State Central Authority & Khadem (No 2)

The Family Court of Australia heard an application by the State Central Authority on behalf of the mother of four children, seeking their return to New Zealand. The respondent was the children's father, Mr Khadem. The children had travelled from New Zealand to Australia with their father on 19 December 2013. The application was made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth), which give effect to the Hague Convention on the Civil Aspects of International Child Abduction. The State Central Authority contended that the children had been wrongfully removed from New Zealand, as they were under 16, habitually resident in New Zealand, and their removal breached the mother's rights of custody, which she was exercising.

The primary legal issue before the court was whether the mother had consented to the father's removal of the children from New Zealand to Australia. The father argued that the mother had consented to the move, and therefore, the court should exercise its discretion under regulation 16(3) not to order the children's return. The court was required to determine if the father had discharged the onus of proving that the mother's consent was real and unequivocal.

Justice Macmillan found that the father had not established that the mother consented to the children's removal to Australia. The mother's evidence, which the court accepted, was that she was not aware of the father's intention to take the children to Australia. While the father claimed to have discussed the move with the mother on multiple occasions and that she had encouraged it, the mother denied these discussions ever took place. The court noted that the father did not inform the mother of his intention to travel to Australia with the children, nor did he seek her consent. Consequently, the court concluded that the father had not satisfied the requirements of regulation 16(3)(a)(ii), and the discretion to refuse the return order was not enlivened.

The court ordered the return of the four children to New Zealand. Specific directions were made regarding the timing of their travel, the arrangements for purchasing flight tickets, and the father's ability to accompany them, subject to certain conditions. The father was also restrained by injunction from removing the children from Australia or changing their place of residence pending their return. The court also ordered that the children's names be placed on an All Ports Watch Alert System until their departure.