Alard & Dinesh

Case [2024] FedCFamC1F 260

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Alard & Dinesh [2024] FedCFamC1F 260

File number: SYC 7736 of 2019
Judgment of: HARPER J
Date of judgment: 19 April 2024
Catchwords:  FAMILY LAW – PARENTING – Discrete issues – Where all outstanding parenting issues were resolved by consent on a final basis barring the retention of the child’s name on the airport watchlist and the question of international travel – Where father holds concerns of the mother absconding with the child and wishes for the child to remain on the airport watchlist – Where parties have Country B heritage – Where mother is a permanent resident in Australia and father is an Australian citizen – Where mother has strong employment ties to Australia – Where risk of the mother absconding with the child is low – Consideration of security – Orders made permitting international travel.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC, 65Y, 64D(2)

Hague Convention on the Civil Aspects of International Child Abduction
Cases cited:

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26

Line & Line (1997) FLC 92-729; [1996] FamCA 145

Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54

Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66

SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42

Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Yaling v Tsen (2022) 65 FamLR 43; [2022] FedCFamC1F 347
Division: Division 1 First Instance
Number of paragraphs: 69
Date of last submission: 8 March 2024
Date of hearing: Determined on the papers in chambers
Place: Sydney
The Applicant: Litigant in person
Solicitor for the Respondent: Cb Jai Lawyers
Solicitor for the Independent Children's Lawyer: Philip A Wilkins & Associates

ORDERS

SYC 7736 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ALARD

Applicant
AND:

MS DINESH

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARPER J

DATE OF ORDER:

19 APRIL 2024

THE COURT ORDERS THAT:

1.As of the date of these orders, X born 2018 (“the child”) be permitted to leave the Commonwealth of Australia, AND IT IS DIRECTED that the Australian Federal Police remove the name of the child from the Family Law Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.

2.Pursuant to s 65Y of the Family Law Act 1975 (Cth) each party be permitted to travel overseas with the child provided that:

(a)Such travel take place during that parent’s time with the child pursuant to the orders of this Court made on 7 February 2024, and shall not encroach upon the other parent’s time;

(b)In the event that such travel is to occur to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction then the following conditions apply:

(i)Not less than three weeks prior to the proposed date of departure from…

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AGLC
Alard & Dinesh [2024] FedCFamC1F 260
Case
[2024] FedCFamC1F 260
Decision Date

CaseChat Overview and Summary

The case of Alard v Dinesh involved a dispute between the parties regarding the child's continued presence on the Airport Watchlist and the conditions under which the child could travel internationally. Mr Alard, the father, expressed concerns about the mother absconding with the child and wished for the child to remain on the Watchlist. Ms Dinesh, the mother, argued for the child's removal from the Watchlist and sought orders permitting international travel. The court was tasked with deciding whether the child should remain on the Watchlist and, if not, what conditions should apply to international travel.

The court considered several factors in reaching its decision. It noted that there was no evidence of the mother having removed the child from Australia without the father's consent or having any intention to do so. The court also considered statutory obligations under Section 65Y of the Family Law Act 1975, which prohibits taking a child out of the country without the other parent's written consent or a court order. The court found that while the child's presence on the Watchlist prevented removal from Australia, international travel required further consideration. The court determined that the best interests of the child, as the paramount consideration, should guide the orders. In light of the history of the proceedings and the potential for further litigation, the court sought to issue orders that would minimise the risk of additional court applications.

The court concluded that the child should be removed from the Airport Watchlist but issued detailed orders to regulate international travel. The orders permitted the child to leave Australia and detailed specific conditions for international travel, including the transfer of a bond for non-Hague Convention countries, advanced notice requirements, and provisions for emergency travel. The court's decision aimed to balance the father's concerns about the child's safety with the mother's desire for international travel while ensuring the child's best interests were met.

In conclusion, the court ordered that the child be removed from the Airport Watchlist and established a framework for international travel, ensuring both parents could travel with the child under specific conditions. The orders included provisions for advanced notice, bond transfers for non-Hague Convention countries, and emergency travel protocols. These measures were designed to provide a balanced approach that addressed both parents' concerns while prioritising the child's welfare.

Orders

Orders of the court

SYC 7736 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ALARD

Applicant

AND:

MS DINESH

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARPER J

DATE OF ORDER:

19 APRIL 2024

THE COURT ORDERS THAT:

1. As of the date of these orders, X born 2018 (“the child”) be permitted to leave the Commonwealth of Australia, AND IT IS DIRECTED that the Australian Federal Police remove the name of the child from the Family Law Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.

2. Pursuant to s 65Y of the Family Law Act 1975 (Cth) each party be permitted to travel overseas with the child provided that:

(a) Such travel take place during that parent’s time with the child pursuant to the orders of this Court made on 7 February 2024, and shall not encroach upon the other parent’s time;

(b) In the event that such travel is to occur to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction then the following conditions apply:

(i) Not less than three weeks prior to the proposed date of departure from the Commonwealth of Australia of the child, the travelling parent is to transfer $20,000 (“the bond”) to the Sydney Registry of the Federal Circuit and Family Court of Australia;

A. The bond paid by the travelling parent, in accordance with Order 2(b)(i), is to be held by the Court until such time as the Court receives written confirmation from the travelling parent that the child has returned to the Commonwealth of Australia together with a copy of the child’s boarding pass and thereafter the Court, by this order, release the bond to the travelling parent;

B. If the travelling parent does not return to the Commonwealth of Australia within seven days of the scheduled return date, then the Court by this order is to release the bond to the non-travelling parent, except in circumstances where the Court is informed in writing supported by written documentation that the delay of the travelling parent’s return to Australia is due to a matter outside of their control including but not limited to a natural disaster or cancelled or delayed flight/s.

(ii) If the travelling parent holds Australian Citizenship and is a registered owner of real property in Australia, then the requirement of the bond pursuant to Order 2(b)(i) is waived provided that:

A. Not less than three weeks prior to proposed departure from the Commonwealth of Australia, the travelling parent provides proof of citizenship and a copy of the title search to the non-travelling party.

(c) The parent wishing to travel overseas with the child must, no later than six weeks prior to travel, provide the other parent with the details of travel, in writing, including:

(i) The dates of the planned departure from and arrival to Australia;

(ii) Destination cities and details of the accommodation where the child will be staying; and

(iii) A contact number where the Child can be reached while overseas.

(d) The parent wishing to travel overseas with the child must, no later than 14 days prior to travel, provide the other parent with a copy of the travel tickets for the child showing the details and date of the departure from and subsequent return to the Commonwealth of Australia.

3. In case of an emergency, and no later than 6 hours prior to the travel, the parent wishing to travel overseas with the child must provide the other parent, in writing, with the details of travel including:

(a) Reason for emergency travel including any supporting documents;

(b) The dates the planned departure from and return to Australia;

(c) Destination cities and details of the accommodation where the child will be staying; and

(d) A contact number where the child can be reached while overseas.

4. The travelling parent shall do all things reasonably necessary to facilitate Facetime or phone calls between the child and the non-travelling parent once a week during the period of travel.

5. Each party shall do all such things and acts to enable the passport to be collected by the travelling parent no later than seven days prior to travel.

6. Each party shall forthwith do all such things and acts to enable any passport renewal, visa application, OCI application or to enable any prerequisites for travel to be satisfied.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I made orders on 7 February 2024 that the parties were to file written submissions and supporting affidavits addressing the issue of whether the child should remain on the Airport Watchlist. The mother filed an affidavit and written submissions on 23 February 2024 and the father filed affidavit material and written submissions on 8 March 2024. No submissions were received by the ICL. Both parties also sought to rely upon the Family Report dated 22 August 2023 prepared by Ms C (“Family Report”) in support of their respective positions concerning international travel.BRIEF BACKGROUND The father was born in Country B in 1982, presently 43 years of age, and began residing in Australia in 2003. He became an Australian citizen in 2012. The mother was born in Country B in 1985, presently 38 years of age, and became a Permanent Resident in Australia in 2013. The parties were married in 2012, separated on a final basis in June 2019 and were divorced in 2020. The child was born in Australia in 2018 and is an Australian citizen. The child is eligible to obtain permanent residency in Country B. The mother travelled with the child to Country B in late 2018 for a period of nine months in order for the child to meet her paternal and maternal grandparents and extended family. The father did not accompany them on this trip. It was the mother’s case that she was reluctant to travel with the child, who was only an infant, however did so at the father’s insistence. The mother and child returned to Australia in mid-2019. Following the parties’ separation in June 2019, the mother returned to Country B in late 2019. It was the mother’s case that prior to travelling to Country B she asked the father to sign a document entitled “No Objection Certificate for issuance of Visa” (“No Objection Certificate”) to enable the child to travel to Country B for no more than 30 days. She annexed the signed No Objection Certificate from the father and the relevant email correspondence to her affidavit filed 23 February 2024. The mother and child returned to Australia in late 2019, despite the high level of conflict between the mother and father at that the time. There is no evidence before the Court that the mother ever removed the child from Australia without the father’s prior consent or that she had any definitive intention of doing so, prior to, or subsequent to the making of the Airport Watchlist order.STATUTORY AND OTHER CONSIDERATIONS Section 65Y of the Act imposes an obligation on the parties if a parenting order has been made, as is the case in this matter. In short, it is an offence to take a child out of the country without the written consent of the other parent, or in accordance with an order of a court made under Pt VII of the Act. The effect of the child remaining on the Airport Watchlist is that neither party nor their agents are permitted to remove the child from Australia until such time as the order lapses. The order operates irrespective of any written consent from the other party. So even if the parties reached an agreement that either party could travel overseas with the child, an application to, and order of, the Court that the child be removed from the Airport Watchlist would still be necessary.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

There is no evidence before the Court that the mother ever removed the child from Australia without the father’s prior consent or that she had any definitive intention of doing so, prior to, or subsequent to the making of the Airport Watchlist order.STATUTORY AND OTHER CONSIDERATIONS Section 65Y of the Act imposes an obligation on the parties if a parenting order has been made, as is the case in this matter. In short, it is an offence to take a child out of the country without the written consent of the other parent, or in accordance with an order of a court made under Pt VII of the Act. The effect of the child remaining on the Airport Watchlist is that neither party nor their agents are permitted to remove the child from Australia until such time as the order lapses. The order operates irrespective of any written consent from the other party. So even if the parties reached an agreement that either party could travel overseas with the child, an application to, and order of, the Court that the child be removed from the Airport Watchlist would still be necessary. It would be open to the Court to make an order removing the child from the Airport Watchlist and then make no order as to international travel. Section 65Y of the Act would then preclude either parent from travelling with the child internationally without prior written consent of the non-travelling parent or a further order of the Court (s 65Y(2)). In light of the history of these proceedings, there is reason to doubt that the parties would be able to able to reach a consent position regarding international travel, despite settling all other parenting and property matters by consent. In the absence of consent it would be open to the mother, or indeed the father, to make a discrete application to the Court identifying with precision the specific international travel event to be undertaken by the child and clearly stating any other conditions attaching to that travel. However, it is preferable for the Court to make orders which are least likely to lead to the institution of further proceedings in relation to the child (s 60CC(3)(l)). I am satisfied that such an approach would likely lead to further unnecessary litigation. This leaves for determination two separate issues. The first is whether the child remaining on the Airport Watchlist for up to six further years, as proposed by the father, is appropriate in light of the operation of s 65Y of the Act. The second is whether the Court should make orders allowing for the child to travel internationally without the need for prior written consent of the non-travelling parent, as proposed by the mother. Orders pertaining to a child remaining on the Airport Watchlist or permitting the child to travel outside of Australia are parenting orders within the definition of s 64D(2)(i) of the Act. Thus, in determining the appropriate orders to be made, the best interests of the child are the paramount consideration (s 60CA of the Act). The best interests of the child are to be determined by an examination of the considerations as set out in s 60CC of the Act.