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…
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- AGLC
- Molnar & Ferrer (No 2) [2024] FedCFamC2F 1818
- Case
- [2024] FedCFamC2F 1818
- Decision Date
CaseChat Overview and Summary
The court found that the mother had not participated in the proceedings and had relocated the child to Country E, effectively removing the child from the jurisdiction of the Australian court. Despite this, the court held that the father was entitled to sole decision-making responsibility regarding the child's major long-term issues, including care, welfare, and development. The court issued a recovery order authorising law enforcement agencies to locate and return the child to the father's care, and requested international cooperation to enforce this order. Furthermore, the court placed both the child and the mother on the Family Law Watch List to prevent their removal from Australia.
The court's reasoning was grounded in the best interests of the child, emphasising the importance of stability and the child's right to maintain a relationship with both parents. However, the court noted that any arrangements for the child to spend time with the mother would depend on the mother's future engagement in the proceedings. Consequently, the court ordered that the child live with the father and granted the father leave to seek urgent hearings if necessary. The court also included various restraining orders to prevent the mother from removing the child from Australia or the father's care.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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