Woods & Holmes
[2025] FedCFamC1F 312
•12 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Woods & Holmes [2025] FedCFamC1F 312
File number(s): CAC 217 of 2024 Judgment of: GILL J Date of judgment: 12 May 2025 Catchwords: FAMILY LAW – CHILD ABDUCTION – where father unilaterally relocated child internationally – where mother commenced proceedings under Hague Convention on the Civil Aspects of International Child Abduction in foreign court – where child now to be returned to Australia – pending further interim hearing – orders made for child to live with mother on interim basis – father restrained from relocating or approaching child – child placed on Airport Watchlist Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 12 May 2025 Place: Canberra Solicitor for the Applicant: Mr Robinson, Robinson McGuiness Solicitor for the Respondent: Litigant in person ORDERS
CAC 217 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WOODS
Applicant
AND: MR HOLMES
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
12 MAY 2025
THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:
1.The child, X, born 2018, live with Ms Woods (‘the mother’).
2.The father, Mr Holmes, born 1973, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated by Part VII of the Family Law Act 1975 (Cth) from removing or attempting to remove, or causing or permitting the removal of the child X, born 2018, from the Commonwealth of Australia
AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.
3.Pursuant to s 68B of the Family law Act 1975 (Cth) Mr Holmes (‘the father’) is restrained by injunction from:
(a)Approaching the child, or attending upon or being within 100 metres of the child’s place of residence, school or any extracurricular activity location;
(b)Dwelling in or frequenting the locale of the child’s place of residence, school or any extracurricular activity;
(c)Contacting or communicating with or attempting to communicate with the child, by any means, including by third party, or by telephone, electronic platform such as SMS, iMessage, Facebook, Skype, Instagram or other social media, except as permitted by these Orders, save for the purpose of the father communicating with the child via FaceTime or phone call no more than twice per week, at times as agreed between the parties in writing;
(d)Removing or attempting to remove the child from the care of the mother or the mother’s nominee, including by third party; and
(e)Taking the child into his care or having the child in his care.
4.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is restrained by injunction from:
(a)Approaching the mother or attending upon or being within 100 metres of the mother’s place of residence or employment;
(b)Dwelling in or frequenting the locale of the mother’s place of residence or employment; and
(c)Contacting or communicating with or attempting to communicate with the mother by any means, including by third party, or by telephone, electronic platform such as SMS, iMessage, Facebook, Skype, Instagram or other social media, except as permitted by these Orders, save for the purpose of communication in writing to organise contact in accordance with these orders by electronic means between the father and the child.
5.The matter is listed for interim hearing at 10am on 27 May 2025 with such being an in-person appearance.
6.Each party is to file and serve a single consolidated affidavit from themselves and each person that they otherwise intend to rely upon by 4pm on 20 May 2025.
7.In the event that matters arise in the other party’s material that require a reply, then each party is entitled to file and serve such material strictly reply by 4pm on 25 May 2025.
8.Each party is to file and serve a case outline document two days prior to the hearing.
9.Pursuant to s 67ZBE of the Family Law Act 1975 the Australian Federal Police is to provide to the Court by no later than 4:00pm on 26 May 2025 any documents and any information in its possession or control relating to the matters in s 67ZBE(2) in relation to:
(a)X, born 2018 (child);
(b)Mr Holmes, born 1973, address not disclosed to the court (father of the child);
(c)Ms Woods, born 1978, G Street, Suburb H ACT, (mother of the child);
for the period from January 2018 to 12 May 2025.
THE COURT NOTES THAT:
A.The documents to be provided by the Australian Federal Police pursuant to Order 9 above may relate to documents or information relating to the following matters set out in s 67ZBE(2):
a.abuse, neglect or family violence to which a child to whom the proceedings relate has been, or is suspected to have been, subjected or exposed;
b.family violence to which a party to the proceedings has been exposed, or in which a party to the proceedings has engaged, to the extent it may affect a child to whom the proceedings relate;
c.any risk or potential risk of a child to whom the proceedings relate being subjected or exposed to abuse, neglect or family violence;
d.any risk or potential risk of a party to the proceedings being subjected to, or engaging in, family violence, to the extent any such family violence may affect a child to whom the proceedings relate.
B.Material may be redacted pursuant to s 67ZBF.
C.Pursuant to s 67ZBK the parties are restrained from issuing any subsequent subpoena to the Australian Federal Police to provide documents or information in relation to these proceedings, except with the leave of the Court.
D.Pursuant to s 67ZBH(1) the Court must admit into evidence any particulars, documents or information provided under an order made under s 67ZBE, or under subsection 67ZBE(5), on which the Court intends to rely.
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).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
These proceedings concern the child of the relationship X, who is aged about seven years at present. The proceedings involve the temporary parenting arrangements for X, before the matter can be brought back to the court and the parties each be enabled to place appropriate material before the court to determine what temporary arrangements best serve X’s best interests. The timeframe for doing that is that an interim hearing will be listed for 10am on 27 May 2025 and the parties will be required to file their primary affidavit material addressing those arrangements by 4pm on 20 May 2025.
It is necessary to understand the overarching circumstances of this case. It appears that the parties formed a relationship in 2016 and finally separated in January 2022. They are at odds as to what the arrangements were for X, and in particular who primarily cared for X during that period of time, although it seems open to conclude that each was heavily involved in X’s care. Following separation, it appears that X lived primarily with the father. The father is of Portuguese origin and communicated his desire to take X overseas to visit Portugal in December 2023. The parties were in disagreement it appears, as to whether or not this should happen and if so, for how long it should happen. In any event, X was removed by the father to Portugal for what appears to have been, on its face, a short period of time at the end of December 2023 or start of January 2024. X was not then returned to Australia and had minimal contact with the mother until court proceedings were commenced in Portugal, then allowing the mother to have some electronic communication in October 2024 and to have some face-to-face time with X in January 2025 as part of the preparation of those court proceedings.
The court proceedings in Portugal were instigated by the Australian Central Authority in pursuit of relief under the Hague Convention on the Civil Aspects of International Child Abduction by which it was sought that X be returned to Australia as his habitual place of residence for the determination of the appropriate parenting arrangements. The Guarda District Court determined in March 2025 that X should be so returned. The particular details of how those proceedings unfolded are at present unclear, although the father contends that there were subsequent proceedings by which he sought the stay of those orders unsuccessfully, and by which he sought the appeal of those orders. Regardless, obligations were placed upon the father to voluntarily return X to Australia within the period of 10 days from that date. Although the father contends that this was subsequently extended to approximately 24 April 2025, at this stage it is unclear that that is so. On either event X was not returned to Australia in the company of his father within either of those timeframes. To the extent that the father suggests that there may have been a further extension of time frames, again that is not clearly so.
The mother contends that the father removed X to Country J for the purpose of taking him to another continent by means of avoiding the orders made by the Portuguese District Court. At present the evidential basis for that assertion is tenuous, the mother having relied upon assertions made by her Portuguese lawyer to her, but on information which is not yet apparent to this court. Accordingly, it would be dangerous to rely upon that matter as bearing weight within the proceedings, although it is a matter of some relevance to the assessment of risk.
At present the mother is in Portugal with X and has now secured an Australian passport for X to permit his return to Australia. The father has, in the meantime, returned to Australia without X under circumstances that are not yet clear. What does however seem to be clear is that not only did the father not return to Australia in accordance with the Portuguese orders, but as a result of not having done so X was taken into state care in Portugal for a period of approximately six days to await either his movement to Australia or an attendance by his mother travelling from Australia to Portugal to take him into her care. X is currently in the care of the mother.
The issue that now arises is as to the appropriate arrangements for X pending a further interim hearing in the matter in circumstances where neither party has had a proper opportunity to properly place before the court the information necessary to make an interim determination in the matter. That is said without criticism of either party as the proceedings have come before the court at extremely short notice. However, it appears that the mother will shortly return to Australia with X.
The father points to a number of circumstances that he says means that X should immediately move into his care on his return to Australia. He recites a litany of risk issues wherein he says that the mother has conceded to not only having assaulted him, but having assaulted X and mistreated X, that the mother has demonstrated a suicidal risk and a volatility of temper. He says, and it appears that the mother concedes, that at one point she punched the father in the leg. He says that he has been threatened by the mother’s boyfriend, the mother conceding that her boyfriend has spoken aggressively to him, and he asserts that she has otherwise threatened X, including with a knife. It may be observed that although the father raised a number of these matters with the Portuguese court, in general terms the Portuguese court found that those matters were unproved. That of course will not determine how it is that this court will deal with those matters following a more fulsome hearing. Against those matters, which appears disputed as to their occurrence in many cases and as to their significance, the mother contends that she does not present a risk to X. It may be observed that part of the Portuguese court process involved engagement between X and the mother which was observed by the court to be a positive and warm engagement despite the lack of face-to-face time between X and the mother since December 2023.
Against those risks is a more palpable risk which is demonstrated by the father’s removal and retention of X for an extended period of time in Portugal, his then resistance to a return of X to Australia, and his failure, it appears, to comply with the Portuguese orders in a manner that led to X being placed into state care. These matters points to a potential risk of absconding and abduction even if there are Airport Watch List orders in place on X’s return to Australia. These are matters which require regulation of X’s position so that who he lives with will be secure in the short period of time before the matter comes back before the court for more fulsome determination.
In making these observations I accept that it may be the case that the father is able to point to circumstances which undermine such a complexion being placed upon X’s being left behind in Portugal and his entry into state care, but pending that occurring there is the safety risk which is predominant in determining X’s current arrangements.
The mother seeks a suite of orders to deal with those arrangements. The first deals with the issue of parental responsibility, however it does not appear to me that that is a matter that needs to be resolved in the short period of time before the matter comes on for interim hearing. The mother presses an order that X live with her pending further order, presses an order that X be placed on the Airport Watch List, which is an order to which the father agrees, and presses orders to prevent the father from approaching herself or X. Under the circumstances of the case it is necessary to make this suite of orders for the protection of X from the potential removal and absconding risk, even if that removal is not beyond the boundaries of Australia, or that risk of removal is not reasonably beyond the boundaries of Australia.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 15 May 2025
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