Valdez & Giordano [2025] FedCFamC2F 887 (27 June 2025)

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).

1. These are parenting proceedings that were commenced on the 11 January 2024 and parenting orders were made on 25 January 2024. Since that date, there has been both a child impact report and a family report from a Court Child Expert. The matter is currently listed for a final parenting hearing to occur in six weeks' time. On Wednesday at approximately 9:30 pm this Court heard an alleged urgent application to have the child's name placed on the airport watchlist. The child, X ("the child") was born in 2019 and is now six years old.
2. It is apparent from the material in the two reports to which the Court has referred that there are serious allegations of family violence between the parties. This is not the occasion to determine whether that pattern of behaviour gives rise to a characterisation of responsibility in respect of one party over the other, nor is it the occasion to determine what trauma response might have been induced because of that behaviour by the other party. However, the Court is concerned at the nature of the recommendations that are identified in the family report that suggest that the applicant father ("the father") is the person to whom sole parental responsibility might be given in circumstances where it is apparent that there is little prospect of cooperative parenting and little prospect of joint long-term decision making. The issues in relation to family violence and patterns of behaviour are complex. The recommendations in respect of the family report are ones that caused the Court concern in the context of the application that was made to this Court.
3. The application that was made to this Court urgently on an ex parte basis was based on the proposition that the maternal grandmother had conveyed to the father an alleged concern that the respondent mother ("the mother") was taking the child out of Australia and back to Country B. The concern was said to be based on rumour. The application was one where it became apparent on further questions from the Court that the father was aware of a breakdown in an alleged relationship between the maternal grandmother and the mother. That disclosure was only revealed after the Court pressed further questions about the nature of the application. The father conveyed that he had a long-standing fear of the child being abducted to Country B.
4. Moreover, it is apparent in the notice of risk filed by the mother that the issues concerning the mental health of father included the assertion that she was going to abduct the child to Country B. The father also identified that he had raised some time ago the issue of the child's name being place on the airport watchlist with his solicitor.
5. The Court was not satisfied at the time of the making of the ex parte application that there was a prima facie case that justified the placing of the child's name on the airport watchlist, but stood the matter over until today for the purpose of permitting an inter parte application to be heard.
6. The Court was informed at the commencement of the application that the child is at school. More concerningly the Court was informed that a copy of the application for the child's name to be placed on the airport watchlist was somehow forwarded to the AFP, and that the child's name has been placed on the airport watchlist. The application to have the child's name placed on the airport watchlist was the subject of an order declining to make such order on Wednesday 24 June 2025. The Court does not know, on this occasion, what circumstances it came to be that the AFP were contacted and communication was sent to them that resulted in the child's name being placed on the airport watchlist after this Court heard an ex parte application at 9:30pm at night and had made an order at 10:00 pm that the ex parte application to have the child's name placed on the airport watchlist was refused. More significantly a copy of that order was sent to the father and quite how the AFP were sent a copy of the application without the order that clearly identified the child's name was not to be placed on the watchlist is not apparent to the Court at this stage.
7. It is the case that the conduct of the father in using the opportunity to make an ex parte application there might be characterised as system abuse and the type of conduct that would inform a pattern of behaviour relevant to the issue of family violence and will need to be determined at the final hearing in respect to the issue about long term decision making.
8. It is in these circumstances that the Court raised the issue as to whether or not there should be appointed an Independent Children's Lawyer ("ICL") under s 68L of the Family Law Act 1975 (Cth) notwithstanding that the hearing is only six weeks away. There is no opposition to that appointment.
9. Counsel for the father identified that he wished the name of the child to remain on the airport watchlist and that it was relief he was seeking on a final basis. The Court is not satisfied that there is any prima facie case to warrant the child's name being placed on the airport watchlist and is more than concerned about the conduct of the father that caused that to occur notwithstanding that this Court made an order declining to have the name placed on the airport watchlist. That conduct of itself is further concerning in respect of the patterns of behaviour relevant to the potential issues that will need to be determined at the final hearing and further reinforces the need for the urgent appointment of an ICL in respect of the issues to be determined in the parenting application.
10. The Court is not satisfied that there is any prima facie case to warrant the child's name being placed on the airport watchlist. The Court is not satisfied that such an order is in the best interests of the child. The Court is not satisfied that there is any real risk of abduction of the child. The Court appreciates that Country B is not a Hague convention country. However, applications for a name to be placed on an airport watchlist are not matters to be lightly raised where proceedings have been on foot for almost a year and a half and where the very subject matter of alleged abduction was raised in the notice of risk filed by one of the parties as reflecting a potential issue of mental health of the father.
11. The Court is not in a position at this stage to determine what compliance has been undertaken by either of the parties in respect to the recommendations with the various courses that they were to pursue or to make any informed findings about parental capacity. However, the appointment of an ICL in the present case will permit those issues to be properly explored at the final parenting hearing.
12. It is for these reasons the court makes the above orders.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.