DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY & DISABILITY SERVICES & SALESA

The case involved the Director-General, Department of Communities, Child Safety & Disability Services (the applicant) and Ms Salesa (the respondent mother) concerning the return of a child to New Zealand under the Hague Convention. The dispute centred on whether the child, L, habitually resided in New Zealand and whether the father had a right of custody that was breached by the child's retention in Australia. The application for cross-examination of witnesses by the mother was also a significant point of contention. The matter was heard by Tree J.

The court was required to determine whether the child L was habitually resident in New Zealand at the time of his removal to Australia. It also had to consider whether the father possessed a right of custody under New Zealand law and if the mother's retention of the child constituted a wrongful removal and a breach of that right. Furthermore, the court needed to assess whether any exceptions to the return order, specifically the grave risk of harm to the child or the child's strong objection to returning, were enlivened by the evidence presented. The court also considered the mother's application to cross-examine witnesses, which had been dismissed by the Family Court.

Tree J reasoned that the child was habitually resident in New Zealand, finding that the father's departure from Australia to New Zealand was permanent. The court determined that under New Zealand law, both parents were guardians and thus possessed identical rights of custody. The retention of the child in Australia was found to be a wrongful removal and a breach of the father's right of custody, as any interference with the ability to exercise that right constitutes a breach. The court found the mother's allegations of grave risk of harm to the child were neither clear nor compelling, and therefore the discretion to refuse a return order was not enlivened. Similarly, the court found no evidence of a strong objection from the child to returning to New Zealand. The application for cross-examination was dismissed due to non-compliance with Family Law Rules 2004 (Cth) rule 15.14 and the likelihood of an adjournment.

The court ordered the child L to be returned to New Zealand by 24 September 2016. Injunctions were issued restraining the mother from removing the child from Australia or changing his usual day-to-day residence. The court also ordered that the child and mother be placed on the Family Law Watch list, with provisions for their removal upon confirmation of travel arrangements. All other applications were dismissed.