By -

Key decisions

  • Department of Family and Community Services & Valli [2013] FamCA 1004
  • Morrison and Morrison [2013] FamCA 1024
  • Todd & Todd [2014] FamCA 1001

Department of Family and Community Services & Valli [2013] FamCA 1004

In this matter, Rees J dismissed an application from the State Central Authority for return of the child, “M” (female), born in 2009, from Australia to New Zealand.

According to the Respondents (the child’s paternal uncle and his wife), M had lived with them since 19 June 2010 when she was 11 months old. M had lived in Australia with the Respondents since 28 April 2012, which at the time of the Hearing was 20 months.

Rees J did find that M’s mother was exercising her “rights of custody” (Family Law (Child Abduction Prevention Regulations 1986, Regulation 16(1A)) in relation to M as in asking the respondents to take care of the child the mother “was arranging for them, on her behalf to discharge her duties to the child” [51].

However, Rees J found that, pursuant to Regulation 16(2) the child was settled in her new environment. Relevant facts canvassed included that the child referred to the Respondents as “Mum” and “Dad”, sought comfort from the aunt, was a beneficiary on the Respondent’s Medicare card, considered the Respondent’s children as her own brothers and sisters and had made new friends at her local Sunday School [59 – 71].

Having found the child was settled it was then open to Rees J to exercise his discretion not to return the child, even though the mother was continuing to exercise rights of custody at the time the child was taken to Australia [73].

Rees J exercised his discretion not to return the child and in doing so, it was relevant that in regards to her immigration status, the mother “has not demonstrated that she can remain in New Zealand if the child is returned” [84]. It was also relevant to his exercise of discretion that the respondents had been the child’s “most consistent” and “sole careers” since living in Australia [85].

You've reached the end of this article preview

There's more to read! Subscribe to LSJ today to access the rest of our updates, articles and multimedia content.

Subscribe to LSJ

Already an LSJ subscriber or Law Society member? Sign in to read the rest of the article.

Sign in to read more