Secretary, Department of Families, Fairness and Housing & Whiting (No 3)
[2025] FedCFamC1F 70
•11 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Families, Fairness and Housing & Whiting (No 3) [2025] FedCFamC1F 70
File number(s): MLC 2577 of 2024 Judgment of: WILLIAMS J Date of judgment: 11 February 2025 Catchwords: FAMILY LAW – HAGUE CONVENTION – CHILD ABDUCTION – ENFORCEMENT – Where a return order to Belgium was made – Where there are orders providing a mechanism for what is to occur in circumstances of non-compliance with the orders – Where the respondent has a history of non-compliance – Warrant activated for the apprehension or detention of the child. Legislation: Family Law Act1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations1986 (Cth) regs 14, 15, 16, 31
Cases cited: Gallo v Dawson (1990) 93 ALR 479
Secretary, Department of Families, Fairness and Housing & Whiting [2024] FedCFamC1F 479
Secretary, Department of Families, Fairness and Housing & Whiting (No 2) [2025] FedCFamC1F 25
Whiting & Secretary, Department of Families, Fairness and Housing (No 2) [2024] FedCFamC1A 245
Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 5 February 2025 Place: Melbourne Counsel for the Applicant: Ms Fisken Solicitor for the Applicant: Department of Families, Fairness and Housing The Respondent: Self-represented litigant ORDERS
MLC 2577 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
Applicant
AND: MS WHITING
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The warrant referred to in paragraphs 16-18 of the Orders made 8 January 2025 be activated.
AND THE COURT NOTES THAT:
A.The applicants contact details are as follows:
A.Ms N
B.…@...
C.04…
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).
REASONS FOR JUDGMENT
Williams J
The application before the Court is brought by the Secretary, Department of Families Fairness and Housing (the applicant) to activate a warrant for the apprehension or detention of a child (“the warrant”), pursuant to regulation 14, 15 and 31 of the Family Law (Child Abduction Convention) Regulations 1986, (“the Regulations”) which was issued pursuant to orders 16-18 of orders made on 8 January 2025.
The respondent, who opposes the application, is the mother of the child, X born 2021 (“the child”), who is the subject of the warrant.
At the conclusion of the hearing, I made an order activating the warrant and reserved my reasons. These are my reasons.
BACKGROUND
On 6 March 2024, the applicant filed an application seeking the return to Belgium of the child, pursuant to the relevant provisions of the regulations (“the Hague return application”). The requesting father is the father of the child. The respondent opposed the return application.
The Hague return application was heard on 8 July 2024, when both parties were represented by experienced counsel. At the hearing of the application, the only issue for determination was the state of the child’s habitual residence. The respondent conceded the remaining jurisdictional facts and did not raise any regulatory exceptions to return. Most significantly, the respondent did not assert that the return of the child to Belgium would place the child at grave risk of harm or intolerable situation. Subsequent to the hearing, judgement was reserved.
On 19 July 2024 orders were made, and reasons delivered which required the respondent to return the child to Belgium within 14 days, subject to the requesting father paying for the flights for the respondent and the child, and the sum of EUR7500 to the respondent, to enable her to obtain accommodation in Belgium.
The background to the dispute between the parties is referred to at paragraphs 20 to 32 of my reasons of 19 July 2024, and I incorporate those paragraphs into these reasons; Secretary, Department of Families, Fairness and Housing & Whiting [2024] FedCFamC1F 479.
On 3 September 2024, the respondent filed an Application in an Appeal seeking leave for an extension of time to file a Notice of Appeal. On 24 September 2024 a registrar granted the respondent leave to extend the time to file a Notice of Appeal.
In her affidavit filed 4 September 2024, in support of the Application in an Appeal, the respondent foreshadowed her intention to seek leave to adduce further evidence about events which she asserted had occurred since the hearing. These events pertained to her assertions of family violence perpetrated by the requesting father. Despite the contents of the affidavit, the respondent, who was represented during the appeal proceedings by two different firms of lawyers, failed to file any application in the appeal proceedings to adduce further evidence pertaining to alleged family violence.
On 5 September 2024, the respondent filed an Application in a Proceeding seeking a stay of the orders of 19 July 2024, pending the determination of the appeal (“the stay application”). In support of the stay application, the respondent swore an affidavit filed 5 September 2024, wherein she again deposed to her intention to seek leave to adduce further evidence in the appeal about significant events pertaining to family violence she alleged had been perpetrated by the requesting father. Solicitors representing the respondent prepared the affidavit on her behalf.
On 4 October 2024 the respondent’s stay application was heard when she was represented by highly competent counsel. On 7 October 2024, I made orders granting the stay.
On 18 November 2024, the respondent filed in the appeal, amongst other documents, a Summary of Argument which stated an intention to file an application to adduce further evidence. No such application was filed. The respondent’s then lawyers prepared the appeal documents on her behalf.
The hearing of the respondent’s appeal took place on 11 December 2024. The respondent was again represented by highly competent counsel. The appeal judgement was delivered on 18 December 2024, which dismissed her appeal; Whiting & Secretary, Department of Families, Fairness and Housing (No 2) [2024] FedCFamC1A 245.
On 18 December 2024, the applicant filed an affidavit seeking an urgent listing before the Court to obtain enforcement of the return orders made 19 July 2024 (“the enforcement application”), together with a suite of default enforcement orders, in the event the respondent failed to return the child to Belgium within the requisite timeframe.
The orders sought by the applicant were as follows:
1.The child, [X] born […] 2021 (“the child”) be returned to Belgium pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
2.The Respondent be at liberty to accompany the child to Belgium.
3.The Respondent to notify the State Central Authority in writing within 48 hours of these Orders as to whether she intends to accompany the child to Belgium.
4.Should the Respondent confirm her intention to accompany the child to Belgium pursuant to paragraph 3 of these Orders, the child be returned within 14 days of the date of compliance by the requesting father, [Mr B] (“the father”) with paragraph 5 of these Orders.
5.The father to pay the sum of EUR 7,500 into the trust account of his Belgium lawyer [Ms O] and provide [Ms O] with an irrevocable authority to release that sum to the Respondent via her nominated bank account immediately upon receipt of written confirmation from the Belgium Central Authority via the Australian Central Authority that the Respondent and child have arrived in Belgium.
6.The State Central Authority is to notify the Respondent upon being advised that the father has complied with paragraph 5 of these Orders. Notification to be via her solicitors, or should they have ceased to act, via the mother’s email address […@...].
7.The Respondent book and pay for the flights providing for the Respondent and child to return to Belgium within 48 hours of the State Central Authority’s compliance with paragraph 6 of these Orders with such flight transits to be only through [Country P] and/or countries which are both members of the European Union and in respect of which the 1980 Hague Convention has entered in force with Belgium.
8.The Respondent provide a copy of the flight itinerary and invoice for the flights referred to in paragraph 7 of these Orders to the State Central Authority within 24 hours of booking the flights.
9.Upon receipt of the flight itinerary and invoice provided by the Respondent pursuant to paragraph 8 of these Orders, the State Central Authority write to the Registry of this Court within 24 hours requesting that any and all passports held in the name of the child may be released to the Respondent.
10.The Registry of the Court release to the Respondent any and all passports held in the name of the child upon receipt of a letter received by the State Central Authority pursuant to paragraph 9 of these Orders.
11.Pending the child’s departure from Australia for return to Belgium, the Respondent continue to be restrained by injunction from
a. Causing and/or permitting the child to be removed from the Commonwealth of Australia and in this regard all offices of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
b. Applying for any further or other passport or passports for the child, or authorising any other person to do so
c. Removing the child from [State M], or permitting any other person to do so.
d. Residing at any location with the child other than her present residential address (insert address details)/
12.Paragraph 11 of these Orders remain in full force and effect until a letter from the State Central Authority is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to Belgium AND IT IS REQUESTED THAT the Australian Federal Police remove the name of the child [X] born […] 2021 from the Airport Watch List:
a. Upon the Respondent presenting with the child to board the nominated flight to Belgium pursuant to the flight itinerary referred to in paragraph 6 or these Orders; or
b. The father presenting with the child to depart Australia for Belgium in accordance with paragraph 15(a) of these Orders.
13.Upon notification from the Belgian Central Authority via the Australian Central Authority that the Respondent and child have departed Australia and arrived in Belgium, the father pay the Respondent such sum as may be required to reimburse the Respondent in full for the invoiced costs of the flights for the Respondent and child to return to Belgium with such amount to be paid into the Respondent’s nominated bank account.
14.The Respondent and father be permitted to provide and rely upon a copy of these orders in any competent court in Belgium or [Country Q].
15.In the event that the Respondent does not comply with paragraph 3 of these Orders:
a. the father be at liberty to come to Australia and collect the child for the purposes of returning the child to Belgium and the obligations on the father to pay the financial amounts pursuant to paragraphs 5 and 13 of these Orders are discharged.
b. the Respondent do all acts and things necessary to and cooperate with the State Central Authority to facilitate the return of the child including but not limited to preparing the child’s belongings for departure to Belgium including the packing of all clothes, belongings, toys, toiletries and medication, if any that might be required by the child for the duration of travel and providing those provisions to the father, at handover as prescribed in 15(c) herein; and
c. the Respondent cause the child to attend at the [City E] Registry of the Federal Circuit and Family Court of Australia […] (“the handover address”), Child Minding Centre on [insert date] (“the handover date”) and cause the child to be delivered to the Father, and immediately upon handover, the Respondent leave the Court complex and thereafter be restrained from interfering with the child leaving the handover address with the Father.
d. the Respondent be, and is hereby restrained by herself, her servants or agents from being at or within 5 kilometres of the airport from which the child’s return flight is to depart on the date of departure; and
e. the Registry of the Court release to the father upon his attendance at the [City E] Registry any and all passports held in the name of the child for the purposes of returning the child to Belgium.
16.A warrant for the apprehension or detention of the child be issued, pursuant to regulations 14, 15 and 31 of the Family Law (Child Abduction Convention) Regulations 1986, authorising and directing the Marshal of the Federal Circuit and Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Victoria Police Force and all other Police Officers in all other states and territories of the Commonwealth to find and recover the child, and to deliver the child to the Applicant or such person or institution as the Applicant nominates.
17.The warrant issued pursuant to paragraph 16 of this Order lie in the Melbourne Registry, and not be acted upon, pending further order of the Court.
18.In the event that the Respondent does not comply with the handover of the child as provided for in paragraph 15(c) of these Orders, the State Central Authority has leave to apply to the Court at short notice for the activation of the warrant issued pursuant to paragraph 16 of these Orders upon the State Central Authority providing to the Senior Registrar of the Court an affidavit setting out the particulars of non-compliance.
19.If the warrant is acted upon and issued, a copy of this Order and the warrant be sent immediately by electronic means to the Australian Federal Police Operations Centre by the Melbourne Registry or the After-Hours Service.
20.Such other orders as the Honourable Court considers appropriate.
21.Parties be at liberty to apply.
Orders 1–14 were almost identical to the return orders made on 19 July 2024, and orders 15‑18 provided for the return of the child, in the event the respondent did not agree to accompany the child to Belgium, or hand over the child at the Court registry to facilitate her return to Belgium.
The enforcement application was heard and determined on 8 January 2025, when orders were made by me in accordance with the Minute prepared by the applicant. The respondent acted on her own behalf at the enforcement hearing. At that hearing, I was satisfied the respondent was aware and understood the obligations to return the child, of which she had been aware since July 2024, and her options to do so. I was also satisfied she had been properly provided with a copy of the orders being sought by the applicant, and the applicant’s affidavit in support of enforcement of the orders sought. Her former solicitor appeared at the hearing to seek leave of the Court to cease representing the respondent, and prior to leave being granted, he confirmed the respondent had been provided with all relevant documents.
At the hearing on 8 January 2025, the respondent again foreshadowed an application to the Court pertaining to family violence she asserted she, and possibly the child, had been subjected to by the requesting father. To date, no such application has been made.
On 13 January 2025, the respondent filed an Application in a Proceeding together with an affidavit in support, seeking a stay of the 8 January 2025 orders and the “initial orders” (“the second stay application”). In her Application in a Proceeding, the respondent stated her intention to file an appeal to the high court. Her covering letter to the Court sought an urgent hearing of her application.
In her affidavit in support of the second stay application, the respondent referred to her lack of legal representation, and her dissatisfaction with the Court and the applicant.
On 15 January 2023, the respondent’s second stay application was listed for determination before the Honourable Justice Carter. The respondent failed to attend the electronic hearing on that day, and orders were made by her Honour as follows:
1.The Application in a Proceeding filed 13 January 2025 be dismissed;
2.The applicant mother notify the State Central authority by 4.00 pm this day, 15 January 2025, whether or not she will accompany the child [X] born […] 2021 to Belgium.
Her Honour published ex tempore reasons for judgement; Secretary, Department of Families, Fairness and Housing & Whiting (No 2) [2025] FedCFamC1F 25.
Subsequent to the decision of Justice Carter, the appellant and the respondent engaged in extensive email correspondence about whether or not the respondent would return the child to Belgium, which is Exhibit D, E and F in this application (“the second enforcement application”). The emails demonstrate at various times the respondent seemed to agree to return with the child to Belgium and in one email to Country Q, but she ostensibly required further time to do so and failed to unequivocally commit to return with the child.
Arrangements were made for the respondent to hand over the child for return to Belgium in the presence of a Court Child Expert at the City E Registry of this Court on 4 February 2025, and the respondent was notified of the arrangements to do so.
Included in Exhibit F is an email from the applicant to the mother dated 30 January 2025 which was sent at 3.02 pm. The relevant parts of the email states as follows:
In the event you do not attend the [City E] registry on 4 February 2025 with [X] at 12.30pm, the State Central Authority has leave to apply to the Court at short notice to activate the warrant for the Australian Federal Police to find and recover [X] which has been issued by the Court.
…
In the event that handover does not occur, the department will be required to take the steps necessary to activate the warrant that same afternoon.
On 4 February 2025 the mother attended the City E Registry of the Court with a support person, however she did not produce the child as she was required pursuant to the enforcement orders.
On 5 February 2025, the applicant filed an affidavit seeking the activation of the warrant, pursuant to paragraphs 16-18 of the orders made on 8 January 2025. The affidavit was served on the mother via email at her usual email address. The applicant sought an urgent hearing.
The second enforcement application was listed before me at 3.15 pm on 5 February 2025. The matter was listed urgently because the requesting father is in Australia until the following week, and he intended to accompany the child to Belgium if the respondent chose not to do so, amongst other reasons.
Documents relied upon
The applicant relied upon the affidavit of Ms N filed 5 February 2025 in addition to several documents tendered by counsel as outlined below.
The respondent did not rely on any documents although on the morning of 5 February 2025, she forwarded to my Chambers via email an Application in a Proceeding seeking a stay of current proceedings and “an application to go to court again with both parties”. The document was not filed, and the respondent did not refer to it during the hearing.
Exhibit Number
Description
SCA-A
Annexure A to the affidavit of Ms N filed 5 February 2025
SCA-B
Annexure B to the affidavit of Ms N filed 5 February 2025
SCA-C
Annexure C to the affidavit of Ms N filed 5 February 2025
SCA-D
Annexure D to the affidavit of Ms N filed 5 February 2025
SCA-E
Annexure E to the affidavit of Ms N filed 5 February 2025
SCA-F
Annexure F to the affidavit of Ms N filed 5 February 2025
SCA-G
Reasons for judgment of Carter J; Secretary, Department of Families, Fairness and Housing & Whiting (No 2) [2025] FedCFamC1F 25
Submissions of the applicant
Counsel for the applicant submitted the Court should activate the warrant, pursuant to orders 16-18 of the enforcement orders made on 8 January 2025, and that there should not be any further prevarication to return the child to Belgium for the following reasons:
(a)The respondent’s non-compliance with respect to the enforcement orders made 8 January 2025.
(b)The applicant has exhausted all other options with respect to the return of the child.
(c)The noncompliance is set out in the affidavit of Ms N filed 5 February 2025. This noncompliance culminated in the respondent mother attending upon the City E Registry on 4 February 2025 without the child as she was required to do pursuant to paragraph 15(c) of the orders made 8 January 2025.
Submissions of the respondent
The respondent made similar submissions to those made by her on previous occasions, including the hearing on 8 January 2025. She reiterated her allegations of family violence against the requesting father, the danger the child would be exposed to if returned to the father’s care, her intention to provide evidence of her allegations, her intention to pursue her allegations in the Australian legal system, her difficulties with past lawyers, none of whom followed her instructions, difficulty in securing future legal representation which is her right, and her dissatisfaction with the Court and the legal system. She perceives herself as a victim of the legal system and believes she has been consistently denied an opportunity to present her “case” to the Court.
CONCLUSION
I accept the submissions of counsel for the applicant and agree the warrant should be activated to ensure the return of the child to Belgium. In reaching my conclusion, I have had regard to the following factors, which collectively persuade me the warrant should be activated:
(a)The respondent did not:
(i)Pursue any grave risk of harm regulatory exception in the initial return proceedings;
(ii)File any application in the appeal to adduce further evidence of asserted grave risk of harm, nor filed any application in the High Court for special leave, despite foreshadowing her intention to do so;
(b)She has been granted numerous indulgences by the Courts, including leave to file a Notice of Appeal out of time, and a stay of the return orders of 19 July 2024;
(c)The respondent’s allegations against the requesting father have become more florid and egregious with the passing of time;
(d)Her representations about the proceedings and orders in Belgium are incorrect, per affidavit of Ms R filed 18 December 2024 at paragraph 8.
(e)The respondent was well aware the child would be returned to Belgium following her unsuccessful appeal;
(f)Every conceivable step had been taken to ensure the respondent was able to return with the child, including payment of airfares and payment of EUR7,500 to enable her to establish herself in Belgium;
(g)Her conduct was deliberately equivocal about whether she would return or not, as demonstrated by the documents exhibited in this hearing;
(h)Appropriate arrangements had been made for the handover of the child to a Child Court Expert;
(i)The respondent was well aware of the consequences of her refusal to accompany the child to Belgium;
(j)The respondent has failed to obtain legal representation, despite her advising the Court as from January 2025 that she intended to do so;
(k)There were no submissions about the likelihood of obtaining legal advice in the immediate future, and indeed the respondent alluded to the financially prohibitive cost of being able to do so;
(l)The respondent has received legal advice during the proceedings from at least four sets of solicitors, and many competent counsel, and she has consistently expressed her dissatisfaction with their advice;
(m)Lack of legal knowledge is a misfortune, not a privilege; Gallo v Dawson (1990) 93 ALR 479 at 481 per McHugh J.
It is most unfortunate the respondent did not unequivocally agree to accompany the child to return to Belgium. She was told on numerous occasions during the various Court proceedings that returning the child to Belgium, with her accompanying the child, would be the least distressing option in circumstances where the respondent unilaterally removed the child from Belgium to Australia without the consent or knowledge of the father, almost two years ago .She is also aware there are extant parenting proceedings in Belgium where she is able to raise her purported grievances against the requesting father.
The respondent is well aware of the consequences and impact of a child being removed from a parent pursuant to a warrant, and she alone has the power to avoid that distressing experience for her child.
The return of the child to Belgium in this instance is consistent with the fundamental obligation to return, as provided in the regulations (Family Law (Child Abduction Convention) Regulations 1986 (Cth).
For these reasons the order to activate the warrant was made.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 11 February 2025
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