Secretary, Attorney-General’s Department and Tilson

In the matter of *Secretary, Attorney-General’s Department and Tilson*, Strickland J of the Federal Circuit Court of Australia considered an application for the return of a child, B, to New Zealand. The dispute arose from the respondent mother's removal of B from New Zealand to Australia, with the applicant seeking the child's return under the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The respondent mother opposed the return, alleging a history of domestic violence by the father and arguing that the child would be exposed to psychological harm and an intolerable situation if returned.

The central legal issue before the Court was whether the respondent mother had established that the child's return to New Zealand would expose her to a grave risk of harm. This required the Court to assess the evidence presented by both parties regarding allegations of domestic violence, breaches of court orders, and the father's general conduct, and to make a prediction about future events if the child were returned. The Court also considered the availability and efficacy of protective measures within the New Zealand legal system.

Strickland J reasoned that while the relationship between the parties was undoubtedly dysfunctional and at times abusive, the evidence presented by the respondent mother was often vague, inconsistent, and lacked corroboration from relevant witnesses. The Court found it difficult to make definitive findings of fact regarding the extent of the alleged domestic violence. While acknowledging some evidence of the father's past breaches of protection orders in relation to a previous partner, the Court considered this too remote to predict future conduct towards the respondent mother and child, particularly as no protection order was in place at the time of the child's removal. The Court noted that a protection order was subsequently made in New Zealand, and there was no evidence of any attempt by the father to breach it. Furthermore, the Court accepted the father's evidence that he understood the need to apply to the New Zealand Family Court for contact and would not attempt to see the child or mother outside of the court process, being conscious of the protection order and the risk of imprisonment for breaching it. The Court concluded that the New Zealand Family Court was the appropriate forum to address the parties' allegations and make necessary orders for the child's welfare, given the strong connection the child had to New Zealand and the availability of resources and protective mechanisms there.

The Court ordered that the child B be returned to New Zealand forthwith pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The proceedings were adjourned to a later date to consider the terms of the order and any necessary conditions or undertakings.