McConnell & Gordy
[2024] FedCFamC2F 1749
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McConnell & Gordy [2024] FedCFamC2F 1749
File number(s): PAC 5700 of 2024 Judgment of: JUDGE STREET Date of judgment: 5 December 2024 Catchwords: FAMILY LAW – PARENTING - application for an injunction under s 68B restraining the removal of the child from the Commonwealth of Australia - concern expressed for the welfare of the child - child has dual passports for both Country B and Australia – Country B is a Hague Convention Country – Court not satisfied that there is a real risk -Court declines to grant an injunction. Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 8 Date of hearing: 26 October 2024 Place: Sydney For the Applicant: The Applicant appeared via audio-link For the Respondent: The Respondent did not appear ORDERS
PAC 5700 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MCCONNELL
Applicant
AND: MS GORDY
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
26 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Court declines to grant an injunction under s 68B of the Family Law Act 1975 (Cth) against the respondent to restraint the removal of the child X (DOB: 2018) and declines to have the child placed on the Airport Watch List at this stage.
2.The applicant is directed to file an application for parenting orders under Part VII of the Family Law Act 1975 (Cth) and a supporting affidavit by 5pm on 5 November 2025.
3.The applicant is directed to serve the respondent by email and at her home address with the application and affidavit and a copy of these orders by 5pm on 7 November 2024.
4.The matter is fixed for directions commencing at 9:30 am on 11 November 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
5.The Court reserves its written reasons for the orders not made and procedural orders.
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).
REASONS FOR JUDGMENT
JUDGE STREET
This was an application for an injunction under s68B of the Family Law Act 1975 (Cth) (“the Act”) to restrain the respondent mother (“the mother”) from removing the child from the Commonwealth of Australia, being X, born in 2018. The Court listed the matter for an oral hearing commencing at 8 pm on Saturday night 11 October 2024. The applicant father (“the father”) informed the Court that the parties had commenced their relationship in 2016, and that the relationship broke down approximately four years ago.
The Court was informed that after the breakdown of the relationship, the parties remained living in the same place for six months and have been living at different addresses for the last three and a half years. The father identified that he is living only approximately a block away from where the mother lives and that they have been having fifty-fifty time in an informal arrangement, and that he last saw his son on 3 October 2024, and the child was due to be returned back to him on 10 October, which did not occur.
The father provided identity documents that have been marked exhibit 1, and provided a chain of text communications to which the Court has had regard in considering whether it is an appropriate matter in the best interest of the child, taking into account principles in pt 7 of the Act to grant an junction under s 68B of the Act. The father indicated, in those texts, and the texts support, that a concern was expressed for the welfare of the child by the mother and a suggestion of concern in relation to the father's parenting capacity involving drugs and that the mother had been in touch with child welfare. The father had also been in touch with child welfare to ascertain what may have taken place. The last communication from the mother identified an intention to communicate on the Monday 13 October 2024 in relation to the father's fear of the child being taken overseas. The father identified that four or five months ago, the mother made an observation that the father's passport had expired, so he would not be able to follow her to a different country.
The mother is a citizen of Country B, and the child has dual passports for both Country B and Australia. The mother has taken the child over to Country B on what was said to be almost every year, and the last two times have been without the father, the last time occurring at Christmas in 2023. The Court was informed that the mother does not own any property in Australia but was informed that the mother has been working as a support worker for approximately the last 12 months albeit, as a casual, according to the father. The text communications identify a potential temporary concern by the mother in relation to the safety of the child. The contact with child welfare is an unusual step to have taken if the mother held no concerns at all in relation to the safety of her child. The text communications do not support, at this stage, a prima facie case, together with the other material, to warrant the grant of an injunction restraining the mother from leaving the Commonwealth of Australia with the child.
In summary, the Court is not satisfied that there is a real and imminent risk, on the material, of the child being taken to Country B. The Court has also taken into account that Country B is a Hague Convention Country from which, if necessary, the Court could make orders for the return of the child. The Court has taken into account the paramount concern as to the best interests of the child under s60CA as identified in s60CC and the ability to issue short reasons under s69ZL.
In all the circumstances, the Court is not persuaded that there is a prima facie case of real risk to the child of being taken overseas, taking into account the principles in s 69ZN of the Act, the object in s60B, s95 and the best interests of the child, to warrant the grant of an injunction restraining the mother from taking the child overseas. The Court did, however, make procedural directions for the commencement of parenting proceedings by the father, allocating a file number to the matter. The Court pronounced oral orders requiring the father to commence proceedings under pt 7 of the Act on or before 5 o'clock on 5 November 2024, to be served by email and physically to the address of the mother before 5 pm on 7 November 2024 and to be returnable before this Court on 11 November 2024 at 9.30 am by video and audio link pursuant to pt 6, div6 of the Act.
The Court orally makes an order declining to grant an injunction. The Court also makes an oral order reserving its written reasons for the refusal of the injunction.
It is for these reasons the Court makes the above orders.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 5 December 2024
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