Faye & Lindsey
[2025] FedCFamC1F 307
•9 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Faye & Lindsey [2025] FedCFamC1F 307
File number(s): CAC 445 of 2024 Judgment of: GILL J Date of judgment: 9 May 2025 Catchwords: FAMILY LAW – PARENTING – where two children have been removed from the Commonwealth of Australia – international retention of children – return of children Legislation: Family Law Act 1975 s 60CC Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 9 May 2025 Place: Canberra Counsel for the Applicant: Ms Mary-Clare Kennedy Solicitor for the Applicant: Foster Johnson Family & Collaborative Lawyers Counsel for the Respondent: Ms Beth Morrisroe Solicitor for the Respondent: Unified Lawyers ORDERS
CAC 445 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LINDSEY
Applicant
AND: MS FAYE
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
9 MAY 2025
THE COURT ORDERS, UNTIL FURTHER ORDERS:
1.The mother shall doe all things required to effect the return of Y, born 2021, and X, born 2019 (the children) to Canberra in the Commonwealth of Australia by no later than 19 May 2025.
2.The above order forms an exception to Order 1 of 16 April 2025.
3.Upon the return of the children to Canberra in the Commonwealth of Australia the children shall live with the father and spend time with the mother as agreed between the parties or failing agreement as follows:
(a)In week 1, from the conclusion of school on Friday (or 3.00pm) to the conclusion of school on Monday (or 3.00pm); and
(b)In week 2, from the conclusion of school on Thursday (or 3.00pm) to 3.00pm on Saturday.
IT IS FURTHER ORDERED BY CONSENT THAT:
4.Following the return of the children to Australia, the mother and her servants and agents are restrained from removing or attempting to remove or causing or permitting the removal of the said children Y, born 2021, and X, born 2019 from the Commonwealth of Australia following their return to Australia.
5.It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the children Y, born 2021, and X, born 2019 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on that list for a period of two years following their return to Australia.
6.Following the children travelling back to the Commonwealth of Australia and within 24 hours of arriving in Australia, the mother do all things necessary to provide the children’s passports to the Canberra Registry of the Federal Circuit and Family Court of Australia (Division One), where the passports will remain in possession of the Court.
7.Within 30 days of the date of these Orders and without admissions, the father submit to hair collection through an accredited testing organisation for chain of custody hair alcohol testing (“the testing”) and for this purpose:
(a)The testing is to screen for alcohol (EtG);
(b)The testing is to cover a period of use of not less than nine (9) months;
(c)Collection is to be conducted by a qualified and certified collector;
(d)The testing is to be conducted at an approved laboratory, accredited to conduct hair testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory;
(e)Either head or body hair may be collected for the testing;
(f)From the date of these Orders until the sample is provided in accordance with these Orders, the father is restrained by injunction from cutting, bleaching, dying or otherwise removing (and allowing any other person to cut, bleach, dye or otherwise remove) his head and body hair;
(g)Within 48 hours of the date of these Orders, the father is required to make an appointment with his chosen testing organisation for the purpose of providing a hair sample for the testing and shall provide written notice to the mother’s solicitor of the full details of the testing organisation being attended;
(h)The father is to attend upon the testing organisation and submit to the supervised collection of a hair sample at the earliest available appointment time;
(i)The father is to meet the cost of the testing;
(j)The father cause a copy of his testing results to be provided to the mother’s solicitor via email within two business days of the results becoming available; and
(k)The father is at liberty to provide the testing organisation with a copy of these Orders.
8.Pursuant to s 68B of the Family law Act 1975 and without admissions the mother and the father are hereby restrained by injunction:
(a)Abusing, belittling, rebuking or otherwise denigrating the other parent, the other parent’s family or the other parent’s culture to, with or in the presence of the hearing of the children, or permitting any third party to do so; and
(b)Discussing these proceedings or the contents of any documents filed or intended for use in these proceedings to, with, or in the presence of the hearing of the children or permitting any other person to do so.
IT IS FURTHER ORDERED THAT:
9.The mother do all things necessary to facilitate an audiovisual call between the children and the father, to take place within seven days from the date of this order, and on a Wednesday or Saturday or as otherwise agreed by the parties.
10.Pursuant to s 62G of the Family Law Act 1975 (Cth), the parties and Y, born 2021, and X, born 2019, (‘the children’) are directed to attend with a Court Child Expert (practicing under their appointment as a Family Consultant) nominated by the Court Children’s Service (‘the Court Child Expert’) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
11.Part 1 of the event will occur by video, using Webex, on 18 June 2025 with:
(a)the Applicant to attend at 9.00am; and
(b)the Respondent to attend at 10.30am.
Webex links will be provided to the parties by the Court Child Expert prior to the event.
12.Part 2 of the event will occur in person at the Canberra Registry on the morning of 19 June 2025.Specific details regarding the attendance of the parties and the children on this date will be provided to the parties in Part 1 of the event.
13.Each party will do all things necessary to ensure the child/ren attend upon the Court Child Expert pursuant to s 62G(3A), unless otherwise determined by the Court Child Expert that s 62G(3B) applies.
14.The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
15.Not later than 4.00pm on 16 May 2025 [7 days after Orders] the parties must provide their contact telephone numbers and email addresses to…@....
16.Pursuant to the above Order, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child/ren and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
(d)the impact of the issues/dispute before the Court on the child/ren;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child/ren.
17.Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.
18.The Court Child Expert shall be at liberty to inspect any material filed by the parties, any material produced by the Court in the current or related proceedings, and any material produced to the Court by way of subpoena of s 67ZBE.
19.The matter is listed for directions for filing of material before Judicial Registrar Hiles at 11am on 2 July 2025.
20.The matter is listed for interim defended hearing at 10am on 17 July 2025 in the Canberra Registry of the Federal Circuit and Family Court of Australia – Division 1.
21.The interim defended hearing is an in-person listing.
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
GILL J
These proceedings involve the interim parenting arrangements for the parties’ two children, X, aged 6, and Y, aged 4, residents of Australia, in circumstances where the mother has, without the agreement of the father, retained the children in Country B, and then moved the children to Country C.
Prior to the retention, the children lived in a shared care arrangement in Australia, with the parents jointly holding parental responsibility.
Having removed the children to, and then retained the children in Country C, the mother now consents to orders that she return the children to Australia on a date in mid-2025. In contrast the father seeks that the children be returned forthwith and, in any event, within seven days.
The parents are also in dispute as to the arrangements for the care of the children following their return to Australia, although each accepts that the children should spend significant and overnight time with the other parent.
Principles
The issue as to the timing of the children’s return and their living arrangements on their return is to be determined by the children’s best interests. No part of the determination can be based on a notion of punishment of the mother for the international removal and retention, although the facts relating to this are relevant in determining what is in the children’s best interests.
Those best interests are to be determined on a consideration of the matters set out at s 60CC, in circumstances where neither party presented a case suggestive that the other parent constituted a risk of harm to the children.
Section 60CC is as follows:
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
Additional considerations—right to enjoy Aboriginal or Torres Strait Islander culture
(3) For the purposes of paragraph (1)(b), the court must consider the following matters:
(a) the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(iii) to develop a positive appreciation of that culture; and
(b) the likely impact any proposed parenting order under this Part will have on that right.
Consent orders
(4) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Key amongst those considerations are those relating to the psychological and emotional needs of the children, the capacity of each of the parents, and the benefit of the children in having a relationship with each of the parents.
Circumstances
Prior to the commencement of their relationship in 2018 the mother lived in Country C, the father in Australia. In mid-2018 the mother moved to Australia and the parties commenced living together.
The parties have two children, X, born in 2019 and Y, born 2021.
The parties separated on 13 March 2022.
During, and following the end of the relationship the mother was the primary carer of the children. Following separation the children spent regular overnight time in the care of the father.
Toward the end of 2024 the mother sought to travel to Country B with the children, in part to visit relatives.
After obtaining consent from the father to travel with the children to Country B for a period in early 2025, the mother failed to return the children to Australia, travelling in early 2025 to Country C with the children, where she and the children remain.
The circumstances of the travel to Country B and Country C are significant.
In about May 2024 the mother raised the prospect of the children studying in Country C in 2025. No agreement was reached.
Subsequently the mother sought the father’s agreement for travel to Country B for Lunar New Year. The father agreed to travel taking place and on 28 December 2024 asked the mother to provide the details of the travel. The mother did not then provide the travel details. The father made further requests for the travel details on 4, 6 and 7 January. The mother did not then provide the details, at which stage the father told the mother that he would retain the children pending the provision of those travel details and a relevant assurance that the mother would return the children to Australia.
The father discovered that the accommodation that the mother had been living in was advertised for rent, indicating that the mother had relinquished the accommodation.
The parties argued regarding this, and the mother collected the children from the father.
Ultimately, following correspondence from the father’s lawyers, the mother provided a written undertaking dated 9 January 2025 to return the children to Australia on or before 4 February 2025. On 13 January 2025 the mother also provided pictures of the tickets for the return flights procured for the children. The mother also advised that she had obtained alternate accommodation in Canberra Australia following the return from Country B. With the consent of the father the mother then removed the children in early 2025 for a short visit to Country B.
Following the removal of the children from Australia the mother provided only two opportunities for the father to contact the children by WhatsApp.
On 20 January the mother received a settlement of property in the sum of $200,000.
The mother deposes that on 30 January 2025 she formed the intent to take the children to Country C.
On 31 January 2025 the mother messaged the father advising that she had lost her accommodation in Canberra, and asked to extend the visit in Country B with the children. The father did not agree to the retention of the children in Country B and offered both for the children to stay with him on their return, and to assist the mother to find short term accommodation. The father explained that it was necessary for the children to commence the school year.
On 3 February the mother told the father that she had rebooked the Country B tickets. On 6 February the mother told the father that she was planning to return to Australia.
A short time later, the mother travelled to Country C with the children.
In response to further query from the father as to the return of the children to Australia, on 14 February the mother told him that she was ill and the children had been with their cousins (implicitly in Country B).
The father sent multiple messages and emails pursuing the return of the children to Australia, and seeking to have their whereabouts confirmed on 16, 17, 20, 24, 26 and 27 February. By 1 March the mother had still not informed the father that the children were in Country C. The mother then continued to withhold this information.
The mother declined the father the opportunity to speak with Y in early 2025.
Suspicious that the mother may have removed the children to Country C, the father made enquiries of schools in the area of City D, discovering that attempts had been made to enrol them there.
The father made application to the Australian Central Authority which has accepted the case and has referred it to the Country C Central Authority.
Scope of the dispute
The mother initially resisted orders for the return of the children, but has subsequently agreed for orders to be made for their return between in mid-2025, and for the mother to provide a $30,000 bond as security for such.
On her return the mother proposes the children continue to live primarily with her but spend four nights per fortnight in the care of the father. It is sought that this occurs in the following manner:
(1)In week 1, from the conclusion of school on Friday (or 3.00pm on a non-school day) to 9.00am on Sunday; and
(2)In week 2, from the conclusion of school on Thursday (or 3.00pm on a non-school day) to 9.00am on Saturday.
The father proposes that upon the return of the children, they should live primarily with him but spend time with the mother, in the following manner (assuming she returns to the Canberra region):
(1)In week 1, from the conclusion of school on Friday (or 3.00pm) to the conclusion of school on Monday (or 3.00pm); and
(2)In week 2, from the conclusion of school on Thursday (or 3.00pm) to 3.00pm on Saturday.
The parties otherwise agree for orders to be made regarding the retention of the children’s passports by the court, and for the children to be placed on the Airport Watch List.
Discussion
The conduct of the mother in firstly the retention of the children in Country B, then the removal of the children and retention in Country C, the deception perpetrated, and the failure to either disclose the whereabouts of the children or to enable the children to have adequate access to the father is sufficient to cause grave doubt as to the bona fides of the mother in her assertion that she will return the children to Australia. Given those features, that doubt is not effectively assuaged by the mother’s offer of a $30,000 bond. The prospect of the mother further retaining the children beyond the agreed date, even if supported by the orders is a risk of significant magnitude.
This uncertainty points to the need for a prompt order for return to reduce the overall risk of delay, and to avoid the inability to take further steps until a further month has passed if orders are made as sought by the mother.
While the mother urged that the delay will enable the children to complete the school term, it may be observed that there is almost no evidential material to indicate the children's current circumstances, or of the degree to which they are settled in and benefitting from their current school, beyond assertion made by the mother. In the absence of cogent evidence to demonstrate benefit to the children in further delay, such matters do not bear weight.
Further, the avoidance of delay should also be prioritised given the significant period of time that has now elapsed since the children spent face to face time with their father, of an order of approximately four months. Due to the lack in the mother’s evidence there is no information as to what the children have been told about this delay. In the absence of the mother facilitating proper contact with the children during this period there is no reason for any confidence that the mother has supported the relationship between the children and the father during this period.
To allow the current circumstance to potentially become even more entrenched is not in the children's best interest and should be drawn to a close as soon as practicable.
Accordingly, to support the children’s emotional and psychological needs in the support of their relationship with their father, who has been a significant carer of the children, orders should be made for the children’s return in a manner that approximates the father’s application. However, given the magnitude of the move, the orders will provide for a period of ten days to return as a reasonable approach.
That leaves the issue of the children’s living arrangements on their return. That determination will sit in a context of a short period of time before the matter returns to the court for further consideration of the living arrangements, and for the preparation of a Child Impact Report. The effect of such is that whatever arrangements are in place will only be in place for a short period before further review takes place based on the circumstances as are then before the court.
The father’s proposal should be accepted as in the best interests of the children, at least in the short term. Providing for the children to live primarily with the father for a short period provides potential amelioration for the period that they have now gone without him, and provides the children with a strong basis for having confidence in their relationship with the father, and to minimise the risk of undermining by the mother. In the circumstances where the children have now been separated from the father for about four months, and where the explanation for such as may have been given by the mother to the children is not apparent, the best available antidote is the children’s experience of the father’s care of them. It should be noted that while he has not been the primary carer in the past, he has provided significant care for the children in the past, and even on the mother’s proposal he will continue to do so.
Whilst the father will have work commitments, it will be incumbent upon him to arrange his affairs to give priority to the children’s arrangements, a circumstance that it appears that his employer is at least sympathetic toward.
Given that the mother appears to have lost her Australian accommodation, but appears to be, at present, well-funded, these arrangements will also free the mother up to pursue the securing of appropriate accommodation, and putting in place her practical arrangements, upon her return.
Conclusion
Orders will be made for a return of the children within ten days, with a single period of contact with the father pending their return. On their return the children will primarily live with the father, but spend five nights per fortnight with the mother before the matter returns for further consideration at the end of June. In the meantime a Child Impact Report will be prepared.
Ancillary orders largely as agreed by the parties will also be made.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 9 May 2025
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