Molnar & Ferrer (No 2)
[2024] FedCFamC2F 1818
•6 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Molnar & Ferrer (No 2) [2024] FedCFamC2F 1818
File number(s): MLC 5925 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 6 December 2024 Catchwords: FAMILY LAW – Parenting – Undefended final hearing – Where respondent mother has had opportunity to participate in proceedings but has chosen not to – Where respondent mother unilaterally relocated with child overseas – Recovery order – Watchlist order – Orders for child to live with applicant father in Australia – Any orders for spend time with mother to be determined if or when she chooses to engage in proceedings. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Molnar & Ferrer [2024] FedCFamC2F 1419 Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 6 December 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:
6 DECEMBER 2024
THE COURT ORDERS THAT:
Care Arrangements and Decision-Making
1.X otherwise with the Country J name known as X born in 2020 (‘X’ or ‘the child’):
(a)is an Australian Citizen; and
(b)was ordinarily a resident in Australia on the relevant date, being the day these proceedings commenced (21 May 2024); and
(c)on the relevant day (21 May 2024) 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 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, 2 April 2024 was ordinarily an Australian Resident; and
(d)was ordinarily a resident of Australia on the relevant date, being the day these proceedings were commenced.
4.X live with the Father.
5.The Father be and is responsible for sole decision making on major long-term issues, ncluding the care, welfare, and development for X.
6.X’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 noting that the Family Law Act in Australia considers the views of the child.
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 or any other name he is known by including 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 may be found; and
(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)The Country E Constitutional Court; and
(g)The City B District Court
(a)-(g) 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. It is requested that if Judge O’Shannessy is available, that this matter be urgently put before him and that the Father be at liberty to inform and coordinate with His Honour’s chambers by direct urgent email.
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: …@....
Airport Watch List (the child)
13.Both parties, their 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 or any other name he is known by including X, born in 2020 from the Commonwealth of Australia. This order ceases to have effect upon the child attaining the age of 18 years.
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 names 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 upon the child attaining the age of 18 years.
15.Upon expiration of the period referred to in Order 14 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.
Airport Watch List (the Mother)
16.Until further order, the Mother, X born 1987, be and is hereby restrained from leaving, or attempting to leave, the Commonwealth of Australia. This order ceases to have effect upon the child attaining the age of 18 years.
17.The Court REQUESTS THAT the Australian Federal Police give effect to this order by placing the name of the Mother on the Family Law Watch List in force at all points of international arrival and departure in the Commonwealth of Australia and maintain the mother’s name on the Family Law Watch List indefinitely, until the Court orders its removal, or with the consent of all parties.
Airport Watch List (other)
18.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.
Other Orders
19.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.
20.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.
21.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.
22.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.
23.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.
24.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.
25.The Father’s costs of and incidental to this Application in the total sum of $58,490 ($41,400 in professional fees plus $17,090 in Counsel’s fees to date) be and are reserved.
AND THE COURT NOTES THAT:
A.To date, the Mother has not engaged in these proceedings. The Father has attempted to bring these proceedings and all orders of this Court to the attention of the Mother.
B.The Mother has resided in Country E with X since about April 2024.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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.
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. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
The matter comes before me where the applicant father, Mr Molnar (‘the Father’), presses for final orders concerning the child, X, born in 2020. The matter previously came before me on 19 September 2024 when there was no appearance for or by the respondent mother, Ms Ferrer (‘the Mother’). I refer to the orders and reasons delivered that day. [1] I was assisted by counsel who appeared on the day.
[1] Molnar & Ferrer [2024] FedCFamC2F 1419.
Proceedings before me
The first duty of a court is to determine jurisdiction. I refer to and repeat my observations as to jurisdiction in the reasons of 19 September 2024. I particularly note the evidence as to the law of Country E and expert evidence from Ms M, who advised that:[2]
[2] Ibid [15].
There is the legal mechanism to apply for the recognition and enforcement of final judgments rendered by foreign courts in [Country E].
Following those reasons, I am satisfied that the lawyers for the Father went to considerable trouble and expense to bring both the orders that I made and the reasons for those orders to the attention of the Mother. For the reasons stated in the decision of 19 September 2024, I am also satisfied that the Mother uses, has used for many years, and can be contacted via her email address. It would be preferable were the Mother to have demonstrated some minimal respect for the law of the country in which she lived for a number of years by acknowledging receipt of those documents. I am satisfied that she has chosen not to do so. It would be preferable if the Mother were to provide further details such as details of her lawyer, where she lived and, most importantly, where X actually was. I am satisfied she has chosen not to provide X’s father with any of those important details. I am satisfied that the Mother has had the opportunity to put her side of the story before me.
Parenting decision
I am satisfied that it is in X’s interests to live with his father in Australia. I am also satisfied that it is in X’s interests that what time the Mother should spend with X when he is in Australia should be determined when the Mother deigns to participate in the proceedings. It is simply not practical or possible to determine that matter at this time. It is in the Father’s interests, the Mother’s interests and, most importantly, in X’s interests that these proceedings be determined.
The overall proceedings are determined regarding X’s best interests as the paramount consideration. I also take into account all of the matters that I must take into account under section 60CC of the Family Law Act 1975 (Cth), including section 60CC(2)(b), ‘Any views expressed by the child.’ In this case, X having just turned four, it would not be appropriate to place the responsibility of determining where he lives on X by placing weight on his wishes. I am satisfied that X’s wishes would be to have a relationship with both of his parents if that were possible.
I am satisfied that X’s mother has determined, and without proper regard to X’s welfare and best interests, to remove X from the country where he had lived all his life, and remove him from the family and environment that he had known, was familiar with, and enjoyed. That action by X’s mother, at a time when she was unhappy with her living arrangements in Australia and her relationship of being a co-parent with the Father is a significant matter to take into account.
I am satisfied there is a real benefit to X of having a relationship with both of his parents, and, in the circumstances where one of the parents has determined that he can only have a relationship with one or the other, that it is in his best interests that he have a relationship with and live with his Father. I take into account that the Father had agreed to, and ensured, that the child lived with each of his parents and had a relationship with both of them.
I am satisfied that the developmental, psychological, emotional, and cultural needs of X overwhelmingly demand that he live with his father in Australia and in the City G area. I am satisfied that those arrangements would promote the safety of X and of the Mother and of the Father, including the need to protect X from family violence, abuse, neglect or other harm. I am satisfied that the removal of X’s paternal family from his life is a matter that exposes X to harm and significant psychological harm.
The need of a child, particularly a child of four years old, to have a connection with and the benefit of both parents in their life is a universal and human need. I am troubled that the Mother has chosen, after a long history of shared care of X between his parents, to have determined that X’ father and paternal family and the wider community of the City G area, where he lived all his life, would have no further role in X’s life.
For all of those reasons, I am sadly satisfied that it is in X’s best interest that he live with his father in Australia. I also note that I do not, by these orders, command or direct the courts or the government or the authorities of the country where X apparently is to do anything, and that this is a request that these orders be taken into account. I am satisfied that the Father will seek to register and enforce these final orders in Country E in accordance with the law of Country E.
They are the orders that I make with some regret. They are the reasons for those orders. It would be far preferable if I was able to hear from both parents, and that neither parent unilaterally acted in a manner that excluded the other parent from the child’s life. But children do not get to choose their parents: they just have to do the best they can with the ones they have.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 January 2024
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