Rothman & Rothman (No 2)
[2025] FedCFamC1F 101
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rothman & Rothman (No 2) [2025] FedCFamC1F 101
File number: SYC 8245 of 2024 Judgment of: SCHONELL J Date of judgment: 21 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Interlocutory orders – Where the mother has retained the children in Country B contrary to the orders of the Court– Where the mother informs the Court that she will not return the children to Australia – Where the mother has not complied with court orders and has retained the children in Country B unilaterally – Where the mothers non-compliance with an order of the Court invokes Pt 10.6 - Default of the Rules – Orders made for the interlocutory relief contained in the mother’s Initiating Application to be dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 10.6 rr 10.25, 10.26, 10.27 Cases cited: Rothman &Rothman [2025] FedCFamC1F 40 Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 21 February 2025 Place: Sydney Counsel for the Applicant: Mr Francis Solicitor for the Applicant: O’Sullivan Legal Counsel for the Respondent: Mr Blackah 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:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The interim relief set out in the mother’s Initiating Application sealed 21 October 2024 is dismissed.
2.The matter is referred to a registrar for further directions.
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).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
On 23 January 2025 the Court heard the parties’ competing interlocutory applications then listed for hearing before the Court. On 30 January 2025 I delivered reasons in relation to the applications (Rothman & Rothman [2024] FedCFamC1F 40 (the “Reasons”)).
In my Reasons, I recorded the following:
1Before the Court are the parties’ competing interlocutory applications for parenting and financial orders.
2The 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 [mid] 2024.
3The 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.
4The 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.
…
18It is not in issue that [in mid] 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.
19The mother in her affidavit says the following:
34.I left Australia [in mid] 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].
20The 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.
21He 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.
22The 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.
23The father says that [in late] 2024 he contacted the police and made a report that the mother had ‘kidnapped’ the children. The father says that on [this date] 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 [two weeks later] his solicitors responded to the mother’s solicitors seeking the return of the children to Australia.
24The 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.
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31I 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.
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48These 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.
49The 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.
50The 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.
51The 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.
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56I 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.
57The 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.
58The 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.
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60I 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.
61Upon 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
62The 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.
63Despite 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.
64I 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.
At the hearing this morning, the mother’s counsel advised the Court that the mother has not complied with the order for the return of the children and does not intend to return the children.
I invited each of the parties’ counsel to make submissions as to why I should not dismiss the further interlocutory relief consequent upon her failure to comply with an order. Each parties’ counsel thereafter made some brief submissions.
The consequences of the mother’s deliberate refusal to comply with an order calls into consideration the provisions of Part 10.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
In that respect, r 10.25 and r 10.26(1) provide as follows:
10.25 Application of Part 10.6
Nothing in this Part is intended to limit the court’s powers in relation to contempt or sanctions for failure to comply with an order.
10.26 When a party is in default
(1) For the purposes of rule 10.27, an applicant is in default if the applicant fails to:
(a)comply with an order of the court in the proceeding; or
(b)file and serve a document required under these Rules; or
(c)produce a document as required by Division 6.2.2; or
(d)do any act required to be done by these Rules or the Family Law Regulations; or
(e)prosecute the proceeding with due diligence.
The mother, who is the applicant, has failed to comply with an order of the Court, such an order being as referred to earlier, an order of the return of the children to Australia.
Rule 10.27 provides the consequences of such failure to comply with an order. They include:
10.27 Orders on default
(1) If a party is in default, the court may do any of the following:
(a)order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party;
(b)set aside a step taken or an order made;
(c)order that a step in the proceeding be taken within the time limited in the order;
(d) order costs;
(e)prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f)make any order that is to take effect if the party does not take a step ordered by the court in the proceeding in the time limited in the order;
(g)proceed on the non‑defaulting party’s evidence together with:
(i)if considered appropriate by the court—such evidence as the defaulting party has filed; and
(ii)such evidence as tendered during cross‑examination by the defaulting party; and
(iii)submissions by either party limited to the matters that are the subject of evidence;
(h)in exceptional circumstances—proceed on the non‑defaulting party’s evidence without hearing from the defaulting party.
(2)The court may make an order of the kind referred to in subrule (1), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the court thinks just.
I am not satisfied that there are any extenuating circumstances that would warrant the exercise of a discretion in favour of the mother in the circumstances of her brazen refusal to comply with an order.
In those circumstances, I will dismiss the mother’s interim relief as contained in her Initiating Application sealed 21 October 2024.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 21 February 2025
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