Aquirre & Parmar
[2025] FedCFamC1F 356
•27 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aquirre & Parmar [2025] FedCFamC1F 356
File number: SYC 1871 of 2025 Judgment of: CAMPTON J Date of judgment: 27 May 2025 Catchwords: FAMILY LAW – INTERIM PARENTING INJUNCTIVE RELIEF – Where the mother seeks injunctive relief restraining the father from coming within 100 metres of her place of work – Where the evidence adduced by the mother did not record that she was employed or identify the place of any employment – Where the mother has been ordered by the Court of Appeal in the United Kingdom to return the child to Australia – Where the father provided undertakings to the Court of Appeal – Where those undertakings were registered in these proceedings – Application for injunctive relief dismissed – Father’s costs reserved. Legislation: Family Law Act 1975 (Cth) s 68B, s 117(2A)
Child Abduction and Custody Act 1985 (UK)
Hague Convention on the Civil Aspects of International Child Abduction
Division: Division 1 First Instance Number of paragraphs: 40 Date of hearing: 27 May 2025 Place: Sydney Counsel for the Applicant: Ms Shea Solicitor for the Applicant: Holmes Donnelly & Co Solicitors Counsel for the Respondent: Ms Giacomo Solicitor for the Respondent: Kenneth Harrison Solicitor & Attorney Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 1871 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AQUIRRE
Applicant
AND: MR PARMAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
27 MAY 2025
THE COURT ORDERS THAT:
1.The application of the mother filed on 14 March 2025 as not determined by the orders made by the senior judicial registrar on 23 May 2025 is dismissed.
2.The father’s costs of and incidental to the listing and hearing today in the sum of $3,532.85 are reserved.
3.The solicitors for the mother shall cause a copy of these orders and reasons when published to be served upon the Legal Aid Commission.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aguirre & Parmar has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These are proceedings commenced on 14 March 2025 by Ms Aquirre (“the mother”) in the Federal Circuit and Family Court of Australia (Division 2) as to the parenting of the child of she and Mr Parmar (“the father”), X, born in 2023 (“the child”). The child is will be two years old.
These reasons determine the balance of interim relief sought by the mother by way of her Initiating Application filed on 14 March 2025 and her Application in a Proceeding filed on 14 March 2025 as not determined by a series of consent orders made by a senior judicial registrar on 23 May 2025, including as to:
(a)The mother being permitted to travel to the United Kingdom (“the UK”) with the child on one occasion for a period of three weeks prior to a final hearing of the matter, and for the father’s time with the child to be suspended during the period of travel; and
(b)Injunctive relief pursuant to s 68B(1) of the Family Law Act 1975 (Cth) (“the Act”) restraining the father from coming within 100 metres of the mother’s place of work.
The father opposes the interim relief sought.
The mother by way of her case outline document filed on 26 May 2025 discontinued her relief as to international travel for the child. The remaining relief sought by the mother is that of an injunctive character as identified.
The Independent Children’s Lawyer (“the ICL”) submits that having regard to the limited evidence adduced in support of the outstanding disputed relief it is difficult to form a view as to supporting or opposing the injunctive orders sought by the mother.
BACKGROUND
The mother was born in 1985 in the UK and is currently 40 years old. The father was born in 1983 in Australia and is currently 42 years old.
In early 2014 the mother relocated to Australia. In 2019 she returned to the UK.
In late 2021 the parties met online. In early 2022 they commenced cohabitation in Australia. They separated on 16 November 2023, the child at that time being an infant.
In September 2023 the mother travelled with the child to the UK. In November 2023 the mother returned with the child to Sydney.
A few weeks later, the mother returned to the UK with the child. The child was an infant. She retained the child in the UK.
In early 2024 the father filed an application in the UK pursuant to the Child Abduction and Custody Act 1985 (UK) and the Hague Convention on the Civil Aspects of International Child Abduction.
Shortly after, the UK proceedings were listed. Orders were made for, inter alia, electronic communication between the child and the father to occur three times each week for at least 10 minutes. The evidence is unclear as to the benefit of such electronic communication to a very young child.
The hearing of the UK proceedings was conducted over two days in mid-2024. In late 2024 reasons for judgment and orders were made refusing the father’s application for the return of the child to Australia.
In late 2024 the father’s appeal was heard by the Court of Appeal (Civil Division). A few days later, reasons for judgment and orders were made upholding the appeal and requiring the return of the child to Australia. Other orders were made requiring the father to meet the cost of the return tickets for the mother and the child to Australia, for he to pay the mother $2,000 each month in child maintenance, and for he to pay the rental deposit and six months’ rent in advance for suitable accommodation for the mother and the child. The father entered a series of undertakings:
…
5. The father undertakes:
a. Not to institute or voluntarily support any proceedings, either criminal or civil in Australia for the punishment of the mother arising out of the retention of the child in [the United Kingdom];
b.To arrange and pay for the lodging of this order with the court in Australia in advance of the mother and child’s return to Australia;
c.Not to make any without notice applications to the Australian family court pending the first on notice hearing in the Australian family court;
d. To pay the cost of a one-way flight for the mother and child to return to Australia in accordance with this order, including reasonable extra luggage charges specifically two extra large suitcases, a second pushchair and car seat;
e.To pay the mother AUS$2,000 per month maintenance for the child on the day after the mother and child arrive in Australia and the same date each moth thereafter for 6-months (or such other period set by the Australian court) or until such time as the mother is in receipt of state benefits and/or starts employment;
f.To pay the rental deposit and 6-months’ rent in advance (in total between AUS$18,000 and AUS$19,500) for suitable 2-bedroom accommodation for the mother and child in Australia; the father to transfer such funds in advance of the mother and child’s return to Australia, upon receipt of the rental agreement (or draft agreement);
g.Not to attend at the airport on the day that the mother and child return to Australia;
h.To sign any necessary paperwork to assist the mother to obtain state benefits in Australia;
i.To pay half of the child’s reasonable day care costs, upon the mother providing evidence that she has started employment;
j. Not to use or threaten violence, intimidate, harass or pester the mother or encourage anyone else to do so;
k.Not to contact the mother, except in relation to arrangements for contact with the child or in connection with urgent matters relating to the child’s welfare, via an agreed communication platform;
l.To pay half of the mother’s Medicare mental health treatment plan for 6-months (or such other period set by the Australian court) or until the mother has obtained state benefits (if this will cover such costs; if not the father shall pay the shortfall) and/or employment;
m.To pay the sum of AUS2,000 to the mother in advance of her return to Australia. This is a contribution towards any furniture that the mother might need to purchase but in respect of which the mother need not provide any account;
n.Not to remove or seek to remove the child from the mother’s care, from the jurisdiction of Australia, or instruct any third party to do so, pending further order of the Australian court;
…
(As per the original)
In February 2025 the mother returned to Australia with the child.
On 14 March 2025 the mother commenced these proceedings. She seeks final orders to relocate with the child to the UK on a permanent basis, for she to have sole responsibility for making decisions about major long-term issues in relation to the child, for the child to video call with the father three times each week in the event the father is in Australia, and in the event the father travels to the UK, for the child to spend supervised time with the child for four hours on six days in a fortnightly period, on up to two occasions each year. She does not seek any orders in the event it is determined that it is in the best interests of the child for her to remain in Australia.
The orders and undertakings given by the father to the Court of Appeal (Civil Division) were filed and registered in Division 2 on 24 March 2025.
By way of his Response to an Initiating Application filed on 14 April 2025, the father seeks, inter alia, for joint decision-making responsibility for the child, for the child to reside with the mother in Australia, and for he to spend specified time with the child. He does not seek any orders if it is determined that it is in the best interests of the child for her to live in the UK with the mother.
On 15 April 2025 the proceedings were transferred to this Court. The ICL was appointed, and a Family Report was ordered.
On 23 May 2025 the matter was listed before a senior judicial registrar. It is uncontroversial that the father has not spent any time with the child since the mother left Australia with the child in November 2023. Consent orders were made pending further order for the child to live with the mother and spend professionally supervised time with the father for two hours each Saturday, and for the mother to facilitate video calls between the child and the father three times each week. The spending of time with the child can commence after the intake procedures of the supervised contact centre have been completed.
By way of notations made on that day, it was recorded that the parties are likely to attend interviews with the family report writer in early July this year, with the view of completing the report by the end of August. The matter is listed for a Compliance and Readiness Hearing on 29 September 2025. It is anticipated that if the expert’s report is available then directions will be made listing the matter for trial.
The balance of the disputed interim relief sought by the mother was listed before me today (rather than a senior judicial registrar) arising from the prosecution of orders to internationally travel with the child.
INJUNCTIVE RELIEF AS TO COMING WITHIN 100 METRES OF THE MOTHER’S WORKPLACE
The mother sought for the father to be restrained from coming within 100 metres of her place of work by way of injunction pursuant to s 68B of the Act.
The father by way of his case outline document identified a fundamental flaw in the mother’s application for the injunctive order as sought, being that her affidavit evidence in support of the relief records that she is unemployed and did not identify a place of employment. The father contended that he would be unable to comply with the order if made in the terms as sought by the mother in circumstances where he did not know if the mother worked or where she worked. There was some merit to that submission.
It seems uncontroversial that yesterday the mother advised the father and the ICL that she either proposes to recommence employment or has recommenced employment at an address in Suburb B. It is the mother’s case that the absence of evidence as to the fact of her employment and the location of her employment is of little moment by way of a relevant consideration in making the injunctive order as sought.
The mother in her primary affidavit, albeit comprising 109 pages including annexures, gives evidence primarily on a summary basis as to the emotional, psychological and verbal “abuse” occasioned by the father during the period of the relationship. She contends that the father encountered challenges with anger management and impulse control. She gives specified evidence in her affidavit:
115. [In] November 2023, [the father] and I were having yet another argument. He told me he did not care if he "never saw my fucking face again". I asked if he wanted to split up and he said he did. My anxiety and emotions were getting to the point where I was starting to feel unable to cope anymore and I could feel myself spiralling again. I did not want this toxic environment to start affecting [X] as well. I felt I had to protect us both on all counts because of [the father’s] rage, which left me terrified for us both. The argument continued to get more and more heated until [the father] threatened to "take me out". He was so angry. I was incredibly scared. I asked him to move into the spare room. I barricaded myself in the bedroom with [X] out of fear he was going to hurt me in the night. I was terrified that he might come into the room and hurt me whilst I was sleeping. I still have nightmares about this incident and wake up screaming. I did not call the police because I was scared of how [the father] would react.
The father submits that this evidence is “the high point” of the particularised family violence. He denies the mother’s assertions.
It is the mother’s case that she has presented with a history of mental health challenges and vulnerability since her teenage years and that she encountered difficulties with the consumption of alcohol, however has remained sober for the past five years. It is her submission that having regard to the evidence as to her experience of family violence, the injunctive orders as sought will provide her with a degree of protection and support, having regard to her mental health challenges, to give her a sense of safety and security in her workplace. It is the mother’s submission that as the uncontested parent with whom the child will live, the child will by extension also receive the benefit of that design.
The father identifies that there is no evidence adduced by the mother of any attempts on his part to locate the child or the mother including the mother’s place of employment. He identifies the terms of the undertaking given in the UK jurisdiction, binding in this jurisdiction, to continue until further order, and specifically identifies those undertakings (j) and (k) particularised above, amply provide for the protection of the mother. He submits that the making of an injunction pursuant to s 68B of the Act is a serious matter which exposes him to arrest without warrant and a criminal charge. It is his broad submission that the mother has not achieved in all the circumstances a requisite evidentiary foundation to ground her relief as sought. The mother’s submission contained in her outline document, being “there is no logical reason for the father to resist the order being made on a without admission basis” attracts little weight.
The mother bears the requisite onus to establish an evidentiary foundation for the making of the injunctive order as sought. A consideration of all the matters identified earlier in these reasons leads to the conclusion that the relief sought by the mother, especially having regard to the terms of the undertakings given by the father enforceable in this jurisdiction, has not been achieved.
The application for the s 68B injunctive order in the terms as sought by the mother at this time is refused.
COSTS
The father makes an application that his costs of and incidental to the listing of the matter today be reserved in the sum of $3,532.85. The mother opposes the reservation of the father’s costs and seeks that his application for costs be determined today.
Giving context to the father’s application for costs, other than identified earlier in these reasons, are the orders and notations made by the senior judicial registrar on 23 May 2025 recording as follows:
…
10.The Interim Orders sought in the Applicant Mother’s Initiating Application filed 13 March 2025 are pressed in relation to the following Orders only:
a.Order 9 in respect of the Applicant Mother being permitted to travel overseas with the child on one occasion for a period of three weeks prior to the Final Hearing;
b.Order 13.1 in respect to an injunction on the Respondent Father coming within 100m of the Applicant Mother’s place of work; and
c.An injunction on the Respondent Father making [enquiries] with the child as to where the mother and child live.
…
A.This matter was originally listed on this day for an Interim Defended Hearing but the parties were placed on notice on 21 May 2025 that the matter would proceed by way of Procedural Hearing only, noting non-compliance with filing directions contained in Orders dated 15 April 2025 which required Case Outlines, tender bundles and proposed Minute of Orders to be filed by not later than 4:00pm on 16 May 2025.
B.A Minute of Consent Order in relation to interim parenting arrangements was forwarded to Chambers on the afternoon prior to the Hearing and is included in Orders herein. Such Consent Orders sought that a further interim hearing be allocated.
C.The Court enquired with the parties as to what issues remain in dispute and why a further Interim Defended Hearing should be allocated.
D.The Court indicated that, based on the affidavit evidence before the Court, the matter would be stood down briefly for the parties to consider whether they in fact pressed for such an Interim Application to be listed.
E.The Court was informed that the Applicant Mother pressed for a listing of her Interim Application. In these circumstances, noting the history of the matter (including proceedings in the United Kingdon (UK) Courts and the substantive application of the Applicant Mother to relocate to the UK), the Court found that an Interlocutory Application in relation to overseas travel should be determined by a Justice in Division 1.
F.In relation to the Orders pressed by the Applicant Mother at the next Interim Defended Hearing, it is unclear as to which particular Order in the Applicant Wife’s Application in a proceeding filed 13 March 2025 grounds the Order pressed by the Applicant Mother on this day, as detailed in Order 10(c) herein.
(As per the original)
In between the listing before the senior judicial registrar and the listing before me this afternoon, the mother unsurprisingly discontinued her relief seeking an injunction that the father does not make enquiries with the very young child as to where the mother or the child live.
In the shadow of the hearing today the mother discontinued her application seeking to travel internationally with the child. It was the father’s case that there were gross evidentiary deficiencies in the mother’s application for international travel with the child including an absence of any particulars as to the proposed travel, when the travel was proposed to occur, where the mother and the child would stay, or how the travel was to be funded. Further, it was self-evident that the impact of the orders sought by the mother as to the child travelling internationally had an unknown knock-on effect as to whether it would occur after supervised time with the father had commenced or how it would accommodate the scheduled appointment with the family report writer. There was no evidence adduced as to how the mother who is in impecunious circumstances would consider international travel.
The evidentiary vacuums in the mother’s case as identified by the father ought not receive a modicum of endorsement. Implicitly, he identifies with some merit, the allocation of public funds by way of scarce Legal Aid resources to prosecute what may well have been misconceived relief.
He further identifies that he has incurred costs by engaging with at least those parts of the application that were withdrawn between the listing before the senior judicial registrar and today and the part of the unsuccessful application determined on a defended basis today. He presses for the reservation of his costs in circumstances echoing the disquiet identified in these reasons.
The mother submits that her financial circumstances are somewhat dire. She identifies that implicitly her income is low in circumstances where she receives the benefit of a grant of legal aid. She further identifies that she has no other support in this country. The terms of the mother’s grant of aid are not in evidence. There is limited evidence as to the father’s financial circumstances.
These parties are engaged in difficult litigation involving potentially complex issues. The terms of the grant of legal aid favouring the mother may assume significant relevance in balancing the relevant s 117(2A) considerations justifying costs under the Act. The absence of success of the mother in the matters listed for hearing before me today are another matter attracting weight by way of s 117(2A)(g) of the Act.
In all of the circumstances, it is just that the father’s costs be reserved as sought.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 28 May 2025
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