Secretary, Department of Communities and Justice & Voigt

The case involved an application by the Secretary, Department of Communities and Justice, concerning the alleged abduction of a child, X, from New Zealand to Australia. The application was brought on behalf of the father, who sought the child's return to New Zealand under the Hague Convention. The respondent was the mother, Ms Voigt. The matter was heard by Williams J in the Family Court of Australia.

The central legal issues before the court were whether the child, X, was habitually resident in New Zealand at the time of her alleged wrongful retention in Australia, and whether the father had consented to or acquiesced in the child's removal to Australia. The court was also required to consider the exercise of its discretion regarding the return of the child.

Williams J's reasoning focused on the factual determination of the child's habitual residence, applying the principles established in *LK v Director-General, Department of Community Services* (2009) 237 CLR 582. The court found that the mother's evidence regarding the father's consent and acquiescence to the permanent relocation was largely corroborated by contemporaneous text messages and emails. Conversely, the father's assertions of a temporary move were found to be inconsistent with his actions and communications, and where his evidence differed from the mother's, the mother's evidence was preferred. The court concluded that the father had not established that X remained habitually resident in New Zealand at the time of her removal, nor had he established that the mother's retention of X in Australia was wrongful.

Consequently, the court dismissed the application brought by the Secretary, Department of Communities and Justice. The orders made on 26 October 2020 were discharged, and the Australian Federal Police were directed to remove the names of the child and the mother from the Watch List at all points of international arrivals and departures in Australia.