State Central Authority and Jiu

The State Central Authority, Secretary to the Department of Human Services, applied to the Family Court of Australia for the return of a child, G, born in February 2004, to New Zealand. The respondent, Mr Jiu, opposed the application, arguing that the child was not habitually resident in New Zealand at the time of his removal to Australia. He further contended that even if the child was habitually resident in New Zealand, his removal did not breach the mother's rights of custody, as she had acquiesced in the child living with him in Australia.

The court was required to determine whether the child was habitually resident in New Zealand immediately before his removal to Australia, and whether the removal constituted a breach of the mother's rights of custody. Additionally, the court had to consider whether the mother had consented to or subsequently acquiesced in the child's removal to or retention in Australia, which would be a defence to the application.

Cronin J found that the child was habitually resident in New Zealand immediately before his removal to Australia in both June 2006 and February 2007. The court was satisfied that the mother had rights of custody under New Zealand law and that the child's removal to Australia was a breach of those rights. The court also found that the mother would have exercised her rights of custody had the child not been removed. Crucially, the court rejected the argument that the mother had consented to or acquiesced in the child's removal or retention in Australia, finding that the actions of the husband or his parents were unilateral.

Consequently, the court ordered that the child, G, be forthwith returned to New Zealand. The application and response were otherwise dismissed, with liberty to either party to apply for directions necessary to give effect to the return order.