Woods & Holmes (No 2)
[2025] FedCFamC1F 404
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Woods & Holmes (No 2) [2025] FedCFamC1F 404
File number: CAC 217 of 2024 Judgment of: GILL J Date of judgment: 20 June 2025 Catchwords: FAMILY LAW – PARENTING – Interim parenting arrangements following the return of the child to Australia under the Hague Convention – Where the father resisted foreign orders to return the child to Australia – Where the child is comfortable in the care of both the parents but has expressed a preference for primarily living with the father – Where the father’s previous non-compliance with Court orders suggests risk of retention which would be psychologically harmful to the child – Child to live with the mother and spend supervised time with the father – Injunctions. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 62G Cases cited: Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Eastley & Eastley (2022) FLC 94-094; [2022] FedCFamC1A1 101
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 81 Date of hearing: 13 June 2025 Place: Canberra Counsel for the Applicant: Ms Davis Solicitor for the Applicant: Robinson + McGuinness Family Law Counsel for the Respondent: Dr Leslie Solicitor for the Respondent: Farrar Gesini Dunn 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:
20 JUNE 2025
THE COURT ORDERS THAT:
1.Ms Woods (“the mother”) has sole parental decision making responsibility for X (also known as X) (“the child”), born 2018.
2.The child live with the mother.
3.Orders 3 and 4 of 12 May 2025 and orders 1 – 4 of 27 May 2025 are discharged.
4.To the extent that they have not already done so, the parties shall forthwith enrol in and do all steps to engage in the supervised contact program with K Family Services, or L Family Services, or such other entity as agreed in writing by the parties.
5.Mr Holmes (“the father”) shall have contact with the child, at a frequency of no less than once each week, professionally supervised by K Family Services, or L Family Services, or such other entity as agreed in writing by the parties with such times, frequency and location as arranged by that service, with the costs to be paid by the father.
6.The father shall have electronic communication with the child via Facetime or phone call twice per week at times as agreed between the parties in writing and, failing agreement at 5pm each Saturday and Thursday.
7.Subject to Orders 5 and 6 above, pursuant to s 68B of the Family Law Act 1975 (Cth) 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)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;
(c)Removing or attempting to remove the child from the care of the mother or the mother’s nominee, including by third party; and
(d)Taking the child into his care or having the child in his care.
8.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; and
(b)Other than through the parties’ legal representatives, 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 purposes of Order 6 herein.
AND IT IS NOTED THAT:
A.The above Order 7 pursuant to s 68B of the Family Law Act 1975 (Cth) is an injunction made for the personal protection of the child to which s 68C would apply and accordingly any police officer made aware of these orders and who on reasonable grounds believe that such orders and injunctions have been breached by the father, by either harassing, molesting, talking to or physically harming or threatening to harm the child, may arrest the father without warrant.
B.The above Order 8 pursuant to s 68B of the Family Law Act 1975 (Cth) is an injunction made for the personal protection of the mother to which s 68C would apply and accordingly any police officer made aware of these orders and who on reasonable grounds believe that such orders and injunctions have been breached by the father, by either harassing, molesting, talking to or physically harming or threatening to harm the mother, may arrest the father without warrant.
IT IS FURTHER ORDERED THAT:
9.This matter is listed for interim hearing on 4 July 2025 at 10.00 am before Justice Gill for hearing of the mother’s Notices of Objections filed 12 June 2025.
10.The parties are to file and serve written submissions by 4.00 pm on 2 July 2025.
AND:
11.Pursuant to s 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer is appointed for the child:
(a)X, born 2018
12.Legal Aid ACT is requested to make arrangements as soon as possible for appropriate representation for the children and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.
13.Each party make available to the Independent Children’s Lawyer within 7 days of notification or filing of the Notice of Address for Service copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
14.Leave is granted to the Independent Children's Lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter and/or as is reasonably requested by a party.
15.The Independent Children’s Lawyer is exempt from paying fees associated with the issuing of subpoena material.
16.The Independent Children’s Lawyer shall be at liberty to provide to counsel or any expert witness appointed in the proceedings, copies of material filed by the parties and/or copies of material produced under subpoena or pursuant to a section 67ZBD and/or 67ZBE order providing that the Independent Children’s Lawyer ensures that all such material is destroyed or returned to the Court at the end of the appeal period following the finalisation of the proceedings.
AND:
17.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and child attend upon a Court Child Expert (practicing under their appointment as a family consultant) for the purposes of a preparation of Family Report (“the Report”), such Report to be released at the next available opportunity and that the Report address:
(a)The arrangements that will promote the safety of the child, in particular the emotional and psychological safety of the child;
(b)Any views expressed by the child and any matters that may affect the weight to be placed upon those views, whether by virtue of the child’s maturity, or level of understanding, or the child being subject to influence or otherwise;
(c)The child’s developmental, psychological emotional and cultural needs;
(d)The nature and characteristics of the relationships between the child and the father and the child and the mother;
(e)The capacity of the mother and father to provide for child’s needs, including as to their insight into child’s needs;
(f)The impact the father’s removal and retention of the child has had on the child; and
(g)Any other matters that the Court Child Expert considers important to the welfare and best interests of the child.
18.Not later than 4.00 pm on 27 June 2025 the parties must provide their contact telephone numbers and email addresses to …@...
19.Each party will do all things necessary to ensure that the child attend upon the Family Consultant pursuant to s 62G(3A), unless otherwise determined by the Court Child Expert that section 62G(3B) applies.
20.The parties and the child must attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
21.The Court Child Expert shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Any section 67ZBD or 67ZBE, or subpoena material produced in these proceedings.
(b)Any other relevant material presently before the Court in admissible form.
22.Upon the Report being provided to the Court, the Court will release the Report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
23.Unless a party objects in writing within 14 days of the date of releasing the Report, a copy of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
24.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
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 Woods & Holmes has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
This matter concerns the temporary living arrangements for X, born 2018, aged seven, who is the child of Ms Woods and Mr Holmes, pending final determination of the matter.
This hearing takes place in the context of temporary orders being made on short notice, and on the basis of incomplete material, on 12 May 2025. Those orders provided for X to live with the mother, to have electronic communication with the father, and for injunctive protections against the father. Further orders were made pending the release of a Child Impact Report (“CIR”) on 27 May 2025 that provided for professionally supervised time to take place between X and the father.
In general terms, set out in more detail below, the context calling for such an urgent response was X’s pending return from Portugal with the mother following the father’s retention of X in Portugal, subsequent Hague Convention proceedings, and an apparent non-compliance by the father in relation to the orders for X’s return as made by a Portuguese Court.
ORDERS SOUGHT
The mother seeks orders that X live with her, that she hold sole parental responsibility, that X have professionally supervised time with his father, and that various protective injunctions be made.
Whilst prior to the release of the Child Impact Report the father sought that X live with him, and spend only supervised time with the mother, following the release of that report the father changed his position. He now seeks orders that pending his imminent relocation to Canberra, X live with the mother and spend weekend time with the father, transitioning to week about time following the anticipated relocation. The father seeks that no order in relation to parental responsibility be made, and, therefore, that such be jointly held by the parents.
MATERIAL RELIED UPON
As provided in her case outline, the mother relied upon the following documents:
(a)Application in a Proceeding filed 9 May 2025;
(b)Affidavit of Ms Woods and annexures filed 20 May 2025;
(c)Outline of Case document filed 12 June 2025;
(d)Tender Bundle;
(e)Affidavit of Ms Woods in reply and exhibit book filed 23 May 2025;
(f)Affidavit of Ms M filed 2 July 2024;
(g)Affidavit of Ms Woods and exhibit booked filed 11 June 2025; and
(h)Affidavit of Ms N.
As provided in his case outline, the father relied upon the following documents:
(a)Affidavit of Mr Holmes filed 20 May 2025;
(b)Affidavit of Mr Holmes filed 23 May 2025;
(c)Affidavit of Mr Holmes filed 11 June 2025;
(d)Amended Response to Initiating Application filed 11 June 2025;
(e)Child Impact Report dated 10 June 2025; and
(f)Outline of Case document filed 12 June 2025.
Principles
The paramount consideration in determining what parenting orders should be made is, pursuant to s 60CA of the Family Law Act 1975 (“the Act”), the best interests of X. Those best interests are to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects set out in s 60B of the Act, and pursuant to s 60CG, in a manner that does not expose a person to an unacceptable risk of family violence.
Given the interim nature of the proceedings, there are significant limits that are imposed upon the manner of dealing with the s 60CC considerations in determining best interests. Such limitations were identified by the Full Court in cases such as Salah & Salah, where it was observed that “it is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial.”[1] Reflecting the earlier case of Goode & Goode, it was accepted that the Court in interim proceedings should avoid being drawn into:
…issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute...[2]
The Court is also to look to those matters that are supported by corroborative evidence, particularly from what may be considered independent sources.
[1] (2016) FLC 93-713 at [36].
[2] (2006) FLC 93-286 at [68].
Importantly, however, and consistent with the need pursuant to s 60CC(2)(a) to consider arrangements to promote the safety of the child and the child’s carers, Eaby & Speelman identified that such an approach “does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.”[3]
[3] (2005) FLC 93-654 at [18].
That is, the Court, despite the limitations on testing the evidence and the inability to make concrete findings, is still required to give consideration to issues raised, such as those of risk and, as SS & AH identified:[4]
[4] [2010] FamCAFC 13 at [100].
…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 the context of interim proceedings, and the inability of the Court to test evidence and reach ultimate factual conclusions, it is important to recognise the nature of the court’s assessment of safety and risk. In Isles & Nelissen,[5] the approach to risk was adopted (at [50]) from Fitzwater v Fitzwater as:[6]
[A] predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.
(Emphasis in original)
It was accepted that this is an exercise to be undertaken even where the underlying facts cannot necessarily be determined one way or another. For example, the court accepted from Fitzwater that:[7]
It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis v Nikolakis [2010] FamCAFC 52 at [41], [44], [49]–[53], [96]; Partington (aka Bande) v Cade (No 2) (2009) 42 Fam LR 401; (2009) FLC 93-422; [2009] FamCAFC 230 at [56]–[61]; Johnson v Page (2007) FLC 93-344 at 81,888–9; [2007] FamCA 1235 at [68], [71], [76], [77]).
(Emphasis in original)
[5] (2022) FLC 94-092 (“Fitzwater”).
[6] (2019) 60 Fam LR 212 at [138].
[7] At [140].
It can be seen that this approach to the assessment of safety and risk is well adapted to the character of interim proceedings where controversial underlying facts are unable to be determined.
In this case, significant emphasis is placed by the parties not only upon issues of safety, but also on the capacity of each party to provide for X’s needs, X’s views, and the nature and benefits of the relationships that he has with each of his parents.
Brief relevant history
The parties commenced their relationship in mid-2016.
X was born in 2018 and is now aged seven.
The parties are in dispute as to X’s care arrangements during the relationship. They agree that X would sleep with the father in a separate room to the mother, and that the mother had care of X during daytime periods when the father was absent from the home working.
The father contends that X was exposed to family violence perpetrated by the mother, by shouting, hitting walls, throwing things, threatening X with a knife, and on an occasion smacking X when he had run away from the mother in a public place. He contends that the mother, who has at times struggled with her mental health, was compromised in her ability to parent X.
The mother accepts that she has thrown items, that she struggled with her mental health, and that she smacked X. She also accepts that she struck the father on his legs on one occasion. She contends that the father undermined her parenting by his criticism and by exercising control over her interactions with X that continued post separation.
The parties separated in early 2022, with the father and X moving to a separate residence in March 2022. They agree that post separation X stayed with the father, and that X did not have overnight time in the care of the mother. They agree that the mother had ad hoc (but frequent) time with X. She asserted that the scope of time that she spent with X was determined by the father and that she felt that she had little option but to comply. The father contends that his frequent presence during times that X spent with the mother, and the lack of overnight time, was necessary to ameliorate the risk of X being exposed to adverse behaviour on the part of the mother.
The parties agree that an incident occurred in late 2023 where the mother’s boyfriend confronted the father (in X’s presence) in an aggressive manner. The confrontation appeared to be in relation to the dispute between the parties about the mother having a dog and X being exposed to the dog. The mother agrees that her boyfriend’s approach was inappropriate but denies that it was threatening.
Travel to Portugal
The father is of Portuguese heritage, being a dual citizen of that country and Australia. He wanted to take X to Portugal for a holiday at Christmas time 2023. Although the mother appears to have been open to travel taking place, he did so without the mother’s specific agreement as to the travel, the timing of the travel, or otherwise as to its terms. Specifically, the mother did not agree to X being removed in a manner that prevented him seeing her at Christmas. The father did, however, remove X in such a manner, and without notice to the mother.
Contending that he intended to return with X to Australia by the end of January 2024, the father says that he had a change of heart on seeing how happy X was in Portugal. He determined, without reference to the mother, to retain X in Portugal such that X would live there with him. In his absence, he caused his home in Canberra to be packed up.
X then had no contact with the mother until the Portuguese Court intervened and required the father to provide for electronic communication between X and the mother in October 2024. The father’s contention that he sought to provide for X having contact with the mother by an application to the Portuguese Court, made by him in February 2024, rings hollow in this context. At no point does the father indicate any substantive impediment to arranging for X to have communication with the mother whilst he was in Portugal, and so the need for an application by him to the Portuguese Court to facilitate such is not apparent. Rather, the father’s conduct in providing no contact with the mother is at least suggestive of an intent to displace the mother from X’s life. It is at this stage premature to make any positive finding to that effect.
On 9 February 2024 the mother commenced proceedings in Australia and promptly engaged with the Central Authority. Hague proceedings were instituted in Portugal, seeking X’s return to Australia. As noted above, orders in October 2024 provided for the mother to have electronic communication with X. Those proceedings continued, and as part of the assessment process orders were made for the mother and X to spend face to face time in Portugal. This occurred in January 2025, under the supervision of a Portuguese welfare officer. The report to the Court indicated that this was a positive interaction. It may be noted that at the time of this interaction X had not spent face to face time with the mother since late 2023.
In March 2025 the Region P District Court Town Q General Jurisdiction (the Portuguese Court) made an order prohibiting the removal of X from Portugal, and for X’s passport to be surrendered to the court.
The father resisted the application for X’s return, arguing in part that there was a clear risk of exposure to physical and psychological danger and an intolerable situation if X was to be returned. That is not a position that he now maintains in these interim proceedings.
The Portuguese Court ordered in March 2025 that the father was to return X to Australia within ten days, by early April 2025. The order provided for the father to plan the trip, accompany X, and required him to liaise with the Portuguese Central Authority, as well as the mother. The order noted that failure to comply would lead to warrants being issued for X’s detention, to be carried out by police and the welfare agency.
The events that then took place are key to the mother’s case that X is not psychologically safe with the father.
In early April 2025 the father applied to extend the time for return to late April 2025. In that application he asserted that he had already planned travel to Australia for that day and identified the particular flights to be used. In support of these contentions the father supplied a travel plan that appeared to indicate bookings for himself and X, to depart City R in late April 2025. He advised the Court through his lawyers that the flight would depart on that day at 8.25 am.
As part of the justification for the delay the father asserted that he would appeal the decision. The Court determined however, that no appeal requiring determination had been lodged. The appeal, to the extent that one had been lodged, was dismissed. However, in April 2025 the Portuguese Court extended the time for the return of X as sought by the father to late April 2025.
In late April 2025 the Portuguese Court amended its previous order on the basis that the father had deceived the Court in respect of the purchase of tickets for travel to Australia booked for the following day. Instead, the father had attempted to remove the child from Portugal and to a non-Schengen country (although the father had not been successful in doing so, being intercepted at passport control prior to departing for Country O). As a result, orders were made by the Portuguese Court providing that rather than remaining with his father following the return process, X would be returned to the mother, with the police to escort X to the flight.
This result flowed from the detection of the father and X at a port in Country J. Although the Portuguese Court had forbidden removal of X from Portugal other than in accordance with the orders to return to Australia, the father removed him to Country J, such that he was located at passport control in Town S at 4.10 pm in late April 2025.
The father was interviewed by the Country J SIRENE authorities (an EU cooperation that, amongst other things, deals with child abduction, missing persons, extraditions and requests by judicial authorities and the like), and relevantly told them that:
(a)He was intending to take X to Country O, and to return on the last ferry to Town S, and then look for a hostel in City T. No documents were provided to support these representations (other than boarding passes for the trip to Country O).
(b)He had travelled with X from Portugal by car but had left his car at a repair shop with its keys as it was out of order.
(c)He intended to withdraw money from an ATM on the following day and then purchase a flight to Australia for X.
It may be observed that, not only had the father not obtained the tickets that he advised the Portuguese Court he had in order to secure an extension of time for the return, but his location in Town S, and his attempt to board a ferry to Country O at 4.10 pm was inconsistent with an intention to arrange for X to travel on the nominated flight from City R the next morning.
Rather, the conduct was consistent with an attempt to remove X to Country O, and to avoid the obligation to return X pursuant to the orders of the Portuguese Court.
As a result, warrants were issued that provided for X to be transported by police to meet the 8.10 am flight from City R. X and the father were then transported by police in an unmarked vehicle, in plain clothes, to City R.
However, X was unable to board the flight due to the lack of an Australian passport, the father having not obtained the appropriate travel documents for X.
As a result, a further warrant was issued that provided for X to be taken into State care pending the arrival of the mother.
While X was retained in State care the father then travelled to Australia.
The mother arrived in Portugal in late April 2025 and collected X from the State care institution. She took steps to secure a passport to allow X to be returned to Australia.
The father attended the Canberra Registry of this Court on 7 May 2025, and orders were made listing the matter for interim determination on 12 May 2025.
On 12 May 2025 the mother was able to obtain an emergency Australian Passport for X.
Orders were made in this Court providing for X to remain in the care of the mother following his return to Australia, and for the further hearing of the matter. Subsequently, orders were made for the preparation of a CIR.
The mother and X returned to Australia in May 2025.
Further orders were made on 27 May 2025 that continued X living with the mother pending the release of the CIR, but allowing for supervised time between X and the father.
Despite the above order for supervised time, none took place. The parties disagreed as to whether the supervision should be onsite, and as to the frequency. As a result, whilst the mother executed the intake documents, the father did not.
The Child Impact Report
The CIR recommended that X remain in the mother's primary care at present, to maintain some consistency for him, subject to assessment as to risk in the mother’s care. Similarly, the resumption of face-to-face time with the father was recommended, subject to a requirement for supervision to deal with risk of flight.
The report writer identified limitations in both parents’ capacity. In the mother’s case, issues arose as to the impact of her mental health on her parental capacity, and her insight into the impact that her actions (such as throwing plates) may have had on X. The father was observed to struggle to recognise the significant impact of his behaviour upon X’s sense of self or identity by his removal of X and isolation of X from the mother.
X said to the report writer that he had never felt scared or afraid spending time with either his mother or his father. He said that he would like to spend a 10/4 split, predominantly with his father, across a fortnight. The report writer expressed reservations in relation to X’s expression of his views due to the disruption he has faced, the potential impact upon his sense of safety and security, and the potential for this to cause X to fear losing his currently stability.
Consideration
The issue of what parenting arrangements are in X’s best interests is made complex by the father’s retention of X in Portugal, and in particular by his conduct in relation to X’s return, as those matters bear upon his parental capacity, and X’s psychological needs and psychological safety.
Neither parent pursues a case based upon risk of physical harm to X, as evidenced in the father’s revision of his position to seek equal time.
X has now been in the sole care of his mother in excess of a month. Prior to that, he was in the sole care of the father since late 2023. Prior to that, following separation, X was in the primary care of the father, but also in the significant care of the mother.
Despite the disruption, X appears comfortable in the care of the mother, and previously well settled in the care of the father. His expressed preference is to be in the care of both parents, but predominantly the father.
The particular risk issues in relation to the father flow firstly from the risk of retention of X, and removal of X, either in Australia or abroad. Secondly, they flow from a risk of influence by the father over X to undermine his relationship with the mother, in circumstances where the father exhibits limited insight into the impact of his behaviour on X, particularly as to the potential impact on X’s mental wellbeing.
If X was removed and retained by the father, X would be subjected to disruption and again be isolated from his mother.
Against such a risk the father observes that X is subject to a watch list order which reduces his capacity to remove X internationally even if he wanted to. That is, the scope for retention of X is reduced. Often this may be regarded as a sufficient protection, at least against international abduction, although it cannot be assumed to be a complete answer to the prospect of international removal.
The father further observes that, given the current position, where his failure to comply with Court orders has seen him limited in his contact with X, he understands that any removal of X by him would likely result in an even more restrictive regime, which forms an obvious disincentive for him to remove X.
Further, he observes that his current position, that seeks that X be in the mother’s primary care pending his move to the Canberra region, and then in equally shared care, is not a position of minimisation of the mother’s role. He submits that this evidences that, at present, he holds an appropriate attitude to support X’s relationship with the mother. Correspondingly, he submits that such a position on his part undermines the notion that he would either remove X or undermine X’s relationship with the mother.
The father also observes that, despite the retention of X, and the lengthy period where X had no contact with the mother, X has now demonstrated a comfortable relationship with the mother, which he points to as indicative that he did not actively undermine the mother to X during the hiatus.
As submitted by the father, each of these matters point to an amelioration of risk of psychological harm to X.
Further, the father points to the importance for X of the relationship with the father. It cannot be ignored that the father has played a most significant role in the care and development of X, and that it is a relationship of great importance to X.
Despite those submissions, there are reasons to consider that there is a high risk of retention, or of the father undermining of the relationship between the mother and X.
That high risk flows from the circumstances of X’s retention in Portugal, and then the father’s alleged conduct in relation to the Court ordered return. Whilst the facts await determination in the context of a final hearing, the evidence is sufficient to indicate circumstances that point to significant risk to X.
The retention of X bore the following characteristics:
(a)Unilateral international removal;
(b)Extended retention in Portugal;
(c)Resistance to return;
(d)Blocking of contact between the mother and X until intervention of the Court, leading to a hiatus in contact for about ten months without any reasonable justification;
(e)In support of an extension of time, deception of the Portuguese Court as to the booking of flights having taken place for late April 2025;
(f)Removal of X from Portugal contrary to Court orders;
(g)An attempt to remove X to Country O and out of the Schengen zone; and
(h)Behaviour inconsistent with an intention to comply with the requirement to return X in late April 2025.
Although, given the interim nature of the proceedings, it is premature to make specific findings as to the intention of the father, each of these aspects is well supported by independent evidence, and each is indicative of risk. The prolonged nature of the separation from the mother, and the nature of the steps taken as set out above, point to risk.
The circumstances are highly suggestive of an intention on the part of the father, having firstly removed X to, and retained him in, Portugal, to defeat the obligations placed on him by the Portuguese Court by another removal of X, this time to another continent. Whether this was in truth the father’s plan or intention remains to be determined. However, the evidence brought in these interim proceedings is sufficient to establish a risk commensurate with such a potential, as contemplated in cases such as Eastley & Eastley.[8]
[8] (2022) FLC 94-094.
The accompanying risk is of psychological harm from either retention or undermining of the relationship with the mother. The previous retention points to a significant deficit in the parenting capacity of the father, in his understanding of, and willingness to support the relationship between X and the mother. It points to his willingness to take extreme steps to separate X from the mother, including deception of a Court and defiance of Court orders.
When the risk of retention or removal is considered along with the apparent attitude to the significance of the mother in X’s life, the risks together should be assessed as unacceptable, absent further protective measures, and pending a more fulsome hearing of the matter. This is the case despite the matters carefully identified by counsel for the father as set out above that may be considered to mitigate the risks.
The required and proportionate further protective measure is the continuation of the requirement for professional supervision. Not only does professional supervision act as a deterrence to removal and retention, it provides both a direct safeguard against such, and provides for immediate notification of authorities should a retention take place. At the same time, it provides for ongoing contact between the father and X. It also provides protection against the father engaging in conversations and conduct with respect to X that may be designed to undermine X’s relationship with the mother.
The high conflict nature of this case means that the sharing of parental responsibility for the making of long-term decisions is not, at present, in X’s best interests. It cannot be anticipated that a requirement for cooperative decision making is something that the parties could do. Allowing both parties to make long-term decisions, as permitted by joint parental responsibility, leaves open the prospect of conflicting decisions being made for X (as seen in the father’s retention of X unilaterally in Portugal).
Under the circumstance that X will be in the sole care of the mother pending further decision, it is in his interest that the mother be able to make long-term decisions for X unhindered by the need for cooperation in reaching such a decision. It is, however, appropriate that the father know of such decision promptly.
It is also appropriate, given the identified risk as set out above, that injunctive protections be maintained for the protection of X. It is appropriate, as supportive of X’s welfare, that the mother as his sole carer also be accorded the security brought by an injunction preventing the father from approaching her, her home, her employment, or contacting her other than in relation to the operation of the orders. Given the poor state of the parties’ relationship, the allegations of family violence, and the extreme nature of the father’s conduct in the previous removal and retention of X, injunctive protection is appropriate.
The injunctions will not, however, include the paragraph (b) as sought by the mother in respect of both X and the mother as the balance of the injunctions sought provide sufficient protection, and (b) is uncertain in the scope of its operation.
CONCLUSION
Orders will be made for the mother to hold sole parental responsibility for X.
Orders will be made for electronic contact and for professionally supervised time, supported by injunctions for X’s personal protection to prevent retention by the father. This will persist pending the preparation of a Family Report pursuant to s 62G, which may be expected to be ready by September 2025, a reasonably short time away.
The parties did not address the Court as to the payment arrangements for supervision. In the short-term the father will bear those expenses, where he has demonstrated some financial capacity by virtue of his international movements.
It may be anticipated that further consideration will need to take place following the release of such a report.
There has, however, already been some frustration in the process of arranging supervision. Each party lays the blame at the feet of the other, the dispute seemingly being limited to the frequency and location of the supervision.
The orders will provide for professional supervision without any particular requirement that they occur on premises, and will allow for different agencies to be used. The particular arrangements, including whether the time takes place on a service provider’s premises, will be a matter within the discretion of the service provider. Further, insofar as the parties are at odds regarding frequency, to the extent that the service is available, supervised visits should take place no less than weekly.
The orders will provide injunctive protections for the mother and X.
An order will be made for the appointment of an Independent Children’s Lawyer, given the possibility for significant restrictions to be placed upon any future relationship between X and the father.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 20 June 2025
0
4
1