Director-General, Department of Communities, Child Safety and Disability Services and Rovo

The Director-General of the Department of Communities, Child Safety and Disability Services (the applicant) brought proceedings against Ms Rovo (the respondent mother) concerning the return of two children, S and B, to New Zealand. The case was heard by Kent J of the Family Court of Australia. The dispute centred on whether the children should be returned to New Zealand, with the applicant seeking orders for their return and the respondent mother opposing this.

The primary legal issue before the court was the interpretation and application of regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), which provides exceptions to the general obligation to return a child under the Hague Convention. Specifically, the court had to determine whether the circumstances presented by the respondent mother constituted a "grave risk" that the children's return would expose them to harm or place them in an "intolerable situation." This involved assessing the onus of proof and the nature of the predictive judgment required by the regulation.

Kent J's reasoning emphasised that the exceptions to the return order under regulation 16(3)(b) are not to be interpreted narrowly in the sense of being applied grudgingly. Instead, the court's task is to give effect to the regulation according to its terms, which requires making a judgment based on the evidence. The court clarified that the problem is not one of construction but of application, involving the determination of primary facts and the drawing of conclusions from those facts. The discretion not to order a return only arises if there is a grave risk of harm or an intolerable situation, and the onus rests on the party opposing the return to establish this. The court noted that while the respondent mother opposed return, the evidence did not establish the necessary grave risk or intolerable situation required to invoke the exception.

Consequently, Kent J ordered that the children, S and B, be returned to New Zealand by 19 January 2015, with specific provisions for their travel and the respondent mother's restraint from removing them from Australia. The respondent mother was also ordered to pay all necessary expenses associated with the children's return. All other applications were dismissed.