Alard & Dinesh
[2024] FedCFamC1F 260
•19 April 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Alard & Dinesh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
These are parenting proceedings pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”) between the applicant father, Mr Alard (“the father”) and the respondent mother, Ms Dinesh (“the mother”). There is one child the subject of these proceedings, X (“the child”) born 2018 and aged six years.
These proceedings were commenced by the father in November 2019 seeking interim and final orders that the child be placed on the Family Law Airport Watchlist (“the Airport Watchlist”). The father subsequently amended his Initiating Application in June 2020 seeking both parenting and property orders on a final basis.
The parties resolved the property aspect of the proceedings on a final basis by consent in August 2021.
The parties were able to resolve the majority of the outstanding parenting issues following their attendance at a mediation organised by the Independent Children’s Lawyer (“the ICL”). On 7 February 2024 I made final parenting orders by consent which provided that the mother have sole parental responsibility for the child and for the child to live with the mother (“the consent orders”). The consent orders provided a regime of graduated time for the child to spend with the father commencing with privately supervised time and progressing to overnight and school holiday time.
The only remaining issue for determination was whether the child should remain on the Airport Watchlist until the age of 12 or if the parties should be permitted to travel internationally with the child and if so on what terms. This judgment deals with this discrete issue.
The parties contend and appear to believe that the child was ordered to be placed on the Airport Watchlist on 4 February 2020. Orders from 4 February 2020 include a notation “[t]he mother has indicated she consents to an order placing the children on the airport watch list”, however it does not appear that any order was made at that time. Notations cannot take the place of or be seen to be orders (Oberlin & Infeld (2021) FLC 94-017 at [44]).
Irrespective of whether an order was or was not made on 4 February 2020, the child was ordered to be placed on the Airport Watchlist on 9 March 2021, where she continues to remain pending further order of the Court. This is of significance because there is no material before the Court that the mother attempted to remove the child from the country at any stage from the commencement of proceedings in November 2019 to 9 March 2021 when the Airport Watchlist order was made.
The father seeks an order that the child remain on the Airport Watchlist until she turns 12. The mother seeks that the child remain on the Airport Watchlist until she turns six, in 2024, after which either party may travel overseas with the child subject to a number of conditions. The mother’s proposed orders are set out at Exhibit “A” to these orders.
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.
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.
While the Court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary (SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637 at [48]–[49]; Tibb v Sheean (2018) 58 Fam LR 351 at [68]–[69]). I have given careful consideration to each of the primary and additional considerations as they may relate to the narrow question of overseas travel and the evidence and arguments relevant to this question.
Further to the relevant s 60CC considerations, I take account of the practical criteria set forth in Kuebler & Kuebler (1978) FLC 90-434 at 72,205 and long referred to:
(a)The length of the proposed stay out of the jurisdiction;
(b)The bona fides of the application;
(c)The effects on the child of any deprivation of time spent with the non-travelling parent;
(d)Any threats to the welfare of the child; and
(e)The degree of satisfaction which the Court has that a promise made by a party to return to Australia will in fact be honoured.
The Full Court in Line & Line (1997) FLC 92-729 set out the “obvious considerations” for travel applications:
(a)The existence or otherwise of continuing ties between the departing parent and Australia including the ownership of property, the existence of business interest, the existence of familial and personal ties;
(b)The existence and strength of possible motives not to return, which include the level of conflict between the parties, particularly over child related issues;
(c)The existence and strength of possible motives to remain in the country of proposed travel including ownership of real estate, the existence of business interests, the existence of familial and personal ties;
(d)Whether the country of travel is a signatory to Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), signed at the Hague on 25 October 1980; and
(e)The financial circumstances of the parties.
Statutory Considerations
The primary considerations set forth in s 60CC(2) of the Act are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or expose to, abuse, neglect or family violence.
In applying these considerations the Court is to give greater weight to the consideration in paragraph 2(b) (see s 60CC(2A) of the Act).
It is not disputed that the child has a loving and meaningful relationship with the mother or that the child has lived with the mother since the parties’ separation.
While it is the case that since separation the child has only spent supervised time with the father, it is clear from the Family Report that the child has a strong connection with the father and enjoys spending time with him. The consent orders provide for a regime of increased time between the father and child, with the child to commence overnight time with the father in February 2026.
On their face, the mother’s proposed orders are unlikely to have any bearing on the child’s relationship with the father, such that they would only allow for the child to travel when the child is not otherwise ordered to spend time with the father.
The father’s primary concern is that if the child is allowed to travel with the mother, the mother is likely to permanently relocate the child from Australia and prevent him from having any relationship with her. I observe this seems exaggerated. Even if the mother absconded to Country B, the father himself, while an Australian citizen, is from Country B and has family there. However, as explained below, I do not consider the mother as a flight risk. The father’s proposal that the child be removed from the Airport Watch List at the age of 12 is founded on the belief that at 12, the child will have access to social media, thus if the mother does remove the child from Australia, he may be able to locate her or contact her through social media.
The father contends that the child would be at risk of harm if she were to be taken to Country B. He claimed that during the nine months in Country B the child was left in the care of domestic workers and suffered “neglect, poor hygiene and inadequate living conditions” as a result of which the child was hospitalised for “severe illness” (Father’s affidavit filed 8 March 2024, paragraph 10). In support of this contention the father annexed an illegible note from a Dr D, a children’s specialist, and two receipts purportedly showing that the child received some medical treatment at E Hospital and F Medical Centre (Father’s affidavit filed 8 March 2024, Annexure “A1”). The evidence does not identify anything other than the child may have received treatment for some illness or injury while in Country B. I do not accept the father’s submission in this regard.
I accept the mother’s submission that she has been and will as a result of the consent orders continue to be the primary carer of the child. I am not satisfied that the father’s evidence supports a finding that the child would be unsafe in the mother’s care if she were to travel overseas.
The additional considerations are set forth in s 60CC(3).
The parties and the child are of Country B background and culture. The child’s extended family, both maternal and paternal reside in Country B. The child last visited her maternal and paternal family in Country B in late 2019. The mother deposed that the child’s maternal great grandmother and grandparents have been unable to travel to Australia due to medical conditions and financial circumstances. The child’s maternal aunt and uncle visited the child and the mother in late 2023 after not seeing them since 2019.
Accordingly, orders preventing the child from leaving Australia will naturally impact the closeness of any relationship the child has or may have with her extended Country B family. This can be ameliorated to a small extent, as suggested by the father, by the child communicating with her extended family by way of video call.
The mother also argued that part of her desire to travel with the child internationally is to enable the child to experience and learn about Country B traditions and culture, being part of her heritage, as well as to learn and witness a variety of different cultures and traditions. The father agreed that the child should be able to learn about and appreciate her culture and heritage, however, argued that “there is a large [Country B] community in Australia of which the child can and should properly be immersed in” (Father’s written submissions filed 8 March 2023, paragraph 21).
Further considerations for international travel
The mother’s orders do not set out a proposal for a specific trip. The father argued that the lack of specificity speaks to the mother’s intention to permanently remove the child from Australia. I am not persuaded by this submission. Her proposed orders would provide a framework to govern the future overseas travel of the child by either parent, with provision for six weeks’ notice.
The father argued that there is a significant risk that the mother will relocate to Country B if she is allowed to travel outside of Australia with the child. He deposed that the mother completed her studies to become a healthcare professional and has applicable work experience in Country B. He argued that she would have the capacity to earn a higher income in Country B as a healthcare professional than she is able to in Australia.
The mother does not own property in Australia and that she lives in a rented apartment with the child. The mother is a permanent resident in Australia and the child is an Australian citizen, though is eligible to receive citizenship in Country B.
The mother contended that her qualifications in Country B are now largely redundant as she has not worked in Country B since her graduation. Accordingly, she would need to undertake further onerous retraining in Country B should she wish to secure employment in her field.
The mother deposed to the extensive efforts she has undertaken since 2014 in order to have her tertiary qualifications, obtained in Country B, recognised in Australia and the other steps she has taken in order to secure employment as a healthcare professional in Australia.
This included sitting and passing two exams in 2014 and 2015. She commenced work as a technician in 2015 while undertaking other temporary employment, including with one employer and currently completing a training program with another employer. The mother claims to have spent approximately $22,000 as well as significant time and effort in ensuring she is able to become qualified as a healthcare professional in Australia.
During this time, she continued to try and obtain a position where she could undertake her required supervised practice under a healthcare professional. Following her successful completion of a period of supervised practice she is required to undertake a final exam. If she is able to successfully complete those final steps she will qualify as a healthcare professional in Australia.
The mother’s affidavit outlined the various challenges she has faced in obtaining a position in order to complete her supervised practice, citing the turbulent relationship with the father and the requirement that any supervised practice be completed in an “area of need”, which are typically located in rural areas. The mother noted that she did not wish to move the child in circumstances where she has formed close ties with children from daycare and where it would have not been feasible to facilitate time between the father and the child. She deposed that in January 2024 she received an offer to complete her supervised practice 45 minutes from where she lives with the child.
It was the mother’s case that she has expended significant time and financial resources in becoming accredited in Australia and that this represents a significant tie to Australia. She pointed out that if she were to relocate to Country B this would negate the extensive steps she has taken in order to pursue a medical career in Australia. In the event she did secure an internship in Country B she argued this would be less than her starting salary in a supervised healthcare professional position.
The mother did not point to any personal or other relationship ties she has in Australia, however she did argue that the child has developed close friendships with her peers, attends school and a number of extra-curricular activities in Australia. The mother deposed that it would not be in the child’s best interests for her to relocate to Country B.
As noted above the mother does have extensive familial ties in Country B. In her affidavit she stated that despite her familial ties she has no desire to relocate to Country B and rather wants to “prove to [her] extended family in [Country B] that [she] can support my daughter and be a successful professional in Australia without the help of any third party” (Mother’s affidavit filed 23 February 2024, paragraph 42).
As noted above, the parties were able to successfully resolve both their parenting and property matters, with the exception of international travel, by way of final consent orders.
The father argued that the parties had been entrenched in highly conflictual parenting proceedings since 2020 and that he only consented to the parenting orders “being fatigued and out of resources” (Father’s written submissions filed 8 March 2024, paragraph 32). He further argued that the consent orders themselves exposed that the mother continues to hold “an ongoing level of suspicion, acrimony and distrust of the [f]ather” (Father’s written submissions filed 8 March 2024, paragraph 32). This would, he contended, motivate the mother to not return to Australia.
The father claimed that criminal proceedings were initiated against the mother by the father’s parents in Country B and she may be required to reside in Country B for an indefinite period. He did not support this assertion with any documentary or other evidence, nor did he explain why facing potential criminal prosecution would motivate the mother to permanently relocate to Country B.
I take account of the fact that the mother previously travelled to and returned from Country B with the child after the parties separated and in circumstances where the mother had no permanent housing, had not returned to work following her maternity leave, had not achieved her current level of medical accreditation, where the child had not commenced daycare or extracurricular activities and where the conflict between the parties was evidently already very high. The mother annexed email conversations between her and the father prior to her return to Australia with the child in mid-2019 which included the father telling the mother two days earlier:
Just to let you know..you are no coming to Sydney unless you follow my conditions which i have already told you and your idiot parents. If you still want to come ..its ur choice..you wont be staying with me.
(Mother’s affidavit filed 23 February 2024, Annexure 2) (As per original)
The father argued that he was comfortable with the mother travelling to Country B in late 2018 and late 2019 as he was confident the mother would return to Australia to resolve the parenting and property disputes. In both instances the mother returned to Australia of her own volition and absent any court order.
I further note that while the mother indicated consent to an order placing the child on the Airport Watchlist on 4 February 2020, there is no evidence that the mother at any stage had plans to permanently remove the child from the country prior to the father’s application in December 2019. The father’s previous applications that the child be placed on and remain on the Airport Watchlist appear to be based on the same arguments presently before the Court.
The father reportedly informed the Family Report writer that he commenced parenting proceedings “due to his perception that [the mother] was unilaterally deciding when he could spend time with [the child] and under what circumstances” (Family Report, paragraph 20). This is of significance in circumstances where, despite orders requiring him to do so on three occasions the father did not seek parenting orders, apart from the Airport Watchlist order, until June 2020.
The father expressed to the Family Report writer that “if full rights are given to the mother, then I want my daughter to stay in Australia until she is 18” (Family Report, paragraph 45). The Family Report writer noted in her report that the father “could not provide any logical rationale for this” (Family Report, paragraph 45). The Family Report writer further opined that father “conveyed the impression of [the child] being a possession … [and] of prioritising his own feelings above what may be in [the child’s] best interests” (Family Report, paragraph 45). The mother submitted that one of the motivations behind the father’s application for the child to remain on the Airport Watchlist is an attempt to exercise some control over her.
Importantly, Country B is not a signatory to the Hague Convention. Consequently, if the mother absconded with the child to Country B, the father would have limited recourse to compel her return. The mother cited several Supreme Court judgments from Country B which she contended demonstrate that the Country B Supreme Court would likely order the child to return to Australia if the mother did contravene the proposed travel orders and attempted to relocate to Country B. The father urges the Court to reject this submission. The position under Country B law requires proof by expert evidence in my view (Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at [115]; Yaling v Tsen (2023) 65 FamLR 437 at [59]). I am unable to take account of the mother’s contentions about Country B law.
The mother’s proposed orders would require the traveling parent to pay a security deposit of $20,000 when travelling to a country that is not a signatory of the Hague Convention. This requirement would be dispensed with in circumstances where the travelling parent holds Australian citizenship and is a registered owner of property in Australia.
It was the mother’s case that in circumstances where she currently earns $2,200 per month and is the recipient of the Single Parent Pension, $20,000 is sufficient to act as security.
The father, however, contended that in circumstances where the mother has $90,000 in savings, if the mother formed the intention of removing the child from Australia she would likely forfeit the $20,000 and transfer the remaining funds to Country B. It was the father’s case that there is a high risk that the mother will permanently remove the child from Australia and that if the mother formed such an intention no bond would reduce that risk.
No information was proffered as to the father’s financial circumstances.
In the circumstances I am satisfied that the mother’s proposed bond is sufficient.
I am not satisfied that there is a risk of the mother absconding with the child to Country B, sufficient to deny the child an opportunity to spend time with her extended family in Country B before she reaches the age of 12 years. The mother’s circumstances, as already discussed, and her proposed bond support this conclusion.
The mother’s proposed orders for international travel provide that either parent be permitted to travel during that parent’s time pursuant to the consent orders and that such travel should not encroach on the other parent’s time. Accordingly, the mother argued that the longest she would be able to travel with the child would be for three weeks in the Christmas or Summer holidays.
I note that the consent orders do not include separate orders for holiday to occur until Term 1 2025. The governing orders from February 2024 until February 2025 provide that the father is to spend time with the child every Sunday afternoon. Therefore, any travel in accordance with the mother’s proposed orders, greater than six days could not commence until February 2025 when the father’s time with the child changes to alternate Sundays or the 2025 Term 1, 2 and 3 school holidays where the father is to spend time with the child on the Monday and the Tuesday of the first week. The mother’s first three week block of exclusive time with the child will be in the Christmas school holidays of 2025.
The father conceded that in the event the child were only to travel when the mother had exclusive time with the child that this would not impede on his time with the child. He, however, expressed considerable concern as to the mother’s proposed order 4 which provides that:
4. In case of an emergency, the parent wishing to travel overseas with the [c]hild most not later than 6 hours prior to travel provide the other parent in writing with the details of travel including:
(i)[r]eason for emergency including any supporting documents
(ii) the dates for departing from and arriving to Australia.
(iii)destination cities and details of accommodation (e.g. hotel name or the name of relatives where the [c]hild will be staying).
(iv)a contact number where the [c]hild can be reached while overseas.
The source of his concern appears to be the understanding that proposed order 4 would allow for the mother to travel with the child during time when the father would be spending time with the child. This belief appears to be in part a result of the mother’s written submissions to the effect that “the mother only proposed to travel with the child during the school holiday period when she has exclusive time with the child except in the event of an emergency” (filed 23 February 2024, p.2). The construction of proposed order 4, as far as I understand it, would not preclude the operation of proposed order 3(a) which states:
3.Each party be permitted to travel overseas with the [c]hild on the following conditions:
(a) That such travel take place during that parent’s time with the [c]hild pursuant to these orders and shall not encroach on the other parent’s time;
The intention of proposed order 4 appears to be to shorten the notice period that must be provided by the travelling parent from six weeks (proposed order 3(c)) to six hours in the case of emergency. I do not find that an order in the terms of proposed order 4 is inappropriate. It is usual for such orders to be made, since experience dictates that provision should be made for the possibility of emergencies in international travel. It is sensible to accommodate this possibility which diminishes the likelihood of contravention applications.
I am satisfied that the proposed regime of notice required prior to either party travelling with the child, would allow ample time for either parent to raise any genuine concerns they may have as to the proposed travel. It also provides the non-travelling parent ample opportunity to apply to the Court to prevent the other parent travelling upon receiving notification of their intention to travel, should they have a genuine reason to do so. The bona fides of any proposed specific travel could be assessed by the Court if such an application is made.
For the reasons given, I will make the orders sought by the wife subject to some minor amendments.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 19 April 2024
ANNEXURE A – MOTHER’S PROPOSED MINUTE OF ORDERS
1. That until the Child turns 6 years old, the father and mother by themselves, their servants or agents be and are hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the Child [X] born […] 2018 from the commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said Child on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watch list.
2. That upon the Child turning 6 years old, the child [X] born […] 2018 be permitted to leave the Commonwealth of Australia, AND IT IS DIRECTED that the Australian Federal Police remove the name of the said Child from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
3. Each party be permitted to travel overseas with the Child on the following conditions:
(a) That such travel take place during that parent’s time with the Child pursuant to these orders and shall not encroach upon the other parent’s time.
(b) That in the event that such travel is to occur to a country that is not a member of the Hague Convention on the Civil Aspects of International Child Abduction that is in force with Australia then the following conditions apply:
(i) Not less than three (3) weeks prior to the proposed date of departure from the Commonwealth of Australia of the Child, the travelling parent deposit a sum of $20,000 Australian Dollars as a bond (“the bond”) to the ‘Federal Court Litigants’ bank account to be held on trust by the Federal Circuit Court Sydney Registry.
(ii) The bond paid by the travelling parent in accordance with 3(b)(i) here in be held by the Court until such time as the Court received 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. If the travelling parent does not return to the Commonwealth of Australia within seven (7) days of the scheduled return date, then the Court by this Order release the bond to the non- travelling parent, except in case 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 a canceled or delayed flight/s.
(iii) If the travelling parent obtains an Australian Citizenship and becomes the registered owner of a property in Australia, then the requirement of the bond under 3(b)(i) & 3(b)(ii) herein is waived. Not less than three (3) week prior to proposed departure from the Commonwealth of Australia of the Child, the travelling parent to provide proof of citizen and copy of the title search to the nontravelling party.
(c) That the parent wishing to travel overseas with the Child must no later than six weeks prior to travel provide the other parent in writing with the details of travel including:
(i) the dates of departing from and arriving to Australia.
(ii) destination cities and details of accommodation (e.g. hotel name or the name of relatives where the Child will be staying).
(iii)a contact number where the Child can be reached while overseas
(d) That 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 departure from Australia and arrival to Australia.
4. In case of an emergency, the parent wishing to travel overseas with the Child must not later than 6 hours prior to travel provide the other parent in writing with the details of travel including:
(i) Reason for emergency travel including any supporting documents
(ii) the dates of departing from and arriving to Australia.
(iii)destination cities and details of accommodation (e.g. hotel name or the name of relatives where the Child will be staying).
(iv)a contact number where the Child can be reached while overseas.
5. 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.
6.Each party shall forthwith 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.
7. 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.
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