their relocation. The father's affidavit asserted he was "stunned" to be informed the children were living in Australia and had "absolutely no idea where the children are." He expressed distress at the children being taken without his knowledge or consent, which made ongoing contact impossible. The court noted that the mother's assertion of consent was not supported by any independent extraneous evidence, nor was her affidavit inherently improbable. Consequently, the father had not established his case that the children were removed without his consent.