Abarca and Kadar - [2018] FCCA 1703

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABARCA & KADAR

[2018] FCCA 1703

Catchwords:
FAMILY LAW – Competing applications regarding final property and children’s proceedings – small property pool – how should debt be allocated between the parties – family violence – application for overseas travel – travel to a country that is not a signatory to Hague Convention - best interests – matters to be considered.

Legislation:

Family Law Act 1975, ss.4AB; 60B; 60CA; 60CC; 61DA; 62G; 64B

Cases cited:
Gin & Hing [2010] FamCA 617
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Bright v Bright (1995) FLC 92-570
Kaur & Kaur [2014] FCCA 2843

Applicant:

MS ABARCA

Respondent:

MR KADAR

File Number:

ADC 1470 of 2014

Judgment of:

Judge Brown

Hearing date:

21 June 2018

Date of Last Submission:

21 June 2018

Delivered at:

Adelaide

Delivered on:

29 June 2018

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

SE Lawyers

Counsel for the Respondent:

In person

Counsel for the Independent Children's Lawyer:

Ms Lindsay

Solicitors for the Independent Children's Lawyer:

Ian Charman & Associates

ORDERS

BY CONSENT THE COURT ORDERS:

That by way of final orders for property settlement in the past, present and future;
(a)That the wife shall retain for her sole use and benefit free from any further claim of the husband:-
(i)Her motor vehicle;
(ii)Her separate savings and investments;
(iii)All furniture, furnishings and personal effects in her possession;
(iv)Her superannuation and other employee entitlements;
(v)Any other property of the wife not otherwise specified.
(b)That the husband shall retain for his sole use and benefit free from any further claim of the wife:-
(i)His motor vehicle;
(ii)His separate savings and investments;
(iii)All furniture, furnishings and personal effects in his possession;
(iv)His superannuation and other employee entitlements;
(v)Any other property of the husband not otherwise specified.
That the parties shall retain rugs in their respective possession for the benefit of the child [X] born 2007 and with the said rugs to be gifted to the child upon his 18th birthday.
Save and except as specifically otherwise provided each of the parties shall be liable and responsible for the payment of debt incurred in his or her name and shall release the other party from any liability in respect thereto.
Subject to the specific provisions of this Order each party does hereby and shall release and discharge the other party from any liability from any claim that either one of them may have against the other in respect to any property either now or hereafter owned by either of them.
That all previous parenting and injunctive orders are hereby discharged.
That the mother do have sole parental responsibility for the child [X] born 2007 (the child).
That the child live with the mother.
That the mother do cause copies of the child’s twice yearly school reports, any medical reports and advise in writing of any medical interventions of significance to be forwarded to the father by his Mackenzie Friend, Mr W, at the following address:-.
That should the child express to the mother a desire to spend time with or communicate with the father, then the mother will facilitate this wish.
That the mother do all things necessary to arrange acceptance of the child into Child & Adolescent Mental Health Services for the purposes of therapeutic counselling of such length as may be suggested and recommended by the therapist who engages with the child.
That the Independent Children’s Lawyer provide to CAMHS a copy of the following documents to assist in the therapeutic engagement and support of the child:
(a)A copy of this Order;
(b)A copy of the trial affidavit of the mother filed 31 May 2018;
(c)A copy of the trial affidavit of the father filed 18 June 2018; and
(d)A copy of the Family Assessment Report by Mr I dated 1 November 2017.

THE COURT ORDERS THAT:

The passport for the child [X] born 2007 be released to the wife by the Registry of this court.
The wife be at liberty to renew the child’s passport upon expiration of the same and that the requirement for the husband’s consent be dispensed with.
The wife be at liberty to travel overseas with the child and that the requirement for the husband’s consent be dispensed with.
Within thirty (30) days of the making of this order the husband do discharge the three thousand three hundred and fifty nine dollars and eighteen cents ($3,359.18) debt outstanding to Real Estate and exonerate the wife in relation to the same.
The appointment of the independent children’s lawyer be discharged.
All applications be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Abarca & Kadar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1470 of 2014

MS ABARCA

Applicant

And

MR KADAR

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment concern controversies about two discrete issues, as a consequence of the parties concerned agreeing the major issues previously in dispute between them. These two remaining issues are in modest compass but require the court’s determination because the parties, although in agreement about major matters, remain at an impasse about them.
This level of apparent consensus, however, is not indicative of any lasting compact between them. Rather they remain mired in longstanding mutual mistrust and animosity for each another. Nor is the comparatively comprehensive nature of what they have agreed indicative of the level of complexity of the issues arising in their case. It is, rather, more reflective of the reality of their situation.
Ms Abarca “the mother” and Mr Kadar “the father” are the parents of [X] born 2007. The mother commenced these proceedings on 29 August 2016, seeking orders in respect of [X] and to settle issues of property between the parties.
In general terms, the wife sought orders that would see [X] living with her and that she would have sole parental responsibility for him. She did not propose any arrangements for [X] to spend time with his father. In addition, Ms Abarca sought a final injunction that would restrain Mr Kadar from coming within the vicinity of her home or otherwise threatening her or [X].
These orders were reflective of a significant history of family violence, in the case, which had resulted in the father being sentenced to a significant term of imprisonment as a consequence of being convicted of assaulting the mother. The father concedes he was so convicted but asserts his conduct is inexplicable by reason of him suffering a significant psychiatric disability at the time of the assault.
It is the mother’s case that [X] was exposed to family violence from his father during the parties’ marriage and, as a consequence is opposed to having any form of relationship with his father. The father’s view is that the mother has actively engaged in efforts to estrange the child from him.
At the time of her application, the parties owned two properties at Property A and Property B, respectively, in suburban Adelaide. The first was their former family home, the second, an investment property. On a final basis, the mother sought the sale of these two properties and the dispersal of the sale proceeds, if any, to pay down debt. In the event any moneys remained, she sought their division 75/25% in her favour.
At present, [X] lives in Adelaide with his mother. She is employed as an (occupation omitted) by the (employer omitted). Mr Kadar lives in Brisbane, where he cares for his elderly mother. He receives a carer’s pension.
It is common ground that the father has not spent any regular time with [X] since 2016, which was around about the time he elected to leave Adelaide and move to Brisbane. In his response, filed in March of 2017, Mr Kadar sought orders that would enable him to see [X] for two weeks every 90 days.
In respect of the property issues, he too sought the sale of the two properties concerned but proposed any proceeds of sale be distributed equally. The tenor of his response was that the mother had not been completely frank with him in respect of moneys received by her, in his absence, particularly in respect of the Property B property, which was an investment/rental property.
On 5 December 2016, a consent order was made by the court which directed the listing for sale of both the Property A property (the parties’ former family home) and the Property B unit (the investment property). Each property has now been sold, but it is agreed no proceeds were released by the sales after the payment of mortgages secured against the properties concerned. From the mother’s perspective, there existed no other items of property of significant value relevant to these proceedings.
After the order was made, placing the properties on the market, the mother instituted interlocutory proceedings dealing with issues relating to the cost of preparing the Property A property for sale. It being her position that the property required urgent repairs otherwise it would not be sold for a price reflective of its value. Initially, she sought some contribution from Mr Kadar for these costs.
Ms Abarca has some funds available to her, which she was able to allocate to the repairs and sought a similar commitment from Mr Kadar. However, as matters transpired, the real estate agent retained to manage the sale, Real Estate, agreed to fund any shortfall in respect of the repair costs, on the proviso that it be refunded on the properties sale.
It is Ms Abarca’s position that, in March of 2017, she forwarded the sum of $7,500.00, to Real Estate to assist with the costs of repair. Mr Kadar did not supply any funds. At present, it is her evidence that an amount of $3,359.18 remains outstanding to Real Estate, which she asserts is Mr Kadar’s responsibility, both legally and ethically.
Due to the complex issues arising in this case, which are attributable to the significant issues of family violence; the fact that the mother’s application envisages a complete severing of [X]’s paternal relationship; and the cultural background of the parties themselves; it was ordered that [X]’s best interests be safeguarded by the appointment of an independent children’s lawyer.
The independent children’s lawyer for [X] is Mr Ian Charman, an experienced Adelaide family lawyer. Mr Charman has retained a barrister, Ms Vanessa Lindsay, to appear, on his behalf, at the final hearing of the parties’ competing applications.
Mr Charman is to be regarded as a party of equal importance to the parents in the case. Pursuant to section 68LA of the Family Law Act 1975, “the Act” Mr Charman and Ms Lindsay are required to form an independent view, based on the evidence available to them, of what is likely to be in [X]’s best interests and then advocate that view to the court.
In anticipation of these final proceedings, on 2 August 2017, the court ordered that a family report be prepared pursuant to section 62G of the Act. The report was prepared by Mr I, who is both a social worker and a family consultant to the court. He has been a family consultant since 2013. Mr Kadar travelled from Brisbane to take part in the assessment process.
In the course of preparing his report, Mr I interviewed [X], whom he described as an “articulate, intelligent and sensitive child, who became increasingly distressed and agitated as he spoke about his father.”[1] At the time of this interview, [X] had not seen his father for the past two years.
[1] See family report dated 2 August 2017 at [65]
In these circumstances, Mr I noted that [X] displayed feelings of abandonment by his father and a sense of disappointment that he had not made any attempt to engage with him ([X]) since moving to Brisbane.
In addition, Mr I noted that [X] expressed strong feelings of dislike for his father, whilst describing him as a very bad man, who had hurt his mother, which he recalled witnessing. In all these circumstances, Mr I summarised his interaction with [X], in the following terms.
“[[X]] made it clear he did not want to see or talk to his father because he was a violent person and he did not feel safe with him, becoming more agitated as he said he did not want to be forced to see him. He was extremely upset about his father’s attempts to block him from leaving (country omitted), describing how he was crying and distressed at the airport because they would not allow him leave the country with his mother. He reiterated that he hated his father, had nothing in common with him and did not ever want to see him again.
He feels much safer and happier with his mother who he described as helpful and loving, teaching him things, taking him to school and generally being nice and kind to him. He was adamant that he wanted to remain in her care and not have any contact with his father at all, claiming his father had never been a real father to him. He did not want to call him by his name or have anything to do with him. The interview was suspended as he became more distressed and agitated, having re-emphasised his hatred and rejection of his father and refusal to be forced to see him as part of this interview process.”[2]
[2] Ibid at [68]-[69]
In all these circumstances, Mr I recommended as follows:
·The mother have sole parental responsibility for [X];
·The child live with the mother and be free to have contact with the father in future via telephone and Skype, at times he may wish to instigate on his own volition, leaving him free to spend time with his father in the future if he so chooses.
It cannot be said that the parties have not been given an opportunity to resolve these proceedings hitherto consensually. The father has represented himself, throughout these proceedings, with the assistance of a community advocate, Mr W.
There has never been any controversy that the parties’ assets are modest and [X]’s relationship, with his father, is beset with all manner of difficulties, not the least of which is the distance between Brisbane and Adelaide and the lack of any direct interaction between the two over several years.
In these circumstances, the parties have been referred to a family dispute resolution conference, a conciliation conference, with a registrar of the court; and a process of private mediation, each of which has not assisted them being able to resolve the matter. Mr W has been helpful in the process and I express my thanks to him for the assistance provided by him, which did ultimately lead to some agreement.
In his documents prepared for the trial and filed on 18 June 2018, Mr Kadar indicated that he sought the following orders in respect of [X]:
·[X] live with the mother, who would share parental responsibility for the child with his father;
·The child receive counselling to assist him to overcome ill feelings towards the father; and
·At the discretion of the counsellor concerned, the child be gradually reintroduced to phone and skype contact with his father;
·The child’s passport be retained at the court’s registry;
·The child not be at liberty to travel overseas without the father’s consent.
In respect of the property aspect of the proceedings, it was Mr Kadar’s position that the parties were indebted to his brother, Mr M, in an amount of $55,000.00, which Mr M had advanced by way of a loan to extend for the former family home.
In these circumstances, Mr Kadar sought the following final orders, in respect of property issues:
·The wife pay Mr M the sum of $27,500.00;
·The wife disclose (omitted) rugs alleged not to have been disclosed by her and their value be held in trust for [X], together with half of the value of gold jewellery provided to her, by way of wedding presents, by Mr Kadar’s family;
·Ms Abarca be responsible for discharging the debt to Real Estate.
With the assistance of Ms Lindsay and Mr W, during the course of the initial day listed for the final hearing, the parties were able to agree on the major aspects of the issues in dispute between them regarding care arrangements for [X] and the division of matrimonial property.
These orders reflected the fact that there were no funds, which were available to be directed towards Mr M, in respect of the alleged loan to him, which Ms Abarca did not accept and there was no evidence to indicate the value of the (omitted) rugs and items of gold jewellery raised by Mr Kadar.
More significantly, the orders agreed upon recognised the resistance of [X] to spend time with his father and the fact that the independent children’s lawyer did not support any therapeutic intervention in respect of the relationship between father and child. It was also apparent to all concerned, that there were, in reality, no assets of significant value to be divided between the parties.
In these circumstances, the following orders were made:
“That by way of final orders for property settlement in the past, present and future;
That the wife shall retain for her sole use and benefit free from any further claim of the husband:-
Her motor vehicle;
Her separate savings and investments;
All furniture, furnishings and personal effects in her possession;
Her superannuation and other employee entitlements;
Any other property of the wife not otherwise specified.
That the husband shall retain for his sole use and benefit free from any further claim of the wife:-
His motor vehicle;
His separate savings and investments;
All furniture, furnishings and personal effects in his possession;
His superannuation and other employee entitlements;
Any other property of the husband not otherwise specified.
That the parties shall retain (omitted) rugs in their respective possession for the benefit of the child [X] born 2007 and with the said rugs to be gifted to the child upon his 18th birthday.
Save and except as specifically otherwise provided each of the parties shall be liable and responsible for the payment of debt incurred in his or her name and shall release the other party from any liability in respect thereto.
Subject to the specific provisions of this Order each party does hereby and shall release and discharge the other party from any liability from any claim that either one of them may have against the other in respect to any property either now or hereafter owned by either of them.
Children’s Orders
That all previous parenting and injunctive orders are hereby discharged.
That the mother do have sole parental responsibility for the child [X] born 2007 (the child).
That the child live with the mother.
That the mother do cause copies of the child’s twice yearly school reports, any medical reports and advise in writing of any medical interventions of significance to be forwarded to the father by his Mackenzie Friend, Mr W, at the following address:-
That should the child express to the mother a desire to spend time with or communicate with the father, then the mother will facilitate this wish.
That the mother do all things necessary to arrange acceptance of the child into Child & Adolescent Mental Health Services for the purposes of therapeutic counselling of such length as may be suggested and recommended by the therapist who engages with the child.
That the Independent Children’s Lawyer provide to CAMHS a copy of the following documents to assist in the therapeutic engagement and support of the child:
A copy of this Order;
A copy of the trial affidavit of the mother filed 31 May 2018;
A copy of the trial affidavit of the father filed 18 June 2018; and
A copy of the Family Assessment Report by Mr I dated 1 November 2017.”

The two remaining issues in dispute can be summarised as follows:
·Given [X]’s background, is it likely to be in his best interests to travel overseas, particularly to (country omitted), from whence both his parents originate and where each has significant familial ties;
vIn this context, is such travel likely to be sufficiently safe for [X], particularly given the risk of civil strife in (country omitted) and possibly Mr Kadar’s profile with the authorities;
·Who should pay the debt to Real Estate;
vIt being Mr Kadar’s position that he has no money.
vIt being Ms Abarca’s position that she has borne a disproportionate share of the financial vicissitudes, which have prevailed since the parties separated and it is only fair that the father should make some contribution, however modest, towards this burden.
Mr Kadar has presented as a proud and determined person throughout these proceedings. He has always been courteous to me and has always attended at court, with Mr W, most usually by telephone from Brisbane. He travelled to Adelaide to take part in the family report; the conciliation conference; and the final hearing. As such, I accept he is deeply interested in the case. In the past, it has been his preference to deliver an oral statement to the court rather than engage with its processes in a more conventional way.
In these circumstances, I am well aware that, in many ways, these proceedings are culturally incongruent for him. In these circumstances, I elected to allow him to give oral evidence, to the court, regarding the significant issues arising in the case, rather than determine the matters on the papers. Ms Abarca was given the same opportunity.
As a consequence, I was directly able to assess the overall truthfulness of each of the parties and their respective level of insight into the issues before the court. In this context, I found Ms Abarca to be a person of remarkable composure and accomplishments, who has been able to integrate herself into Australian society and life with great aptitude. I found her to be honest and frank. As such, I would regard any undertaking made by her to be credible.
On the other hand, it is my assessment that Mr Kadar has struggled with integration into life in Australia, including with the circumstances surrounding the end of his marriage to Ms Abarca. In all these circumstances, I consider that his level of insight into the risks, for [X], of both travelling to (country omitted) and of not returning to this country thereafter, to be somewhat limited.
In particular, I am concerned that he still wishes to retain some vestige of control over his former wife and her plans, which is inappropriate given the circumstances of society in Australia and the issues surrounding the end of their marriage. One of the purposes of the Family Law Act 1975 is to provide separated spouses with mechanisms to allow them to lead distinct lives on the end of the marital relationship between them.

Background

The mother was born in (country omitted) on 1981. The husband was born in (country omitted) on 1965. He arrived in Australia in 2001 and was granted asylum, in this country, on the basis that he had been subject to persecution, in (country omitted), due to his political views. It is his case that he was imprisoned and tortured in (country omitted).
The parties met in (country omitted). They married, in (country omitted), on 2005. The circumstances surrounding their marriage were unusual. At the marriage ceremony, the father was represented by his brother as a proxy groom, as the father was not present in (country omitted). This practice is apparently acceptable in (country omitted). Thereafter, the mother migrated to Australia in 2006. Both parties are now Australian citizens.
[X] was born in Australia. He currently holds both Australian and (nationality omitted) travel documents, as does his mother. It is common ground between the parties that [X] has travelled to (country omitted) in the past, most recently in the first half of 2017. During this last visit, the mother alleges that the father precipitated the involvement of the (country omitted) authorities to prevent her and [X] leaving (country omitted), out of spite or for some other ulterior motive.
As a consequence, it is her evidence that she was put to great trouble and expense in applying to the Court in (country omitted), which she described to me as a hybrid between a civil and religious authority, to apply for a form of divorce from Mr Kadar, recognised by the (country omitted) Court, which also awarded her formal custody of [X] and so enabled her to leave (country omitted) and return, with him, to Australia.
The father denies these allegations and asserts that the prohibition came about as a result of the intervention of members of his family, who were concerned about [X]’s welfare, in (country omitted), as it seemed to them he had disappeared suspiciously.
Thereafter, the father asserts he did everything within his power, via (country omitted) consular officials in Australia, including acknowledging the mother’s entitlement to [X]’s custody, to secure the mother and [X]’s departure from (country omitted), which ultimately his efforts facilitated. This incident, for obvious reasons, exacerbated the already high levels of tension and mistrust existing between the parties.
Since her arrival, in Australia, Ms Abarca has completed both qualifications in (studies omitted). She has accreditation, as an (occupation omitted) and has been employed by the (employer omitted) for seven years. Currently she earns approximately $65,000 per annum, but in the past has earnt more. It is her evidence, which I accept, that she has no political profile whatsoever in (country omitted).
Ms Abarca’s family live in the town of (omitted), which is in the (country omitted), relatively close to where (country omitted). It is Ms Abarca’s evidence that she speaks (languages omitted). I assume that there is some linguist similarity between these languages, each of which is commonly spoken in (country omitted). [X] apparently speaks some (language omitted) but his first language is English.
Ms Abarca’s parents, brother and other relatives live in (country omitted). Her father is 65 years of age and in poor health, due to suffering a stroke. It is the mother’s evidence that he lived in Australia for several years and, as a consequence, is particularly close to [X]. However, due to his health, he is unable to travel.
It is Ms Abarca’s evidence that Mr Kadar was previously imprisoned in (country omitted), due to his commission of criminal offences. Mr Kadar asserts that he was a political prisoner for six years, during which he was held in solitary confinement for 17 months and subjected to torture, including being beaten; subject to sensory deprivation; suspended by his arms; and being subject to mock hangings.
In these circumstances, Mr Kadar asserts that he is well known to the authorities in (country omitted) and accordingly fears that his political profile in (country omitted) may result in [X] being detained by the authorities in an attempt to force him (Mr Kadar) to return to (country omitted) so that he can be re-detained by the authorities there or otherwise punished for leaving the country illegally in 2001.
In addition, Mr Kadar asserts that the area of (country omitted) to which Ms Abarca wishes to travel is unsafe because it is subject to civil tensions relating to separatist groups and Ms Abarca is likely to take [X] to areas in adjoining (country omitted), which are particularly dangerous. In addition, he asserts that Ms Abarca cannot be trusted in any undertaking provided by her that she will return to Australia with [X], once her travel is over.
It is Ms Abarca’s evidence, which I accept and which seems uncontradicted by Mr Kadar that she and [X] have previously been to (country omitted) on four prior occasions, namely 2010/2011; 2013; 2014; and 2016/2017. It is her evidence that she usually travels to (country omitted) for about three months, on these occasions, mainly to see family in (country omitted). She is particularly anxious that she should be able to travel to (country omitted) quickly in the event that her father becomes unwell.
Given the frequency of her previous travels to (country omitted) and the fact that Mr Kadar has not previously objected, but particularly no harm has befallen either her or [X], other than what she would describe as the difficulties instigated by Mr Kadar in April 2017, Ms Abarca asserts that there can be no unacceptable level of objective risk, arising for [X], of spending time in (country omitted).
On the other hand, she asserts that the emotional and cultural benefits, for the child, of being able to interact with family in (country omitted) and to enjoy direct exposure to (nationality omitted) culture and society, at first hand, are likely to be significant, particularly given [X]’s own background. It is her case that [X] is particularly close to his maternal grandfather, who cared for him, from an early age, in Australia.
In addition, as a person who is a native speaker and in cultural conformity with the general population of (country omitted) in particular and (country omitted) in general, it is Ms Abarca’s case that she will largely pass unnoticed in (country omitted) and so will be in a position to readily assess any potential sources of risk arising for both herself and [X], in (country omitted), and so avoid them.
In addition, it is her evidence that, if there is a situation of political unrest or some significant source of civil insurrection there, her family in (country omitted) will advise her of it and she will defer any travel. It is also her evidence that she will abide all travel directions provided for Australian citizens by the Department of Foreign Affairs and Trade. She presented to me as a sensible person, not a foolhardy one. I accept her evidence in this regard.
Finally, although she has no specific plans in this regard, Ms Abarca would like to be able to travel overseas, with [X], without any prior notification to Mr Kadar. It is the mother’s case that he has forfeited his entitlement to be involved in either her or [X]’s life by reason of his violent and anti-social conduct.
She fears that any future requirement that she consult with Mr Kadar about overseas travel, even to such an anodyne location as Disneyland, would result in his unreasonable opposition. In support of her assertion, in this regard, she points to the protracted nature of the current proceedings, which have been marked, on her case, by a significant lack of any concessions by Mr Kadar.
On the other hand, it is Mr Kadar’s position that he deeply loves [X] and only wants the child to be safe. It is his position that he (Mr Kadar) continues to suffer the sequellae of post-traumatic stress disorder as a consequence of his significant mistreatment in (country omitted) prior to 2001.
In these circumstances, he asserts that it is only to be expected that he would be extremely apprehensive about the prospect of [X] travelling to (country omitted) where he (the father) was so mistreated and anxious at the child being used as a tool to do him further harm.
As previously indicated, he denies any personal involvement in the intervention of the (country omitted) authorities, which prevented [X] leaving (country omitted) in April of 2017. To the contrary, it his case, that his family were greatly concerned that the mother and child were in (country omitted), at this time, notwithstanding an order made on 26 September of 2016, placing the child’s name on the Airport Watch list, which is maintained by the Australian Federal Police to prevent children leaving Australia.
Given this order, he submits that it was only to be expected that his family in (country omitted) would have worried about [X]’s situation and there alerting of the authorities is readily explicable. It is further his position that the fact this Watch List posting had apparently been circumvented by the mother is eloquent evidence that Ms Abarca is not a person to be trusted and accordingly, is not a person who can be relied upon to honour any undertaking, given to the court, to return to Australia.
It is the case that [X]’s name was placed on the Airport Watch list on 26 September 2016, shortly after the mother had commenced these proceedings. This was done largely at the mother’s instigation, as she was fearful that Mr Kadar might remove [X] from Australia. In addition, at this time, an order was made as follows:
“That the father be restrained and an injunction be granted restraining the father from removing the said child from the Commonwealth of Australia AND IT IS REQUESTED that all officers of the Australian Federal Police give effect to this order.”
It is Ms Abarca’s evidence that she considered the injunction applied only to Mr Kadar, rather than to her and had been explicitly drafted to this effect, which implicitly authorised her travel with the child. In these circumstances, she and the child were able to leave Australia.
As a consequence of these matters, Ms Abarca asserts that there was nothing sinister about her travel to (country omitted) in 2016/2017. Rather, she would characterise the travel as being routine in nature, given the frequency of her previous travel to (country omitted). When she does travel to (country omitted), she and [X] enter and leave on their (nationality omitted) passports, which is easier and less obtrusive than using Australian documents.
In future, Ms Abarca proposes travelling to (country omitted), with [X], for shorter periods of time, now the child has become older and attendance at school more important. She proposes that any trips to (country omitted), other than ones relating to medical emergency, take place during the long end of year school holiday. In addition, the frequency of such travel, in future, will be dictated by her finances.

Family violence

It is the mother’s evidence that she was subject to endemic verbal and physical abuse, during the parties’ marriage, which resulted in her suffering significant injuries including two periods of hospitalisation. She has provided extensive documentary evidence to support her case regarding the serious nature of her injuries and the significant level of involvement of police in her relationship with Mr Kadar.
It is her case that following these incidents, the father would apologise to her and promise that he would never behave in the same manner again, to secure her continued engagement in the marriage, which promises he inevitably broke. Essentially, it is her case that she was trapped in a co-dependent and emotionally destructive relationship based on violence and control.
It is her evidence that the first serious assault, resulting in police and hospital intervention, took place in March of 2007, when she was in an advanced state of pregnancy with [X]. Police records indicate that she had scratch marks on her neck and bruising on her nose. Whilst being spoken to by police, she was noted to be lapsing in and out of consciousness. Police arranged for her to be conveyed to hospital.
More significantly, in December of 2009, Mr Kadar was charged with the attempted murder of Ms Abarca. In the alternative to this charge, he was charged with causing her serious harm with an offensive weapon, namely a piece of timber, which he had used to assault her.
Police records indicate that Mr Kadar was apprehended beating Ms Abarca on the head and body with a piece of wood, by a passer-by, at the side of a road in rural South Australia. Ms Abarca was taken to hospital, where she was diagnosed as suffering multiple bruises; deep lacerations to her face and scalp; and a displaced skull fracture.
Ultimately, after being initially remanded in custody and then released on home detention bail, Mr Kadar was convicted of the crime of aggravated assault causing serious harm, with intent to cause such serious harm, following a trial by Judge alone, in the Supreme Court of South Australia. His plea of not guilty, by reason of mental impairment, was rejected by the presiding judge, Justice Kelly.
In her sentencing remarks, Justice Kelly indicated that other than for the involvement of some passers-by, on the day of the assault, who were able to restrain Mr Kadar, there was a significant possibility that he might have killed Ms Abarca, given the ferocity of his assault on her.
Whilst rejecting the mental defence, Justice Kelly accepted that Mr Kadar suffered from a severe and chronic post-traumatic stress syndrome, as a consequence of his experiences in an (country omitted) prison. Whilst being sympathetic to Mr Kadar, Justice Kelly also characterised him as having a serious anger management problem, which placed anyone near him, including Ms Abarca, at significant risk.
The major mitigating factor, taken into account by Justice Kelly in sentencing Mr Kadar, was the unswerving support of Ms Abarca, who had stuck by him, notwithstanding the very significant injuries sustained by her. In all these circumstances, Justice Kelly imposed a head sentence of four years, with a non-parole period of twenty months.
As previously indicated, Ms Abarca does not accept that Mr Kadar was a political prisoner in (country omitted). Rather, it is her case that he is petty criminal, who has committed offences in both (country omitted) and Australia, which have come to the notice of authorities. In this context, she relies on police records subpoenaed by her solicitor, which indicate that Mr Kadar has convictions, in South Australia for larceny and some offences involving violence.
In respect of why she ostensibly remained loyal to Mr Kadar, Ms Abarca has deposed that she found herself to be a vulnerable person in Australia, where she was culturally isolated and subject to pressure from members of the father’s family, who begged her not to pursue police charges against the father. It is the submission of her counsel that such behaviour is common in the victims of family violence. I agree with this submission.
It is Ms Abarca’s evidence that, notwithstanding Mr Kadar’s conviction and lenient sentence, he continued to inflict serious violence upon her, to which [X] was exposed. It is her evidence that she was reluctant to report this abuse to police out of fear that this would trigger a breach of Mr Kadar’s suspended jail term and place her in further conflict with the father’s family.
It is Ms Abarca’s case that the parties finally separated, in May 2013, when Mr Kadar attempted to strangle her, kicked her and threatened to kill her. Thereafter, she asserts Mr Kadar has played little part in [X]’s life, choosing to spend extended periods of time in Queensland.
During this period, she has been solely responsible for [X]’s support, as well as the financial maintenance of the Property A property and the oversight of the Property B property, which did not prove to be a sound investment. In addition, during this period, Ms Abarca completed her (qualifications omitted) in (studies omitted). In my estimation, these are significant achievements, accomplished in challenging personal circumstances.
In my view, the wife’s evidence, which I accept, clearly indicates why [X] is emotionally and physically aligned with his mother against his father. During her time of living in Australia I accept that Ms Abarca has, in significantly challenging and difficult circumstances managed to improve herself and adjust to living in Australia.
This has come at a significant financial cost to her, both in terms of the fees incurred for her higher education and as a consequence of her straitened financial circumstances, which have not enabled her to pay the recurrent liabilities in respect of both the parties former family home and the investment property, given Mr Kadar’s abrogation of his financial responsibilities in respect of these matters.

It is my impression that Ms Abarca has grown emotionally stronger since her separation from Mr Kadar. Although I accept that she remains fearful of him and apprehensive that he might behave in an unpredictable manner, she now largely holds him in distain.
I am not in a position to make findings as to the truth or otherwise of Mr Kadar’s assertion that he was subject to political persecution in (country omitted). I accept, however, that he has suffered significant psychiatric trauma in the past and has major anger management issues.
This may explain his behaviour towards Ms Abarca but does not excuse it. In all these circumstances, I remain concerned at the possibility that his stance in the proceedings thus far represents a continuing attempt, on his part, to exercise some degree of control over Ms Abarca.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
In this case, there can be no doubt that Mr Kadar has subjected Ms Abarca to family violence. In these circumstances, in my view, the court must approach Ms Abarca’s submission that she believes Mr Kadar is still intent on exercising some degree of control over her life and circumstances with some credence. On any view, the family violence arising in this particular case was particularly serious.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family, following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
Given the contents of Mr I’s report, when placed in the context of the mother’s evidence, in my view, I have reasonable grounds to conclude that [X] has been exposed to the incidents of his father’s family violence in the terms envisaged by the Act.
In these circumstances, I reject the father’s assertion that the mother has attempted to influence the child against him to satisfy her own emotional needs. To do otherwise would be to impliedly accept the father’s position that the mother is not entitled to hold negative views about him because of his prior conduct towards her.

Other legal considerations

As previously indicated, both parties have provided oral evidence, in these proceedings and been subject to cross-examination from the other side. It is theoretically through this process of cross-examination that a person placed in my position, discharging a judicial function, is able to make findings regarding the credit or honesty of the parties concerned and consider the actions, which have motivated them in the particular case to date.
It is in this context, I must make a determination about whether to permit [X]’s proposed travel to (country omitted). In making this decision, I must be careful not to fall into the error of making stereotypical judgements about (country omitted), which may be based on my subjective assumptions about the country, which has a very different history and culture to Australia.
It is also a country which has been regarded, to some degree, as falling outside the international community of nations as it has been subject to United States sanctions for a significant period of time and it lies at the focal point of many sources of international tension, particularly in respect of the disastrous civil war in (country omitted).
Neither party has sought to bring any expert evidence about the current state of affairs in (country omitted), particularly the overall level of safety there. Mr Kadar has not been to (country omitted) for a period approaching twenty years. Ms Abarca has been a frequent traveller there. Both parties have sources of family information about the situation on the ground in (country omitted).
At present, the Australian Department of Foreign Affairs and Trade advises Australian citizens travelling to (country omitted) to exercise a high degree of caution in the country, but does not specifically indicate that Australian citizens should not travel there. It further advises that Australian citizens should not travel to areas of (country omitted) bordering (countries omitted) or generally within a corridor of its border with (country omitted).
Although I am aware that witnesses frequently lie on oath, often very convincingly, and as such, I would be naïve to think that cross-examination, of itself, provides a window into the heart or mind of any human being, it nonetheless represents the best tool available to assess the bona fides and insight of the parties in proceedings before me, including in this case.
Necessarily, as a consequence of its nature, humanity is capable of throwing up endless surprises and unanticipated aberrations from the norm of ordinary human behaviour. As such, I cannot rule it as being impossible that Ms Abarca is not a person of her word and, contrary to my assessment, will go to places in (country omitted) imprudently and so place [X] in danger. As Cronin J said in Gin & Hing:[3]
“Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.”
[3] Gin & Hing [2010] FamCA 617
As indicated above, it is my assessment that Ms Abarca is both an honest and an insightful, intelligent person. I also assess her to be a devoted parent. In these circumstances, in my view, it is improbable that she would either wilfully or negligently expose [X] to the possibility of coming to harm. In my view, she is not that sought of parent.
However, the fact remains that not all parts of the world are as secure and stable as is Australia. The world is a dangerous place. It is also well known that there have been significant incidents of terrorism, including recently, in 2017, in (country omitted), when the parliament building and the (buildings omitted) were attacked.
In addition, many ostensibly safe places, including Paris, Brussels, London and New York, have been the scenes of terrorist atrocities, in which many individuals have been killed and injured. The world is not a safe place. Yet individuals, including a very large number of Australian citizens travel to the four corners of the earth because of the delights of international travel.
It is the responsibility of the court to attempt to quantify the degree of risk, arising for [X], of travelling to (country omitted) and possibly other regions of the world, with his mother. Implicit in this assessment is the risk that the mother will deviate to some other country where her whereabouts can be concealed from the father.
This risk must be assessed in an objective and rational manner. The task being to determine whether the risk is such that it would not be reasonable for the court to accept it, in all the circumstances prevailing, after having balanced that risk against any benefits which [X] is likely otherwise to derive from such travel.
In this context, it would be neither rational nor objective for me to determine, because there was some degree of risk arising from travelling to (country omitted), given the state of world affairs and of non-return, which in an intellectual sense can never be completely discounted, that the travel should not be permitted.
In this case, I accept that there must be many potential benefits, arising for [X], of spending time in (country omitted). It is the home of many world heritage sites. It has a distinctive cuisine. It is also the home of many of [X]’s close relatives. For obvious reasons, it will be of great benefit for [X] to have a close and personal exposure to the culture from which he personally derives.
Part VII is the part of the Family Law Act 1975, which deals with the law relating to arrangements for the care of children. The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].
Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child.
Accordingly, the issue of whether the child concerned in this case should or should not travel to (country omitted) (or indeed any other location outside of Australia) is capable of being the subject of a parenting order, particularly as the parents concerned in this case are unable to resolve the issue themselves [see section 64B(2)(h) & (i)].
The best interests of any child concerned are the paramount or most important consideration [section 60CA] in making any parenting order. Fundamentally, the court must decide whether it is in [X]’s best interest to travel outside of Australia. Necessarily, given the structure of the Act, this is a multi-faceted inquiry.
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply, to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in section 60B(1). They are as follows:
“(a)   ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
“(a)   children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as twin pillars, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act the court is now directed, “in applying the primary considerations… to give greater weight to section 60CC(2)(b).” This, of course, is the consideration dealing with abuse, neglect and family violence. These considerations are now to be given priority.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
In this case, the parties agree that the mother should have sole parental responsibility for [X]. In my view, this outcome is the one most calculated to serve [X]’s best interests, given there can be no doubt that he has been exposed to family violence and it is anticipated he will not be spending time with his father.
The legal principles to do with a child travelling outside Australia, in the company of one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex.
Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests according to the criteria specified in section 60CC, within the overall matrix of objects and principles set out in section 60B.
Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors, both primary and additional.
In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the ability of the child concerned to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)].
Clearly if a parent absconds with a child overseas, such an action must have the most serious implications for the nature of the relationship the child has with the parent left behind. Such considerations raise the following practical issues and criteria:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;
·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[4]
[4] See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205
Fundamentally, the court must also make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary. Obviously, such a possibility has potentially very serious ramifications for the child concerned. It may result in the severance of his or her relationship with one aspect of his or her family.
In Line & Line the Full Court of the Family Court indicated that there are a range of circumstances which the court should take into account in assessing the degree of risk that a travelling parent will not return any child concerned to Australia. These factors include the following:
·the existence (or otherwise) of continuing ties between the departing parent and Australia, such as the ownership of real property; the existence of business interest; or the residence of family or close friends in the country;
·the existence and strength of possible motives not to return, which included the level of conflict between the parties concerned, particularly over child related issues;
·the existence and strength of possible motives to remain in the country of proposed travel, again including such things as possession of property; business interests; and the existence of familial and personal ties.
In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the court is directed to consider the following factors:
·in fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.
·the degree of risk that the departing parent will not return to Australia.
·whether the country of travel is a signatory to the Hague Convention and the likelihood of deviation to a non-convention country.
·the financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[5]
[5] See Line & Line (1997) FLC 92-729 at 83,846
(country omitted) is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). In addition, although neither party made any submissions about it, it would appear to be the case that it would be difficult for the Australian Government to provide Mr Kadar with any significant level of assistance to ensure the return of [X] to Australia, if Ms Abarca decided to remain in (country omitted) with him.
In these circumstances, I accept that if Ms Abarca is being disingenuous about her intentions in regards to her travel to (country omitted), to all intents and purposes, it will be impossible for Mr Kadar to secure [X]’s return to this country through conventional Australian channels.
Ms Abarca is an intelligent person, who has made her life in Australia, where she has secured a good job for herself. I accept her evidence that her income, in Australia and the standard of living which she enjoys in this country is incomparably higher than that which she could achieve in (country omitted), which is currently suffering significant economic privations as a result of international sanctions upon it.
In this context, I also accept her evidence that she sees her future and, more importantly, that of [X] as being in Australia. It is her case that [X] regards himself as being Australian by background. As such, he sees Adelaide and Australia as being his home. He speaks English as his first language. He attends a government funded school and has many friends. As such, I accept that he is acculturated into the norms and experiences of Australian suburban and educational life.
Ms Abarca has deposed that she believes that [X] will receive a better education in Australia than that he would receive in (country omitted), if he attended a public school in that country. As such, he is likely to have much better prospects in this country as in (country omitted). In my estimation, Ms Abarca is not the sort of parent who would prioritise her needs over those of her child. In this context, I accept her evidence that emotionally and materially, [X] is better off living in Australia, for the foreseeable future and Ms Abarca would do nothing to jeopardize his future security.

In these circumstances, I would assess the risk of the mother not returning the child to Australia as being slight. It is, however, not non-existent. There are some pull factors to (country omitted), the chief one being the presence of Ms Abarca’s family there. The fact remains, however, Ms Abarca and [X] have travelled to (country omitted) on four prior occasions and have always returned. In my view, for obvious reasons, what has happened in the past is the best indicator for what is likely to happen in the future.
The primary considerations, arising under section 60CC, are not strongly relevant to these proceedings. As delineated above, I do not consider that Ms Abarca is likely to either willingly or negligently expose [X] to any situation in which he is likely to come to harm. She is not a neglectful parent and her stance in these proceedings indicates that she has a capacity to act protectively, so far as issues of family violence are concerned.
At the present time, [X] has no operative level of relationship with his father and is not likely to do so for the foreseeable future. In this context, the issue of him benefiting from any form of meaningful level of relationship with Mr Kadar must be regarded in purely hypothetical terms.
At this stage, [X]’s most significant relationship is with his mother. I also accept Ms Abarca’s evidence that he is close to his maternal family, particularly his grandfather, who provided a significant component of his care, when he lived in Australia. In addition, I accept that [X] has maintained these important relationships with his extended maternal family, during his regular trips to (country omitted), in the company of his mother [see section 60CC(3)(b)].
[X] has been a fairly frequent visitor, in the past, to (country omitted). There is no indication that he has come to any physical or emotional harm, during any of these visits. In this context, it is likely to be beneficial for him to continue to be exposed to the different languages, cuisine and culture of (country omitted), particularly as he is a child who stems from this culture and is likely to be regarded as an (nationality omitted) child, to some degree, by the Australian mainstream. As such, it is likely to be beneficial to him to have his own continuing and direct experience of the culture from which he and his parents derive.
The historical and cultural content implicit in such an experience is necessarily very different to the social setting in which the child normally lives, in suburban Adelaide and can be summed up by the aphorism “travel broadens the mind”. The culture of (country omitted) is an ancient, diverse and rich one.
In assessing a child’s best interest, I am directed to consider the particular background of the child concerned, which is taken to include the lifestyle, culture and traditions and any relevant characteristic of both the child and his/her parents [section 60CC(3)(g)].
The guiding hand of the legislature can be seen in section 60B, where the objects and principles of Part VII are set out. These principles (set out in full above) emphasise the entitlement of children to spend time with their relatives, particularly grandparents and speak of their right to enjoy their cultural background with other relatives who share that culture with them.
Cultural background is important to children. It provides them with a sense of identity. Identity very often comes from a child knowing relatives, on both the paternal and maternal aspects of his or her family and placing those relatives within a cultural context. In addition, overseas travel, particularly to meet family, can be a rich experience for a child, the memory of which can last a life time.
It is a strong theme of the mother’s case that it will be beneficial for [X] to have the opportunity to interact with members of his maternal family, in the cultural milieu applicable to them. I accept that this is so.
As such, I accept that there are likely to be some educational benefits for the child arising from the travel. I accept that these benefits are difficult to quantify in concrete terms. However, in my view, just the experience of such things as travelling to a different country; eating different foods; and hearing a different language spoken; is likely to broaden the child’s mind. So, it will give him a different perspective on life.
As I have indicated, the Family Law Act emphasises the centrality of all significant relatives, to children, as they grow and develop. The mother’s proposal envisages the child staying with his maternal family, in (country omitted) and this will give him an opportunity to understand where he fits in in his wider (nationality omitted) family. In general terms, children do better if they understand that they are part of a wider family, comprised of grandparents on both paternal and maternal sides, uncles and aunts, cousins and the like.[6]
[6] See Bright v Bright (1995) FLC 92-570 at 81,658
I accept that (country omitted) is very different from the area of suburban Adelaide in which [X] usually lives. I also accept that the area of (country omitted) concerned is one at which the moving tectonic plates of conflict in the (country omitted), particularly in regards to the issue of (omitted) come into contact with one another. However, in this regard, I accept the mother’s assurances that she will be constantly vigilant in respect of any risk of exposure of her and [X] to civil discord and will take appropriate precautions in respect of it, including heeding the advice of the Australian government and its consular representatives.
In Kaur I said as follows:
“Overseas travel, for young children, particularly to a non-Hague Convention country, is potentially a high stakes game, with no margin for error. As such, the court, in making its leap of faith should not jump precipitately, into the dark, on the basis of untested or incomplete evidence, particularly if the need for the travel in question is not a particularly pressing one.”[7]
[7] Kaur & Kaur [2014] FCCA 2843 at [143]
In this case, although (country omitted) is a non-Hague convention country and one with a tumultuous recent history, I do not think that I am jumping precipitately into the dark. I have taken evidence from Ms Abarca and assessed her to be a responsible and reliable person. In addition, I am satisfied that she has a legitimate reason for travelling to (country omitted) and the travel in question will be beneficial for [X].
In addition, as I have assessed Ms Abarca to be an insightful and loving parent, who accepts [X] is well settled in Australia, where he has lived since his birth, I assess the prospects of her not returning the child to Australia as being extremely slight.
Ms Abarca has herself benefitted from educational opportunities in Australia, which provide her with some measure of financial security, which is likely to be far superior to that which she would enjoy in (country omitted). Her unwillingness to deprive [X] of such opportunities is of itself the most compelling reason available to me to conclude that Ms Abarca will return to [X] to this country, if she travels to (country omitted) or any other destination, for the purposes of a holiday, at some stage in the future.
For all these reasons, I propose to make the travel orders as proposed by Ms Abarca. In addition, in my view, considerations of justice and equity dictate that Mr Kadar should contribute to the costs arising from the sale of the Property A property.
The evidence clearly indicates that Ms Abarca has made significant contributions to the care of the family, as represented by [X], in the not insignificant period since the parties separated, with absolutely no assistance from Mr Kadar. At the end of the day, the sum involved is small, but in my view, it would be an affront to justice if Ms Abarca was required to pay the sum in question.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 29 June 2018