Rothman & Rothman
[2025] FedCFamC1F 40
•30 January 2025
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
Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 23 January 2025 Place: Sydney The Applicant: Self-represented litigant Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: Tsui Lawyers ORDERS
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rothman & Rothman has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
Before the Court are the parties’ competing interlocutory applications for parenting and financial orders.
The parenting proceedings relate to the parties’ two children, X born 2017, and Y born 2020 (collectively “the children”). The children have resided with their mother in Country B since July 2024.
The father in broad terms seeks orders for the immediate return to Australia of the children and an Australian Federal Police Family Law Watchlist order. The father’s orders are opposed by the mother.
The financial proceedings relate to the mother’s orders for the sale of the former matrimonial home and the payment to her of $100,000 by way of partial property settlement. In addition, she seeks the sum of $2,736 per month by way of child maintenance. The mother’s application is opposed by the father.
The day before the hearing commenced, the father sought through his filed Case Outline document, an anti-suit injunction in relation to proceedings that the mother commenced in Country B. The father has been on notice of those proceedings since they were referred to in the mother’s Initiating Application filed 21 October 2024.
The mother was, until the day prior to the hearing, represented, with her counsel granted leave to withdraw on the morning of the hearing. The mother thereafter appeared unrepresented. She has been given no prior notice of the anti-suit injunction nor is it contained in any application filed with the Court. In those circumstances, I advised the father’s counsel that I did not propose to hear the anti-suit injunction.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
(1)Initiating Application filed 21 October 2024;
(2)Affidavit sworn 18 December 2024;
(3)Affidavit sworn 18 October 2024;
(4)Financial Statement filed 18 October 2024;
(5)Reply filed 18 December 2024;
(6)Notice of child abuse, family violence or risk filed 7 January 2025; and
(7)Outline of Case Document filed 22 January 2025.
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.
The mother in her affidavit says the following:
34.I left Australia [in] July 2024 for a vacation and agreed with [Mr Rothman] that this would be until January 2025, and so I could also look after my mother during this time. However, with no notice, shortly after my departure, [Mr Rothman] cut me off financially as I depose to above. I had become increasingly fed up with [Mr Rothman’s] psychological, physical and emotional abuse toward me and so have since decided to remain living in [Country B] with the children where it is safe and I can provide for the children. I have a home and family in [Country B], whereas in Sydney I did not have anywhere to live outside of the [Suburb D] property with [Mr Rothman]. Unlike in [Country B], l had no other emotional support in Australia. I therefore felt I had no other option but to remain living in [Country B], and it also ensured my safety and the children’s upon separating from [Mr Rothman].
The father contends that the mother left for Country B without notice to him. He says that he tried to telephone her mobile phone during the course of the day and that the phone calls went straight to a voicemail. He says that when he returned home from work the family car was not where it was normally parked, and the house was dark and in a mess.
He says that while he and the mother had a conversation the day before she left about going to Country B, he did not agree to her taking the children. He said that if they were to go, it should be as a family, which he says the mother agreed to.
The father says that he has repeatedly asked the mother to return the children to Australia and that the mother has made up excuses as to why they cannot return. He refers to messages on 7, 11 and 12 August 2024 where the parties argued about whether the mother had told him that she would be travelling to Country B. The screenshots of the WhatsApp messages are annexed to the father’s affidavit.
The father says that on 5 September 2024 he contacted the police and made a report that the mother had ‘kidnapped’ the children. The father says that on 5 September 2024 he received a letter from the mother’s solicitors indicating her intention to commence proceedings in Australia for property and spousal maintenance. He says that on 20 September 2024 his solicitors responded to the mother’s solicitors seeking the return of the children to Australia.
The mother gives evidence that she is living with her mother in City E, she has found employment, and that the eldest child is enrolled in school. She says the children are happy in Country B and have said they don’t want to go back to Australia. She says the father has provided her with limited financial support since travelling to Country B and that her mother lives with her and is providing her with assistance. She says that she cannot afford to purchase a car and is not currently entitled to any government benefits in Country B as she is recognised at law as a married person.
The mother says that in late 2024 she applied to a Country B court seeking orders by way of divorce and custody of the children. She contends that the father received documents on 14 November 2024 and again on 9 December 2024. She annexes as proof of his receipt of those documents a photograph of an envelope.
In relation to the proceedings in Country B, she says the following:
19.The first Court hearing took place [in late] 2024 at the […] District court in [City E]). The matter is listed for a Final Hearing to determine final orders about parenting arrangements for the children, including where they are to live, at the same Court [in early] 2025. Once this is received and processed by the [Country B] Court, I will be entitled to receive a very modest single parent benefit, which would be no more than $300 AUD per month although I am not certain of this amount.
The father says that on 19 December 2024 and again in January 2025 he transferred monies totalling $1,200 to the mother.
He says that the last contact he had with the children was on 28 October 2024 and that the mother has frustrated his attempts to maintain a relationship with the children.
The father through his counsel indicated that in the event that the mother was ordered to return the children to Australia he would vacate the former matrimonial home, and the mother could have exclusive occupation of that property with the children.
JURISDICTION
The mother contends that the Court does not have jurisdiction. Beyond asserting that there were proceedings before a court in Country B, she did not advance the basis upon which she contends that this Court does not have jurisdiction.
I am satisfied that the Court has jurisdiction in relation to the children. I reach that conclusion by virtue of the provisions of s 69E of the Family Law Act 1975 (Cth) (“the Act”) in circumstances where the children are Australian citizens, the father is an Australian citizen, and the father is present in Australia. I am further satisfied that the children were at all material times, up until their wrongful retention in Country B, habitually resident in Australia.
In LK v Director General Department of Human Services (2009) 237 CLR 582, the High Court determined that habitual residence is a matter of fact, to be determined having regard to:
… a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
Their Honours referred with approval to P v Secretary for Justice [2007] 1 NZLR 40 and in particular quoted the findings of the majority of the Court of Appeal of New Zealand who said:
Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration…
I am satisfied having regard to the above authorities that there is little doubt that these children were habitually resident in Australia. They were born here, the parties intended they live in Australia, they have only ever travelled to Country B for holidays and the mother’s intention on travelling to Country B (accepting her evidence at its highest) was that she intended to return with them to Australia. The children were engaged in social and extracurricular activities within Australia. All of the attendant circumstances I am satisfied lead inevitably to the conclusion that the children were habitually resident in Australia.
I am further satisfied by the terms of s 111CD of the Act that the Court has jurisdiction to deal with this matter. I am further satisfied that the courts of Country B are courts of competent jurisdiction pursuant to Chapter IV of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”).
I am satisfied therefore that any order that the Court would make in relation to the children meets the requirements for enforcement in Country B pursuant to the 1996 Convention.
DISCUSSION – PARENTING ORDERS
Consistent with the provisions of s 69ZL of the Act, I set out in short form my reasons.
Parenting proceedings are governed by Pt VII of the Act. In making a parenting order, s 60CA requires the Court to regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, s 60CC(2) sets out the matters that are required to be considered. No one matter takes priority over the other. The matters to be considered are:
60CC How a court determines what is in a child’s best interests
…
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.
In considering the matters in s 60CC(2)(a), the Court must, pursuant to s 60CC(2A), consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that applies in relation to the child or a member of the child’s family.
Section 60CG of the Act requires the Court, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order.
Pursuant to s 60CC(2)(a), the Court must have regard to the arrangements which would promote the safety of a child and the person who has the care of the child. The word safety should, in my view, be given its ordinary meaning; that is, the orders should provide a degree of protection from the matters identified in the subsection to the extent necessary relative to the evidence and the risk of harm.
The Full Court in Goode and Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523 (“Adamson”), McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
I also note the observations of Brown J in Atwill & Marden [2018] FCCA 1401 (“Atwill & Marden”), which are apposite to the orders that the mother seeks dismissing the father’s application for the return of the children. Her Honour observed:
90.Two of the principles underpinning Part VII of the Act [section 60B(2) encourage parents to share duties and responsibilities for their children and to agree about future parenting arrangements for them.
91.For reasons arising from these principles, amongst other factors, courts applying Part VII are discouraging of parents, who take unilateral actions in respect of arrangements for their children, except in circumstances of significant emergency.
92.This is particularly so in cases of relocation, which invariably have implications for both the quality and quantity of relationship the parent left behind can have with the children affected by the other parent’s move.
93.The High Court has indicated that cases involving relocation require delicate and careful analysis of all the pros and cons, in respect of the move, from the individual perspectives of all concerned, including the children. For the reasons outlined already, such a degree of analysis is not possible at the interim stage.
94.In Morgan & Miles, which was a case which arose after the shared parental responsibility amendments were implemented, Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C and S remain apt and relevant to determination of these cases.”
95. The comments, of Warnick J referred to, were as follows:
“In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.”
(Footnotes omitted)
With respect to her Honour, I agree with those observations.
In this respect, I also note the observations of the now Deputy Chief Justice McClelland in Adamson, where his Honour observed:
98.As I will discuss, while the Act requires the focus of these proceedings to be on the best interests of the children, authority suggests that a relevant factor to also consider is that a parent should not make a unilateral decision to significantly change the children’s circumstances in a situation where there is a dispute between the parties as to what parenting arrangements are in the long term best interests of the children.
These are interim proceedings and there has been no cross-examination. Conscious as I am that I cannot make findings on these disputed allegations, of which there are many including the circumstances in which the mother left and the allegations of family violence, I am equally conscious that I cannot simply ignore questions of possible risk and harm.
The mother opposes any order for return of the children to Australia. In her Case Outline she states at paragraph 24 “the [mother] has indicated a present intention not to return to Australia with the children”. In her submissions, she said she would not comply with an order for their return. There seems to have been a hardening overnight in the mother’s position. That said it is one thing to say that you will not comply with an order that has not been made, it is quite another thing to not comply with an order. I will give the mother the opportunity to reflect upon her rash assertion and to consider deeply the consequences that may flow from her non‑compliance. I nevertheless proceed, irrespective of what the mother states is her present intention, to determine this matter on the basis of what is in the children’s best interests.
The mother left Australia (if her evidence is to be accepted) with the intention to return. Beyond having changed her mind upon arriving in Country B, her affidavit does not provide any substantive reason as to why she cannot return.
The mother’s choice to remain in Country B and not return, notwithstanding the terms of an order, is ultimately a matter for her. That does not absolve her of responsibility to comply with an order to return the children. I recognise that it is a serious matter for the Court to make orders that impinge upon a party’s freedom of movement and choice as to where they wish to live. However, a party’s choice as to where they wish to live must give way to what is in the best interests of the children. The children have been removed by the mother from their home and retained overseas unilaterally and against the wishes of their other parent.
Addressing the relevant matters under s 60CC(2)(a) I note that the mother raises serious issues about matters of family violence. I am unable to resolve the factual contest, but I am satisfied that any order I make would promote the safety of the children and the mother in circumstances where there exists in this country the capacity to seek an ADVO on behalf of the mother and/or the children should that be necessary. In that respect, I note the mother’s evidence that she has on two prior occasions sought ADVO’s. To the extent that it is necessary, I will grant the mother liberty to restore the matter to the list 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. Should the mother wish to return to Country B upon her return of the children to Australia, she is perfectly entitled to do so.
The mother would contend that the views of the children are that they wish to remain in Country B. I am satisfied that given their age, little weight should be attributed to their views.
I recognise consistent with s 60CC(2)(c) the psychological, emotional and cultural needs of the children. In that respect, I recognise that they are citizens of both Country B and Australia and that their parents both have Country B heritage. That said, they have lived most of their lives in Australia and were engaged in social and extracurricular activities in Australia. They are able to maintain contact with their Country B heritage in Australia, as they have since birth.
I am satisfied that each of the parties have the capacity to provide for the children’s development, psychological, emotional and cultural needs. That said, the mother’s unilateral decision to retain the children in Country B over the opposition of the father together with her expressed attitude towards compliance with a court order, reflects poorly upon her parenting capacity.
I am satisfied that it is to the benefit of the children to have a relationship with each of their parents. The mother’s affidavit suggest that she wanted the children to have that relationship. That cannot occur if they remain living in Country B. Whilst the father contends that the mother has restricted his time, the mother does not contend that the children should not have a relationship with their father.
The determination of where children are to live is made in intact relationships by the parents jointly. The same situation pertains upon separation, parties either jointly agree or they approach the Court to resolve their dispute. They do not act unilaterally. To do so is a descent into anarchy. Where children live, if it involves a substantial separation from one parent, has profound consequences for their future development and it is why such decisions are made by courts after mature reflection and following a proper consideration of all of the evidence, supportive or otherwise, of each party’s proposal. That does not occur at a circumscribed hearing or a result of one party’s solipsistic act.
The mother’s unilateral actions in retaining the children in Country B is not in the children’s best interests. It has disrupted their home life, social environment and their relationship with their father. On balance, I am satisfied that the best interests of these children are met by them being returned to Australia. Thereafter, the parties can conduct a hearing to determine what is in the best interests of the children long term.
I accept on balance the mother’s evidence that she has been the primary carer of the children. I note that the father’s orders upon return of the children to Australia are that they live with the parties on a week-about basis. Thus, the father does not contend that the mother poses a risk of harm to the care of the children other than by her dictatorially retaining them in Country B. I am not satisfied that an equal time arrangement is one that would be in the children’s best interests, particularly given the conflict surrounding the circumstances of the mother’s actions.
I propose to make orders that the children live with the mother and spend time with the father initially each alternate weekend. In the event the mother does not comply with the order then the children will be placed in the father’s primary care with orders to give effect to that circumstance.
Upon the children’s return to Australia, the parties will be at liberty to restore the matter to the list to make such further parenting orders as each of them deem appropriate.
THE MOTHER’S FINANCIAL ORDERS
The mother seeks an order for the sale of the former matrimonial home and for her to receive $100,000 from the proceeds of the sale by way of partial property order. In addition, she seeks orders by way of child maintenance.
Despite having heard submissions from the parties as to the financial orders, I do not propose to make orders at this stage in relation to the mother’s application given that the parenting orders proposed to be made will change considerably the necessity and/or appropriateness of the orders. That is, upon the mother’s return with the children, the mother will be able to access child support, and it may be necessary to make a spousal maintenance order. Likewise, a sale of the home would deprive the mother and children of a place in which to live upon their return.
I will adjourn the mother’s interlocutory relief to a date after that provided for the children’s return. On that adjourned date I will hear further submissions and evidence, if necessary, as to what orders if any are appropriate.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 30 January 2025
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