Genish-Grant v Director-General, Department of Community Services

The case of *Genish-Grant v Director-General, Department of Community Services* concerned an appeal from a decision regarding the return of children to Israel under the Hague Convention on the Civil Aspects of Child Abduction. The primary dispute revolved around whether the trial judge had erred in finding that the children's return to Israel would not pose a grave risk of physical or psychological harm.

The legal issues before the appellate court included whether the trial judge had correctly assessed the evidence concerning the risk of harm to the children upon their return to Israel, and whether further evidence, specifically a travel advice issued by the Department of Foreign Affairs and Trade, should be admitted on appeal. The court was required to determine if this new evidence rendered the trial judge's original orders erroneous, particularly in light of section 93A(2) of the *Family Law Act 1975*.

The court considered the admissibility of affidavits under Regulation 29 of the *Family Law (Child Abduction Convention) Regulations*, which permits the admission of affidavits from witnesses residing outside Australia even if they are not available for cross-examination. The court found that the trial judge had correctly accepted the submission that the affidavits were admissible as evidence of the facts stated therein, notwithstanding the deponents' unavailability for cross-examination. However, the court also noted that the admission of further evidence by consent on appeal, specifically the DFAT travel advice, had the effect of rendering the trial judge's original orders erroneous.