Rothman & Rothman - [2025] FedCFamC1F 40

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rothman & Rothman [2025] FedCFamC1F 40

File number: SYC 8245 of 2024

Judgment of: SCHONELL J

Date of judgment: 30 January 2025

Catchwords:
FAMILY LAW – INTERLOCUTORY APPLICATION – Parenting – Jurisdiction – Where the mother challenges the jurisdiction of the Court to determine the parenting dispute between the parties – Where there are current divorce and parenting proceedings in Country B commenced by the mother – Where the Court finds that the children are habitually resident in Australia – Where the Court is satisfied that the Court has jurisdiction to hear and determine the parenting dispute.

FAMILY LAW – INTERLOCUTORY APPLICATION – Parenting – Where the mother has retained the children in Country B without the consent of the father – Where the father seeks the return of the children to Australia and an order placing the children on the Family Law Watchlist – Where the mother informs the Court that she will not return the children to Australia – Orders made for the return of the children to Australia and thereafter the mother and children to have exclusive occupancy of the former matrimonial home – Orders made for the children to live with the mother and spend time with the father each alternate weekend on their return to Australia – Orders made for the children to be placed on the Family Law Watchlist.

FAMILY LAW – INTERLOCUTORY APPLICATION – Financial – Where the mother seeks orders for the sale of the former matrimonial home and the payment to her of $100,000 by way of partial property order – Where the mother seeks in addition the sum of $2,736 per month by way of child maintenance –Where the mother contends that she is not eligible for government financial assistance from either Country B or Australia – Where the mother’s application is opposed by the father – Orders made to adjourn the mother’s application for financial orders to a date after that provided for the children’s return.

FAMILY LAW – INTERLOCUTORY APPLICATION – Anti-suit injunction – Where the father seeks orders for an anti-suit injunction in relation to the mother’s proceedings in Country B – Where no application is filed with the Court and the father has been on notice of the proceedings in Country B since October 2024 – Where the mother is self-represented and had no notice of the application – Application not heard.

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC(2), 60CC(2)(a), 60CC(2A), 60CG, 69E, 69ZL, 111CD

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children

Cases cited:
Adamson & Adamson [2018] FamCA 523

Atwill & Marden [2018] FCCA 1401

Eaby & Speelman (2015) FLC 93-654

Goode and Goode (2006) FLC 93-286

LK v Director General Department of Human Services (2009) 237 CLR 582

Marvel & Marvel (No. 2) (2010) 43 Fam LR 348

P v Secretary for Justice [2007] 1 NZLR 40

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rothman & Rothman

Details

AGLC: Rothman & Rothman [2025] FedCFamC1F 40
Case: [2025] FedCFamC1F 40
Decision Date: 30 January 2025

CaseChat Overview and Summary

In the matter of Rothman & Rothman, the court addressed an interlocutory application in the Federal Circuit and Family Court of Australia regarding a parenting dispute. The mother, Ms. Rothman, challenged the court's jurisdiction to determine the dispute, given that there were concurrent divorce and parenting proceedings in Country B, which she had initiated. The father, Mr. Rothman, sought the return of their two children to Australia and placement on the Family Law Watchlist. The court found that the children were habitually resident in Australia and thus had jurisdiction over the matter.

The legal issues before the court included whether it had jurisdiction to hear the parenting dispute and whether the children should be returned to Australia. Additionally, the court had to determine whether the children should be placed on the Family Law Watchlist, and whether financial and anti-suit injunction orders should be granted. The court found that the children were habitually resident in Australia, granting it jurisdiction over the matter. It ordered that the children be returned to Australia, placed on the Family Law Watchlist, and that the mother and children occupy the former matrimonial home exclusively. The court also ordered that the children live with their mother and spend alternate weekends with their father. The mother's application for financial orders was adjourned, and the application for an anti-suit injunction was not heard.

The court's reasoning was based on the habitual residence of the children in Australia, the mother's retention of the children in Country B without the father's consent, and the need to ensure the children's safety and return to Australia. The court noted that the father had not acquiesced in the retention of the children in Country B and requested that the competent authorities in Country B recognize and enforce these orders. The orders were made to ensure the children's safe return to Australia and to establish a parenting arrangement that facilitated their relationship with both parents.

Orders

Orders of the court

SYC 8245 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ROTHMAN

Applicant

AND:

MR ROTHMAN

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

30 JANUARY 2025

THE COURT ORDERS THAT:

1. The Applicant mother’s (“the mother”) interlocutory relief set out in her Initiating Application filed 21 October 2024 is listed for further interim hearing at 9.30 am on 21 February 2025 by way of Microsoft Teams.

2. The mother forthwith and within 7 days do all acts and things and sign all documents as shall be necessary to return X born 2017 and Y born 2020 (“the children”) to the Commonwealth of Australia and disembark at Sydney International Airport.

3. The mother do all acts and things to inform the Respondent father (“the father”) in writing of the children’s return flight details to Australia.

4. If the mother fails or neglects to comply with Order 1 above, the father shall be granted sole parental responsibility and primary care of the children in Country B for the purpose of returning the children to Australia.

5. The father be at liberty to make a copy of these orders available to such persons, agencies and organisations, in Australia, Country B or such other jurisdiction as the children are or may be taken, as is reasonably required to assist in the implementation of these orders, including but not limited to any airline on which the children travel or are booked or seek to travel.

6. Until further order the mother and the father, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the Court orders its removal.

Upon the mother returning the children to Australia

7. The mother and children shall have exclusive occupation of the property at C Street, Suburb D.

8. Until further order, the children live with the mother.

9. Until further order, the children shall spend time with the father each alternate weekend from after school or 3.00 pm on Friday until 5.00 pm on Sunday.

Liberty to Relist

10. The parties have liberty to relist this matter before me on 24 hours’ notice in relation to parenting orders.

11. The mother have liberty to relist this matter before me on 24 hours’ notice of her return to Australia to address any issues that she has or may arise in relation to the question of safety including, if necessary, the granting of injunctions.

THE COURT NOTES THAT:

A. The father has not acquiesced in the retention of the children in Country B by the mother.

B. This Court requests that the competent authorities and courts in Country B recognise and enforce 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

The father relied upon the following documents:(1)Response dated 19 November 2024;(2)Affidavit sworn 13 January 2025; (3)Financial Statement sworn 19 November 2024;(4)Notice of Child Abuse, Family Violence or Risk filed 19 November 2024; and(5)Outline of Case Document filed 22 January 2025,BACKGROUND The father was born in Australia, and the mother was born in Country B. The mother contended that the parties met in Australia in 2012, began a relationship in 2013, and were married in Australia in 2014. The mother contends that the parties separated on 7 August 2024. The father contends that the parties did not cohabit prior to marriage. The father says the parties separated in July 2024. He says separation occurred when the mother took the children to Country B without his consent. There are two children of the marriage. Both children were born in Australia and are Country B and Australian citizens. The mother contends that the children have spent time in Country B in mid-2018. There was a further period of time between late 2018 and mid-2019 when she took the eldest child to Country B for medical care and a further period of time between early 2021 and early 2022 when she visited her family. The mother contends that at the commencement of the relationship, she was employed in Australia as a finance professional whilst the father was employed as a professional. The mother says that she worked full-time until late 2014 when her contract ended and then undertook various other roles thereafter ceasing work, she says, so that the parties could have children. The mother contends that since the birth of the children she has been the children’s primary carer while also undertaking some part-time work. The parties purchased in their joint names a property in Sydney which property the mother seeks to sell to meet her partial property order. The mother contends that she has been the victim of family violence perpetrated upon her by the father during the course of the parties’ relationship. She refers to a number of incidents as well as two apprehended violence orders that have been issued by New South Wales Police; one issued in late 2015 and another issued in late 2020. The mother’s allegations of family violence are denied by the father. The father concedes that he agreed to an apprehended domestic violence order (“ADVO”) on a without admissions basis. The father says that the parties had a volatile relationship but that it was the mother who was the perpetrator of family violence. The mother contends that the father played a very limited role in the care of the children during the relationship, that he was uninterested and that she was supported by her mother. She said that she wanted the father to be more involved with the children but he chose not to be. The mother’s allegations are denied, and the father says he has played an active role in the children’s lives. It is not in issue that in July 2024 the mother left Australia for Country B, taking with her the two children. The mother contends that the day before she left for Country B, she and the father had a conversation about the planned trip and that the father agreed that she could go to Country B with the children for a holiday until early January 2025.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYC 8245 of 2024
Judgment of:	SCHONELL J
Date of judgment:	30 January 2025
Catchwords:	FAMILY LAW – INTERLOCUTORY APPLICATION – Parenting – Jurisdiction – Where the mother challenges the jurisdiction of the Court to determine the parenting dispute between the parties – Where there are current divorce and parenting proceedings in Country B commenced by the mother – Where the Court finds that the children are habitually resident in Australia – Where the Court is satisfied that the Court has jurisdiction to hear and determine the parenting dispute. FAMILY LAW – INTERLOCUTORY APPLICATION – Parenting – Where the mother has retained the children in Country B without the consent of the father – Where the father seeks the return of the children to Australia and an order placing the children on the Family Law Watchlist – Where the mother informs the Court that she will not return the children to Australia – Orders made for the return of the children to Australia and thereafter the mother and children to have exclusive occupancy of the former matrimonial home – Orders made for the children to live with the mother and spend time with the father each alternate weekend on their return to Australia – Orders made for the children to be placed on the Family Law Watchlist. FAMILY LAW – INTERLOCUTORY APPLICATION – Financial – Where the mother seeks orders for the sale of the former matrimonial home and the payment to her of $100,000 by way of partial property order – Where the mother seeks in addition the sum of $2,736 per month by way of child maintenance –Where the mother contends that she is not eligible for government financial assistance from either Country B or Australia – Where the mother’s application is opposed by the father – Orders made to adjourn the mother’s application for financial orders to a date after that provided for the children’s return. FAMILY LAW – INTERLOCUTORY APPLICATION – Anti-suit injunction – Where the father seeks orders for an anti-suit injunction in relation to the mother’s proceedings in Country B – Where no application is filed with the Court and the father has been on notice of the proceedings in Country B since October 2024 – Where the mother is self-represented and had no notice of the application – Application not heard.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC(2), 60CC(2)(a), 60CC(2A), 60CG, 69E, 69ZL, 111CD Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children
Cases cited:	Adamson & Adamson [2018] FamCA 523 Atwill & Marden [2018] FCCA 1401 Eaby & Speelman (2015) FLC 93-654 Goode and Goode (2006) FLC 93-286 LK v Director General Department of Human Services (2009) 237 CLR 582 Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 P v Secretary for Justice [2007] 1 NZLR 40