Child Abduction-Hague Convention : Department of Child Safety, Youth and Women & Brightman [2019] :
Department of Child Safety, Youth and Women & Brightman [2019] FamCA 80 (22 February 2019)
The Department of Child Safety and the father applies for interim and final orders regarding the child who is nearly nine months old, she was born in New Zealand and has only ever resided in that country.
The mother is Australian, towards the end of the relationship she expressed to the father that she wanted to relocate back to Australia to be with her family, the father who was born in New Zealand expressed he did not want to relocate to Australia.
After separation the mother blocked the father on Facebook, and he was unable to contact her any other way. The mother relocated with the child (5 months old at the time) without his consent and now resides in QLD.
Furthermore, the child was born with a disability from a birth injury, both parents and the child attended the first of a series of appointments in New Zealand, to begin the process for surgery in early 2019 to reattach nerves in her arm. The child has no movement in one arm from the shoulder to the fingers since birth.
The father is concerned that, as a national of New Zealand, the child may not have the same access to treatment here as she will have in New Zealand.
FACTS SUMMARY:
- The mother relocated the child to Australia without the father’s consent.
- Application under the Hague Convention for the return of the child to New Zealand
- Child has a disability from birth that requires surgery.
- Concern the child will not have access to treatment in Australia.
ISSUE:
Does the father have rights of custody for the child?
Was there a wrongful removal of the child from New Zealand?
HELD:
Interim order made.
It was determined the father has rights of custody under New Zealand law, Care of Children Act 2004 (NZ). It was further established there is at first glance a case for a return order to be made from the supporting evidence.
Interim orders were then made for the mother to surrender her and the child’s passport to the Department of Child Safety to prevent the mother from absconding Australia with the child ( the mother was also restrained from moving from her current residence) pending the determination of the Application for an order for the child’s return to New Zealand is heard.
The mother and child were also placed on the Family Law Watch list for two years.
Due to the circumstances of the application, priority in the allocation of a final hearing was afforded.
Family Law Act 1975 (Cth)
Family Law Child Abduction Convention Regulations 1986 (Cth)