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

The Director-General, Department of Communities, Child Safety and Disability Services, as the State Central Authority, applied to the Family Court of Australia for final orders that two children, N and K, be returned to New Zealand. The application was made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth), which give effect to the Hague Convention on the Civil Aspects of International Child Abduction. The children's father, Mr P, residing in New Zealand, was the applicant for the 'request' under the Regulations, and the children's mother, Ms Tapita, was the respondent.

The central legal issue before the Court was whether the father had consented to the children's removal from New Zealand to Australia or their retention in Australia. The mother contended that the father had consented to the children moving to Australia on a permanent basis, while the father submitted that he had consented only to one child coming to Australia for an extended holiday, not for permanent relocation. This factual dispute necessitated cross-examination of relevant witnesses to determine the circumstances of the children's presence in Australia.

The Court considered the evidence presented, including affidavits and oral testimony, and found the father's evidence to be credible. Specifically, the Court accepted the father's assertion that he never agreed or consented to either child being permanently relocated to Australia. The Court found that his consent for N to travel to Australia with her maternal grandmother was for a temporary visit, with the understanding that N would return to New Zealand. Furthermore, the Court found that the father had no knowledge of or consent to the mother's removal of K from New Zealand to Australia, noting that the parents had agreed to a shared care arrangement for K. The Court rejected the mother's version of events, finding no unequivocal consent from the father for a permanent relocation of the children.

Consequently, the Court ordered that the children, N and K, be returned to New Zealand. The orders included specific timelines for their departure from and arrival in New Zealand, injunctions restraining the mother from removing the children from Australia or changing their residence, and provisions for the use of the Australian Federal Police and other authorities to facilitate the return. The mother was also ordered to pay all necessary expenses associated with returning the children to New Zealand.