Baltu & Godoy
[2025] FedCFamC2F 323
•3 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baltu & Godoy [2025] FedCFamC2F 323
File number(s): MLC 6470 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 3 March 2025 Catchwords: FAMILY LAW – Parenting – urgent interim hearing – where orders were made by consent in January permitting the father to take the two children to Country C until early 2025 – where the father paid a significant security payment that was held in his solicitors trust account – where the eldest child returned to Australia in early 2025 – where the father and the other child did not return to Australia – where the security payment has been paid to the mother – where it is alleged the father and the other child continue to reside in Country C – where Country C is not a Hague convention country – where the mother seeks a recovery order and an airport watchlist order in the event the father returns with the child – where the mother sought orders for the father to execute a charge on the property held in the his name to allow the mother to lodge a caveat over the property – where it is requested the father solicitors serve a copy of these orders on the father. Legislation: Evidence Act 1995 (Cth) ss 140.
Family Law Act 1975 (Cth) ss 69E, ss 111CC & s 111CD
Cases cited: Bellanger & Wemble [2023] FedCFamC2F 1246 Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 3 March 2025 Place: Melbourne Counsel for the Applicant: Ms Agresta Solicitor for the Applicant: Barbayannis Lawyers The Respondent: No appearance ORDERS
MLC 6470 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GODOY
Applicant
AND: MR BALTU
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
3 MARCH 2025
THE COURT ORDERS THAT:
1.Pursuant to Section 67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the child X, born in 2014 ("X") and to deliver the said child to the Applicant Mother forthwith, she being a person entitled to have the said child live with her pursuant to orders made in the Federal Circuit and Family Court of Australia on 14 November 2022; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child/ren may be found.
2.A copy of this order be emailed and faxed immediately to the AFP Operations Coordination Centre and the Department of Foreign Affairs and Trade (“DFAT”) by the Melbourne Registry of the Federal Circuit and Family Court of Australia.
3.The Respondent Father be required to provide, within 3 days, the current address at which X is staying in Country C via email to the Applicant Mother's solicitors, directed to …@....
4.IT IS RESPECTFULLY REQUESTED that the Police authorities of and in Country C, the Courts of and in Country C and the Child Welfare authorities of and in Country C lend their assistance, if they or any of them can assist consistently with the law of Country C, with the enforcement of this recovery order (Order 1 herein), and the reunification of the Mother with the children pursuant to the orders made in this Court on 14 November 2022 and 3 March 2025.
5.The Applicant Mother be permitted to, and is directed to provide this application and supporting documents filed herein, and any Court Orders made in this proceeding or in prior proceedings, to DFAT and/or any Country C authority for the purposes of locating the child, X, born in 2014, in Country C, and to request the assistance of any court, authority or police force in Country C and/or the Commonwealth of Australia to enforce these orders.
6.That MR BALTU ("the Respondent Father") and his servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the female child Y born in 2009 ("Y") and the male child X born in 2014 from the Commonwealth of Australia.
7.That Y and X be and are hereby restrained from leaving the Commonwealth of Australia until further Order.
8.It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until each of the children reach the age of 18 years.
9.Until further order, the children live with the Applicant Mother and the operation of the following orders insofar as they relate to the children’s spend time with the Father be suspended:
(a)Paragraph 4 of the Final Parenting Orders dated 14 November 2022; and
(b)Paragraph 5 of the Final Parenting Orders dated 14 November 2022.
10.Within 14 days of X returning to the Commonwealth of Australia, the parties do all things necessary and sign all documents required to cancel Y's and X's Country C “E-VISA”.
11.Within 24 hours of the Respondent Father's return to Australia with X, or the Applicant Mother's arrival in Country C, the Respondent Father hand over X's passport to the Applicant Mother.
12.If either party refuses to sign any document required to give effect to these orders, a Registrar of the Court be appointed pursuant to Section 106A of the Act to execute all deeds and documents in the name of that party and do any act or thing necessary to give validity and operation to all such deeds and documents.
AND UNTIL FURTHER ORDER & EX PARTE:
13.Until further order the Respondent Father be restrained by injunction from leaving the Commonwealth of Australia.
14.Until further order the Respondent Father be and is restrained by injunction from disposing of, encumbering or otherwise dealing with the property at D Street, Suburb E (‘the property’).
15.Until further order the Respondent Father do all acts and things to execute a charge of all of his right, title and interest in the property known as Certificate of Title …, Folio … to permit the Applicant
WifeMother to lodge a caveat over the title of … pursuant to the Transfer of Land Act 1958.16.The Applicant
WifeMother be authorised to immediately lodge a caveat over the property pursuant to the obligation to execute a charge of the property at D Street, Suburb E.17.The solicitors for the Applicant serve a copy of these orders on the solicitors of the Respondent (who are still currently on file) AND IT IS REQUESTED that Joshi Lawyers serve a copy of these orders on the Respondent
HusbandFather by email and by text message to any known mobile phone number.18.All costs of and incidental to this application be reserved.
19.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
20.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
21.There be liberty to apply on short notice to the Chambers of Judge O’Shannessy regarding any further issues arising from these orders.
22.That all outstanding applications are adjourned for mention and directions before Judicial Registrar Saidel on 23 June 2025.
AND THE COURT NOTES THAT:
A.The Respondent Father was, by order of this court and his own application, permitted to remove the children X & Y from the Commonwealth of Australia for the purpose of a holiday in Country C. The Respondent Father was required and had promised, that he would return both children on or before
early2025. The Respondent Father returned the child Y, but has detained the child X and has not returned that child to the Commonwealth of Australia.B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy
These are the settled reasons of a judgment delivered ex tempore pursuant to the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
Background
The matter of Baltu & Godoy comes before me at 2.15pm this day from an application of the applicant, Ms Godoy (‘the Mother’), against the respondent, Mr Baltu (‘the Father’), relating to the child, X (‘X’), who was born in 2014. The Mother had issued proceedings on 18 February 2025, and the proceedings were before the Court for a directions hearing on 23 February 2025, and then were referred to a further hearing before a judicial registrar of the Court this morning when, after the second appearance, the matter was listed before me this afternoon.
I am satisfied on the affidavits of service filed in the proceedings that the Father has had the opportunity to participate in the proceedings if he wished. It is unnecessary that I set out all of the circumstances. The further matter that indicates to me that the Father has had the opportunity to participate in these proceedings if he wished to, is the circumstance that on his application, as recently as 7 January 2025, court orders were made by consent. Those orders were, in turn, related to the previous final orders between the parties which provided for the living arrangements for the parties’ children. The parents have two children: Y (‘Y’), aged 15 years; and X, aged 10 years.
The parties married in 2006, and they separated in 2019. They were divorced in mid-2021.
Litigation
There have been several waves of proceedings between the parties. Final orders were made on 14 November 2022.
1.All previous parenting Orders relating to the children of the marriage [Y] born [in] 2009 and [X] born [in] 2014 (“the children”) be and are hereby discharged.
2.The parties have equal shared parental responsibility for the children, [Y] born [in] 2009 (“[Y]”) and [X] born [in] 2014 (“[X]”).
3. The children live with the Wife.
4. The children, [Y] and [X] spend time with the Husband as follows:
a.In week 1 of a fortnightly cycle, commencing 9 November 2022 and each alternate week thereafter from the conclusion of school (or 3:30pm) Wednesday until 10:00am Saturday;
b.In week 2 of a fortnightly cycle, commencing 16 November 2022 and each alternate weekend thereafter, from the conclusion of school (3:30pm) Wednesday until 4:00 pm Sunday;
c.During the school term holidays as agreed between the parties and in default of agreement, for one half of all school term holidays with [Y] and [X] to live with the Wife for the first half and with the Husband the second half, with changeover to occur on the middle day of the holiday period at 3:30 p.m.;
d.During the long summer holidays as agreed between the parties and failing agreement, on a week about basis, commencing with the Wife in week one, at the conclusion of school; and
e. As otherwise agreed between the parties in writing.
5.That paragraphs 9 to 10(e) be suspended and [Y] and [X] spend time with each parent on special occasions as follows and unless as otherwise agreed:
a. For the period from Christmas Eve to Boxing Day as follows:
i.In even-numbered years, from 9:00 a.m. on Christmas Eve to 1:00 p.m. on Christmas Day with the Wife and from 1:00 p.m. on Christmas Day until 6:00 p.m. on Boxing Day with the Husband; and
ii.In odd-numbered years, from 1:00 p.m. on Christmas Day until 6:00 p.m. on Boxing Day with the Wife and from 9:00 a.m. on Christmas Eve to 1:00 p.m. on Christmas Day with the Husband.
b.On [a religious event] after school (or otherwise 4:00 p.m. on a non-school day), until the commencement of school the following day (or otherwise 9:00 a.m. on a non-school day), with the Husband in even-numbered years and with the Wife in odd-numbered years;
c.On [Y] and [X]’s birthdays as agreed between the parties, and failing agreement, as follows:
i.If the birthday falls on a school day when [Y] and [X] are with the Husband, then from the conclusion of school until 6:00 p.m. with the Wife;
ii.If the birthday falls on a non-school day, when [Y] and [X] are with the Husband, then from 2:00 p.m. until 6:30 p.m. with the Wife;
iii.If the birthday falls on a school day when [Y] and [X] are with the Wife, then from the conclusion of school until 6:00 p.m. with the Husband;
iv.If the birthday falls on a non-school day when [Y] and [X] are with the Wife, then from 2:00 p.m. until 6:30 p.m. with the Husband.
d.On Father’s Day, [Y] and [X] shall spend time with the Husband from 6:00 p.m. on the evening immediately preceding Father’s Day, until the commencement of school on Monday (or 9:00 a.m. if a non-school day);
e.On Mother’s Day, [Y] and [X] shall spend time with the Wife from 6:00 p.m. on the evening immediately preceding Mother’s Day, until the commencement of school on Monday (or 9:00 a.m. on a non-school day); and
f.Such further or other times as may be agreed between the parties in writing.
…
7.That in the event that the parties are unable to care for [Y] and/or [X] for a period of more than 24 hours, that the resident parent provide the other party with first option to care for [Y] and/or [X] and provide 24 hours’ notice if practicable.
8.Both parties, their servants and agents, be and are hereby restrained by injunction from:
a.Abusing, assaulting, belittling, rebuking, or otherwise denigrating each other, [Y] and/or [X], or any of the parties’ respective family members to or in the presence of and/or hearing of [Y] and/or [X] and from allowing anybody else to do so;
b.Discussing these proceedings with, or in the presence and/or hearing of [Y] and/or [X], or any of them, and from allowing anybody else to do so; and
c.Showing to, or leaving accessible to [Y] and/or [X] any document connected with these proceedings;
d. Conveying messages through the children to the other party.
9.That the parents communicate about [Y] and [X] using the AppClose parenting App, or another similar App as agreed between them in writing.
10.That each party keep the other informed of their residential address and telephone number at all times and notify the other within seven days of any change to either their address or telephone number.
11.That each party shall notify the other as soon as possible of any illness or injury suffered by [Y] and/or [X] and any medical, dental, hospital or like treatment received by [Y] and/or [X] which occurred whilst [Y] and/or [X] were in the care of that party and the other party shall be at liberty to contact the doctor, dentist, hospital or other medical professional or like person who treated [Y] and/or [X] to make inquiries about the health of [Y] and/or [X].
12.That both parties be at liberty to approach the schools or educational institutions attended by each child to obtain copies of school reports, photographs, newsletters, notices, and the like and further each party shall be at liberty to attend parent teacher nights, school concerts, prize and special nights, sporting events and like school functions.
13.That each party be at liberty to attend all sporting and extra-curricular activities which [Y] and [X] may participate in.
14.That in the event that either parent has a significant or special event such as a family gathering, christening, wedding, or other special event that parent shall give notice to the other parent of their desire for [Y] and/or [X] to spend that time with them and attend the event and the parents may agree in writing by text message to vary the time that [Y] and/or [X] is to live with each of them so as to permit [Y] and/or [X] to attend the event and where variation of these orders is required then the parents shall arrange for make-up time.
Further orders were made on 5 September 2024, which provided (these orders were made by the consent of the parents) that, the Father was permitted to remove the children from Australia for a period from 23 September 2024 to 4 October 2024, but provided that the Father paid a $100,000 security to his lawyers’ trust account to secure his compliance with the orders.
1.The Father be permitted to travel to [Country C] with the children, [Y] born [in] 2009 (‘[Y]’) and [X] born [in] 2014 (‘[X]’) (collectively, ‘the children’) for a period of two (2) weeks during the school term holidays from 23 September 2024 to 4 October 2024.
2.In the event the children are already on the Family Law Watch List, the Court requests that the Australian Federal Police remove the names of the children:
(a) [Y] born [in] 2009; and
(b) [X] born [in] 2014
from the Family Law Watch List at all points of international arrivals and departures in Australia for the period 23 September 2024 to 4 October 2024.
…
6.The Mother will make the children’s passports and any visa documents required for travel available to the Father at least seven (7) days prior to any planned overseas travel by the Father with the children, and for the purpose of obtaining any visas for the children to travel.
7.The Father must provide the Mother with a detailed travel itinerary and contact details for the children while they are overseas at least three (3) days prior to travel.
8.The Father must facilitate communication between the children and the Mother while the children are overseas.
9.The Father will return to the Mother the passport, visa documents and the children’s documents in relation to travel within seven (7) days of the children returning from overseas travel.
10.Ten (10) days prior to travel, the Father pay $100,000 into the Joshi Lawyers Trust Account (‘Security Amount’).
11.In the event the Father fails to return to Australia with the children in accordance with these Orders, the Security Amount be released to the Mother.
12.Upon the Father returning to Australia with the Children in accordance with these Orders, the Security Amount be released to the Father.
The parents themselves were born in Country C and long ago migrated to Australia. The children, Y and X, were both born in Australia and are Australian citizens and, I am satisfied, were and are habitual residents in Australia. Pursuant to the orders of 5 September 2024, the Father took the children from Australia on or about 23 September 2024 and returned them on or about 4 October 2024.
Children living arrangements
The Mother deposes, and I accept, that the parties do not parent the children strictly in accordance with the existing court orders but as permitted by those orders, have agreed to different arrangements which, by agreement, they have facilitated over some considerable time. As the Mother puts it, in practice, she is the children’s primary carer and the children live with her and spend time with the Father for four nights each fortnight; that is, each weekend from Friday evening until Sunday evening. Holiday and special occasion time is equally shared. Hence, it is clear from those orders that it is the Mother that does the heavy lifting in a parental sense of getting the children to and from school, to and from medical appointments, and the like. The Father has the joy of caring for the children during the non-school time of the weekend.
Father’s circumstances
The Mother deposes, and I accept, that the Father has spent considerable time in Country C notwithstanding that he, by and large, lives in Australia and is an Australian citizen. The Mother deposes the Father owns property in Australia and, to that end, has tendered exhibit W1, which is the title search of the property known as Certificate of Title Volume … Folio …, also known by the street address of D Street, Suburb E, Victoria. That property is subject to a mortgage with the Commonwealth Bank of Australia. I have no knowledge of the state of that mortgage.
Child withheld in Country C
The Mother alleges, and I accept, that as contemplated by the 7 January 2025 orders, the Father removed X and Y to Country C. Y returned with a relative of the Father’s, but X did not.
On the evidence I have, the Father has not spoken to the Mother about his failure to return X, but has told Y to tell the Mother that he has not done so because it is the Mother’s fault, because when he comes back to Australia, he will be in trouble, and words to that effect including that he was agitated by the existence of what is known as the “airport watch list” order. As a result of what the Mother understood the Father had said to Y, notwithstanding the inaccuracy of it, the Mother then communicated with the police in an attempt to remove the airport watch list order and advised the Father of the same but, still, X did not return. On the Mother’s account, which I accept, X is distressed at not being returned to Australia to live with his sister Y and his Mother. On the Mother’s account, and I accept, Y is distressed and troubled that her brother X has not been returned to Australia to live with her and her Mother.
The Mother pressed a suite of orders essentially seeking that I issue what is known as a recovery order seeking that the Marshal, Deputy Marshal, and all officers of the Australian Federal Police and officers of the police forces of all the States and Territories of the Commonwealth of Australia find and recover the child X The Mother tells me that she intends to commence proceedings in Country C: I accept she has been told that upon commencing those (‘Country C’) proceedings, she should inform the legal authorities in Country C and/or the state where it is thought X would be of the existence of this recovery order and that the fact of the recovery order made here would assist her case in Country C to recover X. I hope that is so.
In the meantime, the Father returned Y, but did not return X. The Father’s solicitors, still on the record as a result of their application of 7 January 2025, have, in accordance with the order, provided the security sum of $100,000 to the Mother’s solicitors. As I understand it, the Mother intends and is entitled to have recourse to those funds as she needs to for the purpose of these legal proceedings and the legal proceedings in Country C. It is also my observation that in the event X was returned to Australia promptly, that the part of the $100,000 that has not yet been used up in legal proceedings would be returned to the Father, subject to any other application.
At the moment, on the information I have, I do not understand how the Father could act so irrationally or be so wealthy that he could afford to burn up AUD $100,000 merely because of his unhappiness with the Mother and/or X living in Australia.
I am told, and accept, that the Mother and the Father are both Australian citizens. Not only that, it would appear that both the Mother and the Father are habitually resident in Australia. The Mother is in employment here. The Father, I am told and accept, conducts a business in Australia.
Not only has the Father not returned X, as he said he would and was ordered by the Court to, but he simply provided no indication of when he would return X. All those circumstances are very troubling. I have a 10 year old child unilaterally separated from one parent and separated from his sibling. Further to that, on the information that I have from the Mother, the child X is not actually living with the Father in any event, but living with a relative of the Father. It is entirely unsatisfactory that the Mother has not been informed precisely of where the child is. Hence, on the information I have at the moment, it appears that the child X has been separated from both his Mother and his Father, and this has occurred at the tender age of 10 years. I note that under the existing orders that are still extant in Australia, that the Father has the right to have X live with him or to care for him for very considerable periods, and this was the practice of the parents up until 7 January 2025 as I have described.
Jurisdiction?
The first duty of a Court is to determine whether it has jurisdiction. I am satisfied that I have jurisdiction. I have looked at subdivision B of Part XIIIAA, Division 4 of the Act, and that is as follows:
Section 111CC Application of this Subdivision
This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:
(a) a central authority or competent authority of a Convention country;
(b) a competent authority of a non - Convention country.
Section 111CD Jurisdiction relating to the person of a child
(1)A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a) a child who is present and habitually resident in Australia; or
(b)a child who is present in Australia and habitually resident in a Convention country, if:
(i)the child's protection requires taking the measure as a matter of urgency; or
(ii)the measure is provisional and limited in its territorial effect to Australia; or
(iii) the child is a refugee child; or
(iv)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence; or
(v)a competent authority of the country of the child's habitual residence agrees to the court assuming jurisdiction; or
(vi)the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or
(c) a child who is present in a Convention country, if:
(i) the child is habitually resident in Australia; or
(ii)the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
(iii)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence or country of refuge; or
(iv)a competent authority of the country of the child's habitual residence or country of refuge agrees to the court assuming jurisdiction; or
(v)the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or
(d) a child who is present in Australia and is a refugee child; or
(e) a child who is present in a non - Convention country, if:
(i) the child is habitually resident in Australia; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child; or
(f) a child who is present in Australia, if:
(i)the child is habitually resident in a non - Convention country; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child.
(2)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.
(3)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if:
(a)one or both of the child's parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and
(b)one or both of the parents have parental responsibility for the child; and
(c)the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and
(d) the exercise of jurisdiction to take the measure is in the best interests of the child; and
(e)the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised.
(4)Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH.
It is clear that section 111CD(1)(e)(i) and (ii) is hinged off or dependent upon the provisions of section 69E(1)(b) to (e) of the Act. Those provisions are as follows:
Section 69E Child or parent to be present in Australia etc.
(1) Proceedings may be instituted under this Act in relation to a child only if:
…
(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
It is asserted by the Mother, and I accept, and I do not understand it to have ever been disputed that X is an Australian citizen and was ordinarily resident in Australia on the relevant day, being the day of the institution of the proceedings, that being 18 February 2025. The fact that contrary to a court order of the jurisdiction, X had not been returned to the jurisdiction 16 days earlier than the day that he was meant to, does not change his ordinary residence. Not only is the child an Australian citizen and ordinarily a resident in Australia, but each of his parents are Australian citizens and each of his parents are ordinarily resident in Australia, and his Mother is present in Australia or was present in Australia on the relevant day. In those circumstances, section 69E(1)(b), (c) and (d) are qualified.
In any event, I am not satisfied that the subdivision applies as there is no countervailing authority claiming jurisdiction to the exclusion of the Australian jurisdiction. I refer to and repeat the discussion of the law set out in Bellanger & Wemble [2023] FedCFamC2F 1246 (‘Bellanger’), noting that that discussion has only the authority of a judge of Division 2 of this Court, and the original decision relied upon in Bellanger itself lacked a contradictor.
66In regard to section 69E(1)(b), the children are Australian citizens. The older child, X, was not born in Australia but is an Australian citizen. The younger child, Y, is an Australian citizen. Hence, by reason of section 69E(1)(b), Ms Bellanger would have standing to issue proceedings unless otherwise determined that she would not. In terms of section 69E(1)(c) and 69E(1)(d), Ms Bellanger is an Australian citizen, Mr Wemble is an Australian citizen, and Ms Bellanger is ordinarily resident in Australia and would have been ordinarily resident in Australia on the date of the issuing of these proceedings, save for the children being forcefully removed from her care. I cannot see that section 69E(1)(e) applies. Hence, by reason of section 69E(1)(b), (c) and (d), Ms Bellanger is permitted to institute proceedings in regard to the children, notwithstanding that the children are not present in Australia on this day.
One issue in the authorities referred to was the conundrum that a Court of the Commonwealth of Australia cannot take judicial notice of the law of a foreign jurisdiction. The law of a foreign jurisdiction is a fact to be proven on the appropriate standard. That is, on the balance of probabilities, and on the basis of expert evidence. It is impermissible and contrary to law for a judge of this jurisdiction to make his or her own enquiries and fossick around on the internet to try and work out what the law of Country C is. And that is assuming that there is one law in relation to child custody for the whole of Country C, notwithstanding the many different states of that country.
However, I am not prepared to proceed on the basis that there would not be a competent central authority or a competent authority to deal with the issue of where X should live. Country C is the opposite of an obscure, unknown country. I am satisfied that I can find under section 144 of the Evidence Act 1995 (Cth) that I do not need evidence of the fact that Country C has a large population and that Country C has a high functioning government and legal system, and it is inconceivable that such a country would not have in place competent authorities to deal with where children live.
Nonetheless, there is no statement or position that the authorities of that country are in any way in opposition to this Court, in this case, dealing with the matter. In all of the circumstances, I am satisfied that there is jurisdiction to make the orders sought by the Mother. In addition to the orders sought in the minute, the Mother has gone further and sought an injunction restraining the Father from leaving the Commonwealth of Australia. That order should be until further order, rather than a permanent injunction. That order and the intention to apply for it has not been served upon the Father, and I regard that order as being made ex parte, that is, without notice to him.
Orders made
What would have been order 18, that is described as order 20 in the minute, was that there be liberty to apply on short notice, including to list the matter for mention. I am not satisfied that will accommodate the interests of justice, and there will be a liberty to apply on short notice by either parent by email to the Associates to Judge O’Shannessy to further deal with this matter in the event of any relevant event occurring.
The further order that was pressed by the Mother was related to the property at D Street, Suburb E. The title search to that property was tendered in evidence, and I am satisfied that is the same person (the Father) who is the sole registered proprietor and is the respondent to this application. The Mother pressed, after discussion with me, an order restraining the Father from disposing of, encumbering, or otherwise dealing with that property, and I am satisfied that it is in the interests of justice and the best interests of the child X to make that order. It would be a tragedy of justice if, having not returned X, the Father determined to remain in Country C and then attempted to convert that real property into money by selling it or dealing with it in some way.
In those circumstances, I am satisfied of counsel’s submissions that I should make an injunction restraining the Father from dealing with the property and that I should make an order that he do all acts and things to execute a charge to permit the Mother to lodge a caveat over the title to that property pursuant to the Transfer of Land Act 1958.
In the event the Father did not execute such authority, the Mother would be able to apply pursuant to the liberty to apply in these orders for some other person to execute that charge pursuant to section 106B of the Act. I am satisfied that it is in the interests of justice and of X that the Father charge all his right, title and interest in the property known as Certificate of Title … Folio … with the costs of the Mother of taking legal proceedings, including travel and accommodation expenses necessary to pursue legal proceedings in Country C and/or Australia. Of course, as a matter of common sense, that charge should only be called upon in the event of the security sum of $100,000 of the 7 January 2025 orders being used up or extinguished.
I repeat, it is my hope that all these legal proceedings will turn out to have been in vain and that the Father already has in train, or will shortly put in train, or has a current intention or will shortly have the intention to return X to the Commonwealth of Australia, where he was born and where he is a citizen. I also note, lest any authority be concerned, that the circumstance where the child Y has been returned to the Commonwealth of Australia, but not the child X, puts paid to any suggestion that the welfare of X could be a justification not to return the child to Australia as had been agreed by the court orders of 7 January 2025. That is, the consent orders of 7 January 2025 and the previous orders of the Court.
Put bluntly, it is overwhelmingly clear and transparent that the best interests of X are to resume living, and being educated, in the Commonwealth of Australia, as was his parents’ intention in formal court orders on a number of occasions, including the orders of 14 November 2022 and the orders of 5 September 2024 and the orders of 7 January 2025. I also note that this Court, whilst having personal authority and jurisdiction over the Father, does not have any authority in regard to any authority in Country C.
To the extent that these orders and reasons are relied upon by the Mother in Country C in an attempt to have X returned to Australia, I make it clear that these orders outside of Australia are a request to the authorities of Country C and of the relevant state of Country C, whichever that be. Hence, it is respectfully requested that the child welfare authorities, police, and courts of Country C lend their assistance if and when any of them can assist these orders consistent with the law of Country C and assist with the enforcement of this recovery order and with the reunification of the child X pursuant to the orders made in this Court on 14 November 2022 and 7 January 2025 (noting both of those orders were made by consent).
As discussed with counsel for the Mother, it is appropriate that all of these orders be brought to the attention of the Father. Further, the liberty to apply is intended to expressly permit him to apply in regard to the two orders that are made effectively ex parte of which he has not had notice of, that being the order or orders relating to the D Street, Suburb E property and the order restraining the Father from leaving Australia. I also point out that it appears that the Father is under a misconception in regard to the effect of the orders as they exist. There is no provision in these orders or any other orders for the Father to be arrested upon his return to Australia, and I wish to make that clear in these reasons.
Hence, I also want to make it clear that the purpose of these orders is to facilitate the early and urgent return of X to the country where he was born, and of where he is a citizen, and where he was being educated and to where he was not returned, as had been agreed and ordered on 7 January 2025. It is my request that the authorities in Country C take serious account of those unfortunate circumstances and/or the unfortunate circumstances where X has not been returned to Australia in accordance with the parents’ agreement and court orders and no explanation thereof has been received from the Father.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 13 March 2025
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