Director-General, Department of Child Safety & R

The case before O’Reilly J concerned a dispute between the Director-General, Department of Child Safety, and an individual identified as R. The central issue revolved around the application of New Zealand law in circumstances that invoked the Hague Convention, likely relating to child abduction or the determination of parental rights and responsibilities.

The court was required to determine whether the parties were "living together" for the purposes of the relevant New Zealand legislation. This involved an analysis of the composite expression "living together as husband and wife," and specifically whether the parties met the threshold of "living together" before considering the nature of that cohabitation. The court also considered the relevance of authorities dealing with related but distinct concepts such as "de facto relationship," "de facto marriage," and "cohabitation."

O’Reilly J reasoned that the expression "living together" was a distinct element that must be satisfied before the further question of whether that cohabitation was "as husband and wife" could arise. The court distinguished this from other legal tests for relationships, emphasizing that the New Zealand Parliament's choice of the specific phrase "living together" was significant. The judge indicated that if the parties were not "living together" at all, this would be determinative of the matter, irrespective of whether they might otherwise be considered to be in a de facto relationship or married. The court also referenced established principles for resolving disputed facts in Hague Convention matters, drawing on English authority which requires compelling independent evidence or inherent improbability to reject sworn testimony, otherwise the applicant may fail to establish their case.