Zotkiewicz & Commissioner of Police (No 2)

Zotkiewicz & Commissioner of Police (No 2) concerned an appeal from a Family Court decision ordering the return of a child to Poland with his father. The appeal hinged on whether the child was "habitually resident" in Poland prior to his removal. The primary issue was whether the Family Court judge correctly assessed the child's habitual residence, particularly whether the judge erred in failing to consider or give sufficient weight to the mother's evidence.

The court had to determine whether the trial judge erred in his consideration of the evidence presented by both parties, specifically whether he appropriately weighed the mother's evidence. The court examined the meaning of "habitual residence" and the approach Australian courts must take when resolving factual disputes under the Hague Convention. It noted that while the trial judge faced significant factual issues, he did not err in not requiring discrepancies to be resolved through cross-examination. However, the trial judge's consideration of the evidence and the weight he assigned to the mother's testimony was found to be incorrect. The State Central Authority, responsible for proving that the child was habitually resident in Poland, failed to meet the burden of proof on the balance of probabilities. Consequently, the appellate court dismissed the application for the child's return and allowed the appeal, setting aside the lower court's orders. The costs of the appeal were reserved for later determination.