Molnar & Ferrer
[2024] FedCFamC2F 1419
•19 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Molnar & Ferrer [2024] FedCFamC2F 1419
File number(s): MLC 5925 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 19 September 2024 Catchwords: FAMILY LAW – Parenting – Urgent application for international recovery order – Where mother has taken child overseas without notice to father – Where mother appears to have no intention to return to the Commonwealth of Australia any time soon – Decision to proceed in absence of mother – Decision to proceed ex parte – Recovery order made – Where recovery order pressed in form of a request, not as a demand or in any way interfering or usurping the courts and authorities of overseas jurisdiction. Legislation: Evidence Act 1995 s 140
Family Law Act 1975 (Cth) ss 60CC, 69E 111CC,
Cases cited: Bellanger and Wemble [2023] FedCFamC2F 1246 Division: Division 2 Family Law Number of paragraphs: 39 Date of hearing: 19 September 2024 Place: Melbourne Counsel for the Applicant: Mr Taghdir Solicitor for the Applicant: Maeve O’Brien & Associates The Respondent: No appearance ORDERS
MLC 5925 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MOLNAR
Applicant
AND: MS FERRER
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT DECLARES THAT:
1.X born in 2020 (‘X’);
(a)is an Australian Citizen; and
(b)was ordinarily a resident in Australia on the relevant day being the day these proceedings commenced; and
(c)on the relevant day was habitually a resident of Australia.
2.MR MOLNAR born in 1987 (‘the Father’);
(a)is a parent, the father of X; and
(b)is an Australian citizen; and
(c)is and was an ordinary resident of Australia; and
(d)is ordinarily a resident in Australia on the relevant date being the day these proceedings commenced.
3.Ms FERRER (also known as MS FERRER) born in 1987 (‘the Mother’);
(a)is a parent, the mother of X; and
(b)was a permanent resident of Australia; and
(c)from at least 2018 until, at least, early 2024 was ordinarily an Australian Resident; and
(d)was ordinarily a resident of Australia on the relevant day being the day these proceedings were commenced.
THE COURT ORDERS THAT:
4.X live with the Father.
5.The Father be and is responsible for sole decision making on major long-term issues, including the care, welfare, and development for X.
6.The child’s time with the Mother and/or the time that X lives with the Mother be determined as soon as practical and on an emergency basis upon the recovery of X pursuant to these orders.
Recovery order
7.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 and to deliver the child to the applicant Father at such place as the Father and the person effecting such recovery agree to be appropriate; 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.
(c)to arrest, without warrant, the Mother in the event the Mother attempts to take possession of the child.
8.It is respectfully requested that the:
(a)Family Courts in City B, City C and City D;
(b)The Ministry of Foreign Affairs, Country E;
(c)The Australian Office City B;
(d)The Australian representative to Country E (Mr N);
(e)The High Court of Country E;
(f)Country E Court; and
(g)City B District Court
(a)-(h) above are referred to as (‘the Country E Authorities’)
lend their assistance, if they or any of them can assist consistently with the law of Country E, with the enforcement of this recovery order (Order 7 herein), and the reunification of the Father with the child pursuant to the orders made in this Court.
9.The Father be granted leave to approach the Court to seek an urgent hearing on short notice in the event of either the recovery of the child or further circumstances that may aid or assist the recovery.
10.IT IS DIRECTED that the Father and/or his Solicitors provide a copy of these Orders to any of the Country E Authorities and/or any Australian Government Department Authority or Police Force.
11.And the Mother is ordered to immediately return the child to the Father’s care.
Service
12.As soon as possible and in any event within 5 days from the date of these Orders, the Father will serve the Mother with a sealed copy of these Orders by email at: …@....com.
Airport Watch List
13.Both parties servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the child X born in 2020 from the Commonwealth of Australia. This order ceases to have effect 2 years after the date on which it is made.
14.The Court requests that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watch List in force at all points of international arrival and departure in the Commonwealth of Australia and maintain the child’s/children’s name/s on the Family Law Watch List for the said period, until the Court orders its removal, or with the consent of all parties. This order ceases to have effect 2 years after the date on which it is made.
15.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
16.Upon expiration of the period referred to in Order 12 above and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List.
Other Orders
17.Within 12 hours from being served with a copy of these Orders, the Mother must return (or cause the return of) all current passports held in the child’s name (including the child’s Australian and Country E passports) to the Father.
18.The Mother, her servants or agents be and are hereby restrained by injunction from removing the child from the state of Victoria in the Commonwealth of Australia.
19.The Mother, her servants, or agents, be and are hereby restrained from removing or causing the removal of the child from the care of the Father, upon any breach of which that person may be arrested without warrant.
20.The Father be at liberty to provide a copy of these Orders to any individual or organisation requiring these Orders in an official or professional capacity (both in Australia and overseas including Country E) to effect the Orders made by this Court, including the recovery order.
21.The Father be at liberty to provide a copy of these Orders to any childcare centre, school, contract service, or extra-curricular activity/service provider attended by the child, to any medical practitioner or other health professional treating the child or to any other appropriate third party requiring it in an official and/or professional capacity.
22.Both parties, their servants and/or agents be and are hereby restrained:
(a)From abusing, belittling, insulting, rebuking, or otherwise denigrating the child, each other, or any family members of each other, to or in the presence or hearing of the child and from permitting any other person to do so; and
(b)From discussing the Court proceedings with or in the hearing of the child.
AND THE COURT NOTES THAT:
A.The Mother was called outside the court to no avail. It is believed that the Mother is currently residing in Country E with X since early 2024.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 Annexure A and these particulars are included in these orders.
C.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.
D.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.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.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).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of 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 Molnar & Ferrer comes before me on 19 September 2024. Mr Molnar, the applicant father (‘the Father’) is aged 36 and lives in the City G region of the state of Victoria in the Commonwealth of Australia, and his occupation is a tradesperson. He is employed by by a local business and has been employed there for many years. The Father commenced these proceedings on 21 May 2024.
The Father lived as a couple in a genuine domestic relationship from 2016 until 2 May 2022 – albeit with some periods of separation – with the respondent mother, Ms Ferrer (‘the Mother’), also known as Ms Ferrer. Mr Molnar and Ms Ferrer are the parents of X (‘X’), who was born in 2020. The Father seeks orders that X live with him, and what is known as a recovery order requiring the police authorities in Australia to find and take possession of X.
The Mother was born in 1987 in Country E and is 37 years old. The Father believes she is in good health. The Mother migrated to Australia in around 2014 on a working visa. In 2016, she applied for and obtained, a change in her visa status to that of a study visa. The Mother then commenced studying. Arising from the law of the Commonwealth of Australia and the status of living together as a couple in a genuine domestic relationship, the Mother was able to obtain a partner visa as a result of her relationship and cohabitation with the Father in 2018 or thereabouts. The Mother became an Australian permanent resident on her own application in mid-2020. Throughout the whole of the parties’ relationship, they lived in regional Victoria or regional New South Wales. For a short time, the parties lived in regional New South Wales in 2018/2019, but almost all of the relationship has been with the Father and the Mother living in regional Victoria and in the City G area.
Whether to proceed in the Mother’s absence
The first question I must determine is whether it is appropriate to proceed in the absence of the Mother. The Mother was called today outside the court and there was no response. The Father has sworn a number of affidavits, including his affidavit of 7 August 2024. And by reference to that affidavit, I am satisfied that the Father’s solicitors have gone to much trouble and effort to ensure that the proceedings have been brought to the attention of the Mother, and to give her the opportunity to participate if she chose. I refer to and repeat paragraph 7 of the Father’s affidavit of 7 August 2024:
7. I have instructed my solicitor, Mr Arthur James Athan of Maeve O'Brien and Associates (my solicitor), to effect substituted service of my sealed Court documents and a copy of the Orders on my behalf upon the Mother as follows:
a. On Friday 2 August 2024 at 8:35am, my solicitor sent an email to the Mother's last known email address […] with an attached letter to her as well as a link containing the enclosed documents referred to in the letter.
Annexed and marked with the letters "[MRM]-00l"is a true copy of the email.
b. On Friday 2 August 2024 at 8:45am, my solicitor sent several text messages to the Mother's last known mobile number with an attached letter to her as well as a link containing the enclosed documents referred to in the letter.
Annexed and marked with the letters "[MRM]-002" are true copies of screenshots of the text messages sent.
c. On Friday 2 August 2024 at 8:52am, my solicitor sent several text messages to the Mother's [messaging] account linked to her last known mobile number with an attached letter to her as well as a link containing the enclosed documents referred to in the letter.
Annexed and marked with the letters "[MRM]-003" are true copies of screenshots of the messages sent.
d. I have not been unable to locate or access the Mother's current [social media] profiles. I believe that the Mother has blocked me.
e. On Friday 2 August 2024 at 8:56am, my solicitor sent several text messages to the last known mobile number of the Mother's eldest sister, [Ms H], who lives in Perth, Australia ([Ms H]). My solicitor provided an attached letter to her as well as a link containing the enclosed documents referred to in the letter.
Annexed and marked with the letters "[MRM]-004" are true copies of screenshots of the text messages sent.
f. On Friday 2 August 2024 at 8:58am, my solicitor sent several text messages to the last known mobile number of the Mother's brother-in-law, [Mr K], who lives in Perth, Australia and who is married to [Ms H] ([Mr K]). My solicitor provided an attached letter to her as well as a link containing the enclosed documents referred to in the letter.
Annexed and marked with the letters "[MRM]-005" are true copies of screenshots of the text messages sent.
g. I am aware that [Mr K] regularly uses his mobile number. [In July] 2024, I sent the following text message to [Mr K]:
"Can you please let me know that my son is ok after the [storm]?"
[Mr K] responded to my text message with the following message:
"I believe so. I haven't heard anything, so I assume everything is fine."
[Mr K] subsequently stopped providing any further responses to me.
Annexed and marked with the letters "[MRM]-006" is a true copy of a screenshot of this text message exchange.
Also in evidence before me is the affidavit of Ms L. Ms L is and was a friend of the Mother’s. Ms L’s former partner was a friend or associate of the Father, and in the context of that relationship, Ms L spent considerable time, from time to time, in the company of the Mother and came to know her as a friend. Ms L has known the Mother since 2016, and following the end of the relationship between the Mother and the Father on or about 2 May 2022, Ms L maintained connection via electronic communication with the Mother. It is unnecessary to refer to all of the communications between the Mother and Ms L, but the communications on 3 August are significant to me. 3 August 2024 is the day after the Father’s solicitor first sent Court documents by email to the Mother. I refer to paragraph 20 of Ms L’s affidavit of 12 September 2024 which is as follows:
20. On 3 August 2024, I sent another message to [Ms Ferrer]. [Ms Ferrer] sent me a message in response. We then engaged in a brief text message dialogue between 12:28pm to around 3:51 pm AEST as follows:
[Ms L]: "Hey I'm worried about you, I haven't heard back? Are you ok?"
[Ms Ferrer]: "Hi [Ms L]. sorry for replying late. we are good. I didn’t 'I tell you before me and [X] are in [Country E] now since […]. And I will never go back to Aus. It's was my pleasure to meet you and you two boys."
[Ms L]: ''Oh wow that's a big move! Im so sorry you guys won't be back, but as long as you are ok. I was just worried!! Are you happy to be home with your family after so long? Thank you for replying, let me know if I can do anything for you or even [Ms H] xx"
[Ms Ferrer]: "Yes I’m happy with my family. But [Mr Molnar] want me to go to the court. Only if I go back to Aus. But I not worry about it too much because when 1 planned to go back 1 did asked the lawyer"
[Ms L]: ''And make sure you keep in touch with photos so I can see little [X] grow up, I'll do the same and send updates of me and the boys.”
[Ms L]: "Oh so sit got a bit messy with [Mr Molnar] did it? Does he know you have left the country?" [sic]
[Ms Ferrer]: "Yes he knows. He is a asshole." [sic]
[Ms L]: ''Oh wow! I’m sorry. Does he still talk to [X] or no contact?"
[Ms Ferrer]: "No I won't let him do anything with my son."
[Ms L]: ''That's fair. You said you were seeing someone at Easter, a new boyfriend? Did he go with you? Me and my new boyfriend are going well."
[Ms L]: "What time is it where you are?"
[Ms Ferrer]: "Good to hear from you. [Ms L]<3"
[Ms L]: "So good to hear from you too <3 keep in touch and stay safe xx"
Annexed and marked with the letters "[MSL]-002"is a true copy of screen shots of the messages between [Ms Ferrer] and I on 3 August 2024.
(emphasis added)
I took evidence from the Father this day as to the reliability of the assertion that the email address known as …@... was in fact the Mother’s email address, and available to her. Counsel for the Father tendered to me exhibit F1, which is an example of the email communication forwarded by the Mother to the Father, as he assisted her with various matters, including accommodation from time to time. F1 shows an email on 16 June 2023 from a real estate agent or accommodation organiser to the Mother, and that email being forwarded three days later to the Father. The Father gave sworn evidence before me today that the only email address that he knows of the Mother using was this email address, and that he has received and sent emails to the Mother on many occasions over the years.
I also took further sworn evidence from Mr Athan, the solicitor for the Father. Mr Athan told me, and I accept, that there was no indication of that email address no longer being in operation. There was no communication back from the email server that the email message had been not received or was “undeliverable”, or any communication at all. I am satisfied that the circumstance of sending an email to that address, because of the ubiquitous nature of that server and the reliability of it, that I can be satisfied that I do not need further evidence that the circumstances of the email being sent to that reliable server and there being no response means I can be satisfied that that email was received by the Mother. I am able to take notice of that without further evidence because that is a matter of general knowledge, and I can take notice of that pursuant to section 140 of the Evidence Act 1995.
The emphasised part of the communications between Ms L and the Mother recited above, coming the day after the Father’s solicitor has emailed documents alerting the Mother to this court case, satisfy me that these proceedings have been brought to the Mother’s attention and that she has had an opportunity to participate, and satisfy me that it is appropriate that I proceed in her absence.
Whether to proceed undefended
The next question I need to determine is whether I should determine this matter on an undefended basis. That is, only having regard to what the Father says. I have regard to not only what the Father says, but also to what the Mother has told Ms L about her opinion of the Father. The Mother describes the Father in a one-word derogatory term. I am satisfied that that communication was genuine, and that the Mother now has a poor regard for the Father. But significantly, the Mother, by not participating in the proceedings, has simply made it impossible for me to consider further her side of the story. In the circumstances where she has been given notice of the proceedings, and the Father has attempted to bring the proceedings to the Mother’s notice, I am satisfied it is appropriate to proceed undefended. That is, by having regard to the sworn evidence of the Father.
I note that apart from the email communication, attempts have been made to have the proceedings brought to the Mother’s attention via Facebook, or the service known as Facebook. The Father has also attempted to communicate with the Mother’s sister, who resides in Perth, and with her partner, Mr K. I am satisfied that the Father has done all that he possibly could to ensure that the Mother could, if she wishes, participate in these proceedings.
SUBSTANTIVE CASE
I now turn to the merits of the case. The first duty of a court is to determine that it has jurisdiction. The circumstances of this case appear to demonstrate reliably that on or about early 2024, the Mother left Australia and travelled to Country E, the country of her birth, without notice to X’s other parent, the Father. The Father seeks an order that X lives with him, and that the authorities of Australia recover X if they are able to. I refer to section 69E of the Act, which is 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:
(a)the child is present in Australia on the relevant day (as defined in subsection (2)); or
(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.
I am satisfied that the circumstances of section 69E(1)(b), (c) and (d) are satisfied. I also need to consider section 111CC of the Act, which provides 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.
Significantly in this case, I am assisted by expert evidence as to the law of Country E. Ms M is a lawyer practicing in Country E since 2011, and the director of the Country E Family Law Association, and a fellow of the International Academy of Family Lawyers. Apart from that qualification, the text and content of her letter of advice exhibited to the Father’s affidavit of 12 September 2024 at [MRM]-003 has a compelling verisimilitude about it that satisfies me that Ms M is an appropriate expert to assist me as to the law of Country E.
The law of the Commonwealth of Australia is that the law of a foreign country is a matter of fact to be proved by expert evidence, and not by an Australian lawyer or judge fossicking around, trying to work out what the law is themselves. I am assisted by Ms M advising as follows:
Besides obtaining a Court Order in [Country E], [Mr Molnar] can also obtain an order by Australian Family Court and enforce in [Country E].
There is the legal mechanism to apply for the recognition and enforcement of final judgments rendered by foreign courts in [Country E]. The party who gets the final foreign judgment, injunction or order can file the suit to recognize the foreign court's final judgment, injunction or order as not violating the provisions of Article 402 of the Code of Civil Procedure and Article 49 of the Non-litigation Matters Act.
After [Country E] court recognize the judgment, injunction or order, the parent can enter into the enforcement procedure. To avoid causing excessive emotional reactions in minors, [Country E] courts generally do not directly proceed with forced enforcement at beginning. The court will request the parent who has the obligation to obey the judgment automatically. If a parent who has the obligation rejects the enforcement order, the court can impose heavy fines, and ultimately, the forced enforcement will still be carried out.
However, when executing the delivery of a child, the court must consider the provisions of Family Act […]. And due to the [Country E] Court Judgment […] which emphasized that children shall have the opportunity to express their views, it is necessary for the minors to express their views to the family judges directly andthe court shall consider the views of minors.
Therefore, if the foreign court didn’t inform the minors to attend the court hearing to express their views to the judges directly, it may be deemed as violating the constitutional protection of the personality rights and human dignity of the minors which might be contrary to [Country E]’s public policy or morals, thus fail to be recognized and enforced in [Country E] according to […] the Code of Civil Procedure and […] the Family Act.
Thus, I would suggest to both obtain a parenting order in Australian family court and apply for custody lawsuit in [Country E] since there will be no conflict to do so. If the order from Australian Family Court is made while custody lawsuit in [Country E] are ongoing, it may also act as a strong evidence which the judges' choices could be based on, and alleviate the possibility of being contrary to [Country E]'s public policy or morals as mentioned before.
It is common ground that Country E is not a party to what is known as the Hague Convention, where there is an almost automatic mutual recognition of residence orders relating to children between countries that are parties to that convention. I note the form of the recovery order sought by the Father, which is set out in his outline of case as follows:
Recovery Order
3. Pursuant to Section 67Q of the Family Law Act 1975, a Recovery Order issue authorising and directing the Marshall, 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] 2020 and to deliver the child to the Applicant Father at such place as the Father and the person effecting such recovery agree to be appropriate;
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 may be found; and
c. to arrest, without warrant, the Mother in the event that the Mother attempts to take possession of the child.
4. It is respectfully requested that the:
a. Family Courts in the District Courts of [City B], [City C], and [City D]; and
b. The Ministry of Foreign Affairs, ([Country E]); and
c. The Australian Office [City B]; and
d. The Australian representative to [Country E] (Mr [N]); and
e. The High Court of [Country E]; and
f. The Supreme Court of [Country E]; and
g. The [Country E] Court and
h. The [City B] District Court.
i. (a-h) above are referred to as “the [Country E] Authorities.”
lend their assistance, if they or any of them can assist consistently with the law of [Country E], with the enforcement of this recovery order (Order 3 herein), and the reunification of the Father with the child pursuant to the orders made in this Court.
5. The Father be granted leave to approach the Court to seek an urgent hearing on short notice in the event of either the recovery of the child or further circumstances that may aid or assist the recovery.
6. The parties are at liberty to provide a copy of these Orders to any of the [Country E] Authorities.
The Father deposes, and I accept, that the parties ended their relationship of cohabitation on 2 May 2022, when he demanded that the Mother not return to the property where he resided. On that day, the Mother obtained a family violence order against the Father, where he was the respondent. The family violence order that the Mother obtained against the Father was finalised in mid-2022, and that order continued for two years until mid-2024, when it expired.
In mid-2022, the Mother made application to the local court with the authority to deal with the matter to vary that order, to permit the Father to assist her in the care of X. As a result of the order made, the local police had ensured that X was placed in the care of the Mother that day, and he had remained there since. I refer to the following paragraphs of the Father’s affidavit of 12 September:
26. [In mid] 2022, the Mother made an Application for Variation of the Final Order. On the Application, the Mother stated:
“I seek to have the Order varied to allow the Respondent to have contact with me when I need assistance.”
“The Respondent is my former partner, we have a son together who will be turning two years old soon. I am requesting to vary the current intervention order so the Respondent can do things with our son such as spend his birthday with us and help with things such as applying for a passport. I would like for us to all be able to spend time together. As the Respondent is my only family in Australia I would also like to have contact with the Respondent when needed so he can assist me with day to day issues when they arise. Since the Order was put in place, there have been no breaches of the Order and I feel like the Respondent's behaviour has changed. We are both engaged with services and the Respondent has been ordered to complete a Men's Behaviour Change Program.”
27. In response to the Mother's Application to Vary the Intervention Order, condition 5 of the Final Order was removed ('Contact or communicate with a protected person by any means'). The varied Final Order was made [in mid] 2022. I again consented to the Order without any admission of the Mother's allegations made against me. True copies of the Application to Vary an Intervention Order and the Final Order made [in mid] 2022 are annexed to my Initiating Application filed herein.
28. The Final Order expired [in mid] 2024. The Mother did not report me for any breaches of the Intervention Order to date.
As part of the local court family violence intervention order proceedings, the Father was represented by a lawyer and the Mother was represented by a lawyer. Those lawyers negotiated about X’s care or living arrangements. It was agreed that X would live with his mother, but that he would live with his father, or spend time with him, each weekend from 3 pm on Friday, with the Father to collect X from the childcare facility that he attended on Fridays, and to return him to the Mother’s care the following Sunday at 5.30 pm. The Sunday changeover was at the Town F McDonald’s restaurant, which can be described as being within the City G region.
That arrangement continued each weekend, by and large, save for some agreed interruptions, from the middle of 2022 until the end of March 2024. Those agreed interruptions were as follows:[1]
[1] As set out in the Father’s affidavit of 12 September 2024.
72. Between July 2022 and April 2024, care arrangements for [X] were stable and consistent. The Mother and I also reached agreements for each of us to take [X] interstate or overseas from time to time or made arrangements for each of us to care for [X] if one of us were unable to. This included the following trips:
a. From [early] 2023 to [mid] 2023, the Mother took [X] to visit [Country E] to attend her brother's wedding. At the Mother's request prior to the trip, I signed a passport application to enable [X] to travel to [Country E] with her.
b. [In mid] 2023, I took [X] to [City P] for a holiday.
c. From November 2023 to December 2023, the Mother visited [Country E] by herself and left [X] in my care.
d. [In early] 2024, the Mother took [X] to Perth to visit her sister who had just given birth.
e. The Mother often asked me to care for [X] during the week if she was sick or needed a break.
f. I was responsible for taking [X] to the majority of his doctor's appointment when he was unwell and all of his dentist appointments.
The Father and X had a close and appropriate relationship of child and parent. I am satisfied and accept the Father’s evidence as set out at paragraphs 73 and 74 of his affidavit:
73. Before the Mother took [X] away, he had a close relationship with me. We spent a lot of quality time together doing things that he enjoyed […].
74 . [X] also had close relationships with my family. My mother, [Ms Q] and her partner, [Mr R], primarily live in a [mobile home] at my property. They spent time with [X] whenever he spent time with me after separation. If my mother and her partner were travelling, [X] and I would Facetime my mother regularly. My father, [Mr S], lives nearby in [Town T], VIC and my brother, [Mr U] lives in Melbourne. [X] was well-loved and spoilt by his paternal family. [X] has had no contact with his paternal family since the Mother took him away in April 2024.
Hence, I am satisfied that it is in X’s interests to live with his father, and if it is practical or able to occur, with his mother as well.
The Father is not aware of he having any right or ability to live in Country E. The Mother, because Country E is the country of her birth, has the ability, apparently, to live in Country E if she chooses. Because of her residence and status as a permanent resident, being granted by the Commonwealth of Australia over many years, the Mother also has the ability to live in Australia if she chooses to. I am satisfied that on or around early 2024, the Mother took X and flew with him to Country E without any advice to the Father. I am satisfied that the Mother had announced her intention to travel to Country E with X to the City G childcare centre that X had been attending.
As had been the pattern over the previous year and a half (roughly), the Father attended that childcare centre on the Friday to pick up X, as was the usual arrangement. When he did, he was told by the childcare centre that the Mother had told staff at the centre that she was travelling to Country E with X. The Father was not only surprised but distressed at that circumstance.
In the circumstance where X has spent holidays with his father and has spent two nights in each week over three days in each week (Friday, Saturday and Sunday) week in, week out, month in, month out, and where X was habitually resident in Australia until early 2024, by reason of the law of Australia, X’s parents, Mr Molnar and Ms Ferrer, had shared parental responsibility for X. Further, they had, by agreement, put in place a routine for X, whereby he lived with his father each weekend over three days, and with his mother during the week. I am satisfied that the Mother’s decision to take X to Country E in early 2024, had not, by the time these proceedings commenced on 21 May 2024, changed X’s habitual residence. X is an Australian citizen and, save for holidays in Country E, had lived all his life in Australia, and in the City G area, save for the short period in Town O.
Not only was X an habitual resident of Australia, as at early 2024, the Mother was an habitual resident of Australia at that time. On the evidence I have, it is not clear to me that the Mother intended to remain in Country E when she left Australia, or whether she intended to only visit for a holiday, or an extended holiday. Her communications with Ms L, and her absence of any communication with X’s other parent caused me to draw the inference that as at this time, the Mother does not intend to return to Australia any time soon.
In those circumstances, I need to consider section 111CC, which I now refer to and repeat:
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.
As to the law relating to the application of 111CC, I refer to and repeat my observations in the decision of Bellanger and Wemble [2023] FedCFamC2F 1246, and the authorities cited therein because it is convenient to do so:
70Section 111CC means that before Subdivision B applies to proceedings, I must be satisfied that there exists as issue under the Act of whether this court has jurisdiction to take measures to the protection of a child, as opposed to a competent authority in another country.
71This Court is considered “a court” in section 111CC pursuant to the section 4 definition of “court” in the Act.
72At first brush the meaning of section 111CC is less than glaringly obvious and is at least a little obscure. Section 15AB of the Acts Interpretation Act 1901 (Cth) authorises me to have regard to Parliament’s Explanatory Memorandum in those circumstances. I refer to paragraph 45 of the Revised Explanatory Memorandum to the Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)[2] for an explanation of section 111CC:
[2] The Bill that inserted Subdivision B in the Act.
45.Section 111CC provides in effect that the rules of jurisdiction in subdivision B apply only in the event of a conflict in jurisdiction between a court in Australia and a competent authority in another country. This provision implements the preamble to the Child Protection Convention (which makes clear that the Convention is directed to the protection of children in international situations) and article 46 of the Convention which provides that a convention country is not obliged to apply the provisions of the Convention to conflicts solely between different systems of law in that country. …
[Emphasis added]
73 In Yaling & Tsen, Harper J described how Division 4 is to be implemented:
33.Division 4 was inserted by the Family Law Amendment (Child Protection Convention) Act 2002 (Cth) (“the Amendment Act”), which ratified the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 (“the Child Protection Convention”). In the Explanatory Memorandum to the Amendment Act, the following was stated:
41.… Thus the effect of subsection 111CB(1) is that, to the extent of any inconsistency, the provisions in Division 4[3] prevail over provisions elsewhere in the Act such as subsection 31(2) (jurisdiction of the Family Court in relation to persons and things outside Australia), section 63E (registration of parenting plans), section 65D (making of parenting orders), section 67ZC (making of child welfare orders) and section 69E (child or parent to be present in Australia).
[3] Subdivision B is within Division 4.
[Emphasis added]
74I also refer to the helpful explanation by Harper J in Yaling & Tsen with respect to “an issue under this Act”:
47.… I take “an issue under this Act”, construed in its context, to mean an issue which arises in accordance with and by virtue of the provisions of the Act, meaning an issue taking its legal implications or consequences from the meaning or applicability of provisions of the Act. Construed in this way, the expression means something different to “an issue in the proceedings”, although there may be overlap. An issue “in the proceedings” can include any disputed legal or factual contention advanced by a party, and based in evidence or legal principle. Such an issue may have nothing to do with the meaning or applicability of the provisions of the Act. For example, it may involve a factual finding relevant only to the exercise of the discretion to make a parenting order pursuant to the provisions of Part VII, where there is no issue about their meaning or applicability.
48.It is also important to remember the phrase “an issue under this Act” is part of a wider composite statutory expression. Force must also be given to the other elements of the expression, in particular the phrase “as opposed to”. The Revised Explanatory Memorandum’s reference to a “conflict in jurisdiction” makes clear, in my view, that the issue in question is whether this Court stands in some degree of opposition to a relevant competent authority in respect of jurisdiction.
[Emphasis added]
75In Yaling & Tsen, the parties in dispute before Harper J both submitted to his Honour that the wording of section 111CC is obscure.[4] The manner of application of Subdivision B has recently been of some significant discussion of Courts with authority under this Act. Harper J dealt with the issue of whether there was any dispute or conflict between the view of Bennett J in Bunyon & Lewis (No 3) [2013] FamCA 888 (‘Bunyon’) and of Foster J in Alfarsi & Elhage [2016] FamCA 428 (‘Alfarsi’). Bennett J observed in Bunyon at [154]:
[4] Yaling & Tsen at [38].
154.Conflict of laws rules are not predicated on proceedings having been instituted in two jurisdictions which have a connection with the dispute but, rather, on there being two jurisdictions which have a connection with the dispute and which could hear and determine the dispute. In my view, the reference in the General Outline and in paragraph 45 of the Explanatory Memorandum to conflict of laws is not, as [counsel’s] submission suggests, a reference to duelling courts. Nor does it presupposes that parties must engage in litigation before more than one competent court before conflict of laws rules operate. Conflicts of law rules is merely a reference to the jurisprudence or set of rules to be applied to determine which one of two or more competent jurisdictions should be used to resolve an issue in dispute between parties.
[Emphasis added]
76Harper J in Yaling & Tsen at [50] conveniently sets out [60] and [61] of Alfarsi as below:
50.In Alfarsi & Elhage [2016] FamCA 428 (“Alfarsi”), it was argued Foster J came to a different conclusion. In Alfarsi, two sets of orders had previously been made for the children to return to Australia from a non-Convention country. At the time of the hearing in May 2016, the children had been residing in the non-Convention country, since September 2014. His Honour said the following:
60. It is important to note the provisions of s 111CC of the Act as set out above that relevantly provides that the provisions of Subdivision C (Jurisdiction for the Person of a Child) of Division 4 (International Protection of Children) of the Act applies only if an issue under this Act is whether a court, as opposed to a “competent authority of a non‑Convention country” has jurisdiction to take measures directed to the protection of the person of a child.
61. In the context of these proceedings no such issue arises. There is no evidence of any such jurisdictional conflict or issue that needs to be resolved by the application of the Subdivision C. Indeed there is no evidence as to existence or otherwise of any such “competent authority” in Iraq that may or may not or has sought to exercise jurisdiction over the children.
77 Harper J reconciles those two authorities at [51] as follows:
51.I am not persuaded Bunyon and Alfarsi are truly inconsistent. In Bunyon, Bennett J took the view that it was not necessary for there to be “duelling courts” or litigation in two or more jurisdictions before s 111CC applied. It was only necessary for there to exist two or more competent jurisdictions which could be used to resolve a dispute between parties in relation to the protection of the person of a child. In this sense, there existed a conflict of jurisdictions. The distinction is between two jurisdictions which have been invoked and two jurisdictions which could be invoked. The latter is sufficient to raise an “issue under the Act” as to jurisdiction. In Alfarsi, Foster J addressed a different question. He found there was no issue under the Act because there was no evidence of any jurisdictional conflict, because there was no evidence of the existence of any “competent authority” in the non‑Convention country.
[Emphasis added]
78 For my part, I am assisted by those authorities.
79Further, I am assisted by the usual suspects in regard to statutory interpretation. In particular I have regard to the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (‘Blue Sky’), and the below ratio decidendi:
71Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
[Citations omitted]
80The way that I read section 111CC to more readily make sense of it is as follows:
This subdivision applies only if an issue under this Act is whether an Australian court has jurisdiction to take measures directed to the protection of a person of a child, as opposed to a central authority or competent authority of a Convention country, or a competent authority of a non-Convention country.
Conclusion as to “is an issue under the Act”
In the circumstances of Ms M’s advice and circumstance of the way the Father seeks the order to be regarded in Country E – that is, as a request, not as a demand or in any way interfering or usurping the courts and authorities of Country E – I am not satisfied that there is an issue under section 111CC.
Alternative finding
In the event that I am wrong about that and there is an issue, I am satisfied that I have jurisdiction to make an order under sections 111CC and 111CD of the Act, by reference to subsection 111CD(1)(e), which provides:
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:
…
(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;
For the reasons stated earlier, paragraph 69E (1)(b) to (d) apply to this case and to X. I am also satisfied that as at the relevant day, being the date that the proceedings commenced, X was habitually resident in Australia. If the Mother had determined, prior to that day, to change X’s permanent place of residence, I do not accept that as genuine or binding on me in any way, because that was a unilateral action by one parent interfering with a settled arrangement and settled living arrangement for X, in the country where X and his two parents could lawfully live.
Applicable law
I apply section 60CC which provides as follows:
Section 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.
…
I am satisfied that the Father does not have any ability to live in Country E. In any event, I infer and accept that the Father does not speak any of the languages of Country E. However, I accept, having read Ms L’s affidavit, that the Mother is reasonably fluent and able to communicate in English, that being the language in common usage in Australia. In all of those circumstances, I’m satisfied that I can and should make the orders that X live with his father and with his mother, to an extent to be determined when X is recovered, with the assistance of the Country E authorities.
I am satisfied that it is in X’s best interests that I make the orders largely as sought by the Father.
Conclusion as to best interests
In determining and taking into account the matters under section 60CC, I consider all of those matters, and I am satisfied that the orders that I make would promote the safety of X. X is only 4 years old, and hence would be unable to express any views about where he lives in circumstances where any weight could be attached to that. However, I am satisfied and infer from the nature of and extent of X’s living with one parent five nights a week, and the other parent two nights a week but over three days, that to the extent that a four-year-old would have views about his living arrangements, that his views would be to live in a place and in an arrangement where he was able to have a relationship with both of his parents.
I take into account the developmental, psychological and emotion and cultural needs of X. X is an Australian citizen, only speaks English, the language of Australia, and has a developmental, psychological, and emotional need to live in an arrangement where he is able to have a relationship with both his parents.
I am satisfied on an interim or interlocutory basis, until the matter can be further addressed, that orders should be made that the Father has parental responsibility for long-term decisions relating to X.
I am satisfied that there is a real benefit to X of being able to have a relationship with both of his parents and with his extended family in Australia. I take into account the history of family violence, and the Father’s demand to the Mother in early 2022, that she not return to the home she had been occupying, could be regarded as family violence, and appears that it was so regarded by the local court. I take that into account. However, the demonstrated history of X being able to move between his father’s household and his mother’s household each and every week, since the middle of 2022, demonstrates to me that there is no impediment to X being able to enjoy the benefit of both parents. I understand that the law of Country E is not dissimilar to the law of Australia, in that the child’s best interest is the primary consideration, as well as a shopping list of factors to be taken into account, including the child’s views. I want to make clear that these orders are not intended to in any way pressure, or usurp, or interfere with the application of the law of Country E, and any events occurring in Country E.
In all of those circumstances I will make those orders.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 October 2024
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