BOOTHBY & BOOTHBY

[2014] FCCA 2273

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOOTHBY & BOOTHBY [2014] FCCA 2273

Catchwords:  
FAMILY LAW – Children aged 10, 8 and 7 – overseas travel – father wishes to travel to (country omitted) for two weeks – mother opposes travel on basis he will not return – mother incarcerated – assessment of risk – weighing up of possible benefits and detriments of proposed travel – best interests.

Legislation:  

Family Law Act 1975, ss.60B; 60CA; 60CC; 61B; 64B, 68L

Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Gin & Hing [2010] FamCA 617
Bright v Bright (1995) FLC 92-570

Applicant: MR BOOTHBY

Respondent: MS BOOTHBY

File Number: ADC 3495 of 2013

Judgment of: Judge Brown

Hearing date: 28 August 2014

Date of Last Submission: 28 August 2014

Delivered at: Adelaide

Delivered on: 28 August 2014

REPRESENTATION

Counsel for the Applicant: Mr M. Boehm

Solicitors for the Applicant: Scammell & Co

Counsel for the Respondent: Ms H. Tinning

Solicitors for the Respondent: Barnes Brinsley Shaw Lawyers

Counsel for the Independent Children’s Lawyer: Ms Read

Solicitors for the Independent Children’s Lawyer: Legal Services Commission of South Australia

BY CONSENT THE COURT ORDERS THAT:

1. For the purposes of giving effect to paragraph 3(b) of the order made 3 March 2014 the mother be at liberty to telephone the children on up to three occasions on each of the Sunday and Tuesday provided such calls are made between:

   (a)5:00pm and 6:0pm on the Tuesday; and

   (b)6:00pm and 7:00pm on the Sunday

2. The family assessment report of Dr B dated 20 August 2014 be provided by the independent children’s lawyer to the children’s therapist.

3. The father, via his solicitors, do provide to the independent children’s lawyer a written authority enabling the independent children’s lawyer to directly communicate with the children’s therapist Ms C about the progress of the children’s mental health.

UNTIL FURTHER OR OTHER THE COURT ORDERS THAT:

1. Within seven (7) days of the date of this order the mother sign all necessary passport applications for the children.

2. The father and the children be permitted to travel to (country omitted) during the period 29 September 2014 to 10 October 2014.

3. The father provide details of the children’s travel arrangements and accommodation details in (country omitted) to the mother’s solicitors together with emergency contact details including a mobile telephone number no later than 22 September 2014.

4. The father is to advise the mother’s solicitors within 24 hours of the children’s return to Adelaide pursuant to these orders.

5. A copy of the reasons today be transcribed and provided to the parties.

6. Liberty to apply on short notice.

7. Further consideration of the matter is adjourned to 20 November 2014 at 9:30am.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 3495 of 2013

MR BOOTHBY

Applicant

And

MS BOOTHBY

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally, immediately following the interim hearing.  Given the controversy surrounding the matter and the fact that the mother was unable to be present in court to hear the reasons, it is appropriate that the reasons be transcribed and released to the parties concerned.

2. The proceedings before me, this afternoon, relate to an application for overseas travel in respect of three children of tender years.  The country concerned is (country omitted), which is not a signatory country to the Hague Convention.

3. The circumstances surrounding the case are out of the ordinary, to say the least.  For that reason, I elected to take oral evidence from the applicant concerned, Mr Boothby (hereinafter referred to as “the father”), who is the parent wishing to undertake the travel with the children concerned. 

4. I was of the view that it was necessary, given that the travel in question was so vehemently opposed and the circumstances surrounding the case itself were so unusual, that I should make my own personal assessment of Mr Boothby, particularly so far as his credibility was concerned, in order to assess, for myself, whether any promise he made to the court to return the children to Australia was likely to be honoured.

5. The father and the respondent, Ms Boothby (hereinafter referred to as “the mother”), are the parents of three children.  They are X, aged 10, Y, aged 8, and Z, aged 6.

6. For reasons which will become clear in due course, Ms Boothby, the mother, cannot be present today.  She opposes the travel proposed.  In all the circumstances, I will direct that these orally delivered reasons for judgment be transcribed, so that Ms Boothby can read for herself why I have reached the conclusions, which I have done and made the orders which I will make in due course.

7. The father made application to travel with the children concerned on 31 July 2014.  He seeks that, within 14 days, the mother sign passport applications for the three children concerned and, following that, he be permitted to travel with them to (country omitted) in the (omitted) of (country omitted) from 29 September 2014 to 10 October 2014. 

8. That period, of course, will coincide with the end of term 3 school holidays.  He is prepared to abide an order that he provide the mother with details of the children’s flights to and from (country omitted) and the address of the accommodation where they will be staying in (country omitted) no later than 22 September 2014.

9. As I understand things, pending the outcome of these proceedings, he has not as yet formally booked the flights and the accommodation, but if he receives the Court’s imprimatur for the travel, he will do that shortly.  From his perspective, the purpose of the trip overseas is for a holiday for the family.

10. The mother responded to this application on 22 August 2014.  She seeks that there be an injunction granted which would restrain the father from taking the three children outside of Australia.  As a corollary of that, she seeks that the application regarding the proposed holiday to (country omitted) to be dismissed.  However, if the Court is disposed to allow the children to go to (country omitted), she proposes that there be a financial surety, in an amount of $50,000.00.

11. In addition, she would want to be provided with details of the children’s accommodation and how they are going to get to and from (country omitted) and some emergency contact details.  She also wishes that there be an order for make-up time. 

12. How that order for make-up time is to be satisfied is unclear, for reasons which will become apparent in a moment.  In addition, the mother wishes orders that would require the father to formally notify her brother, Mr R, when the children have safely returned to this country.

13. It is necessary for me to detail the unusual circumstances that surround the parties.  By way of brief background, they were married in October of 2003.  They separated in June of 2008, but reconciled a short time later.  They finally separated at the beginning of 2011.

14. Mr Boothby operates a business which deals in (business omitted).  It is called (business omitted).  From time to time, he has travelled to (country omitted) to buy stock for his business.  Until late September 2013, the mother also worked in the business. 

15. However, she ceased her employment around that that time and this seems to have been the catalyst for the proceedings to be commenced by the father.  He commenced the proceedings on 28 November 2013 seeking to regularise the arrangement through which he spent time with the children.  It was his case that he had been an important figure in the children’s lives up until this stage.

16. At an early stage of the proceedings, the parties were referred to Family Consultant Dr B, for a child dispute conference, pursuant to section 11F of the Family Law Act.  In her first memorandum to the Court, which is dated 13 January 2014, Dr B outlines some of the circumstances which relate to the parties, and she has identified them under the heading Risk Factors.

17. In her answering material, the mother alleged that the father had significant issues to do with the use of methamphetamines.  In this context, it does seem to be the position that Mr Boothby acknowledges that he has had serious prior issues to do with drug abuse, but has overcome his problems through Narcotics Anonymous. 

18. In regards to this, Ms Boothby, in the early part of 2014, was concerned about the people with whom Mr Boothby was associating through Narcotics Anonymous – recovering drug addicts with the potential to behave in an anti-social manner – and who had the potential to come into contact with the children.

19. At that early stage, in addition, each party asserted that the other had been violent towards him or her.  In particular, the mother said that Mr Boothby was a coercive and controlling person, who had been both physically and psychologically violent towards her. 

20. On the other hand, from his perspective, Mr Boothby asserted that the mother, particularly when she was depressed or anxious and therefore not coping with the children – and I should point out that she has another child from an earlier relationship, and he is W, who is aged about 17 – that the mother herself was prone towards fits of violence towards him.

21. In any event, against those difficult circumstances, I made orders for the children to live predominantly with their mother and spend time regularly with their father.  Those orders were made on 16 January 2014.  What happened next was completely unexpected.

22. The father brought an application to Court on 3 February 2014.  He filed an affidavit.  It was a short affidavit in support of his application.  He deposed that, on 16 January, the mother had been arrested by detectives from the Major Crime Investigation Branch and been charged with two counts of solicit to murder.  He was the intended target of those attempts to bring about his murder.

23. The alleged offences happened in 2010 and January of 2014.  Ms Boothby had been taken before the Court and had made no application for bail and been remanded in custody since mid-January.  It is common ground, between the parties, that she had been in custody ever since.  As a corollary of that incarceration, the three children concerned have been in Mr Boothby’s care ever since.  On the father’s application, an order was made to this effect on 3 March 2014.

24. That situation created great dilemmas for all concerned, including the Court, for obvious reasons.  The children’s lives had been turned upside down.  Their mother – whom it appears clearly to be the case had been their primary or main provider of care up until this stage – had been taken away from them, against a background where it was alleged she attempted to do very serious harm to the children’s father.

25. How was that difficult issue to be dealt with?  What were the implications of it?  In particular, was it appropriate for these young children to go and see their mother in prison – given all the psychological trauma that might arise from that.  Were there other possible custodians for the children, from the maternal side?  What were the emotional implications for the three children of this very significant change in their circumstances?  How strong was the case against the mother?

26. Notwithstanding the mother’s situation, she continued to engage solicitors to represent her in proceedings before the Court, and in particular, members of her family, chiefly her brother, Mr R, became indirectly involved in the proceedings.  They have not sought to become parties in the case, but have been involved in arrangements for the children vis-à-vis their mother.

27. Against this difficult background, on 15 April 2014, I made an order that the children be independently represented in the proceedings.   The children’s representative is Ms Rebecca Reed, an experienced family lawyer employed by the Legal Services Commission.  She is to be regarded as a party of equal importance to the parents in the case.

28. Ms Reed has a statutory responsibility, arising under section 68L of the Family Law Act, to assess all the evidence available in the case and advocate what she thinks is likely to be the best outcome for the children concerned.

29. In this case, she has briefed Mrs Read – who is not related to the independent children’s lawyer but happens to share the same surname in phonetic terms if not in spelling – who is a barrister, in order to advocate on her behalf in these proceedings.  In general terms, Ms Reed supports the children travelling to (country omitted).

30. On 15 April 2014, I again asked Dr B to meet with the family, including the three children concerned, to see what were their views, if any, about the current situation.  In the jargon of the court, this was known as a child inclusive family dispute resolution conference.  In addition, I was interested to ascertain, if at all possible, how the children were coping with what was, axiomatically, a very traumatic situation for young children and obtain some expert advice as to what should happen next. 

31. The issue at that stage was whether the children wanted to go and visit their mother in the prison and whether this was appropriate.  In addition there were issues as to how they could spend time with members of their paternal family, particularly their uncle and grandmother, and spend time with their older half-brother W.  Dr B was also asked to examine what was the best form of counselling for the children concerned.

32. X, Y and Z told Dr B that they were missing their Mum and thinking a lot about her.  Importantly, they indicated that they wanted to visit their mother frequently at the prison.  They also said that they missed their maternal grandmother and wanted to see her as well. 

33. Mr Boothby reported that he was in agreement, in general terms, with the children seeing their mother in prison, and as I recall, he confirmed that he and Mr R had a reasonably workable relationship with one another. 

34. At this preliminary stage, Dr B thought that it might be useful that there be a family assessment report prepared.  As a consequence of this recommendation, a family report was ordered to be prepared, and, given Dr B’s involvement with the matter, up to this stage, she was asked to provide it.  The report is now to hand.

35. Mr Boothby was also ordered to consult the children’s local GP in order to access a GP mental health plan, under the Commonwealth Scheme, in order to ensure that the children concerned could undergoing a process of appropriate counselling.

36. Some orders were also made, given what had been said at the child inclusive family dispute resolution conference, for the children to see their mother from time to time and speak with her regularly in the prison.  

37. Mr Boothby’s reasons for wishing to travel to (country omitted) can be fairly briefly summarised.  In his affidavit filed on 31 July he says that 2014 has been a difficult year, both for himself and the children, and given the circumstances I have outlined up until this point, that can hardly be doubted. 

38. Earlier in the year, he himself had travelled to (country omitted).  He went to (country omitted) to meet his now fiancée, Ms W. I mean Ms W no disrespect, by referring to her by her first name, but that is how she has been referred to throughout these proceedings.  She is a person from (country omitted).  I will come back to her shortly.  In any event, Mr Boothby went to (country omitted).  He formed a favourable impression of (country omitted) and thought it would be a nice place to have a family holiday.

39. His parents – his adopted parents – are Mr J and Ms M.  They are both people in their early 70s, I think.   They are retired.  They live mainly in Queensland, but in the crisis which has arisen, they have left Queensland to support the father.  Currently, Mr Boothby is living with his parents and the three children in rented accommodation.  Mr and Mrs Boothby Senior are going to fund the trip to (country omitted), if it is approved and they will go along as well.

40. Ms Boothby has opposed the trip on a number of grounds.   Firstly, she criticises the father for not telling her that he had taken the children to a holiday in Queensland earlier in the year and had himself travelled to - as she specifies it, (country omitted), but it is clear that she is mistaken in that regard and she means (country omitted) in (country omitted). 

41. Secondly, she is also concerned that the father intends to introduce the children to Ms W and will marry her in (country omitted).  She is concerned that Mr Boothby has behaved in a deceitful way both about Ms W and about his earlier travel overseas to spend time with her.  Ms Boothby did not know of either the existence of Ms W or the trip overseas to meet her.

42. This comes to the major nub of the mother’s concern about the children travelling to (country omitted).  She fears that Mr Boothby will either marry Ms W or become more closely involved with her and thereafter be inclined to go and live with Ms W and the children in either (country omitted) or somewhere in (country omitted) or possibly some other (omitted) country in between (country omitted) and Australia.

43. It is her assessment that (country omitted) is a concern that is either insolvent or teetering on the verge of insolvency.  In those circumstances, she asserts that the father has every incentive to walk away from a company that is dying and start a new life for himself overseas.  In addition she points to the fact that Mr Boothby is living in rented accommodation; has no real property in Adelaide or indeed elsewhere in Australia; and few assets which tie him to this country. 

44. As I alluded to, when I set out the brief introductory background of the turbulent one, marked by several separations and reconciliations.  It is Dr B’s understanding that, in 2009 or thereabouts, Mr Boothby was charged with breaching intervention orders and indeed, with a count of conspiracy to pervert the course of justice, and received a term of imprisonment. 

45. In those circumstances, the mother asserts that, as Mr Boothby has disobeyed court orders that pertain to him and indeed breached his bail,  therefore if he is allowed to go to (country omitted), the Court can have no confidence that he will return, as he is a person who has essentially no regard for court orders.

46. In all those circumstances, I formed the view that it was incumbent upon me to hear some evidence directly from Mr Boothby, so I could form my own assessment of him.  To be perfectly frank, with Mr Boothby, people who have had issues, in the past, to do with amphetamines and where there are allegations that he has been the target of a serious criminal enterprises, their behaviour perhaps may not be as predictable as that of other citizens.  In these highly unusual circumstances, I thought it was incumbent upon me to have a look at Mr Boothby and make my own assessment of him.

47. Mr Boothby – and I mean him no disrespect – is a knockabout bloke.  I found him to be frank and honest in his answers to me and I found him to be a credible person.  He, with Dr B in the family assessment process, was, I think, honest about the difficulties he had faced in becoming the main parent for three children, who had gone through what can only be described as an extreme level of trauma. 

48. Dr B, in her completed family report, indicated that Mr Boothby had become more relaxed, in his role as the children’s primary carer, than when he had been in May, when she first met him.  Mr Boothby indicated to Dr B that the children’s counsellor, Ms C, had been a very valuable resource for him and taught him a lot about the children and their emotional needs. 

49. Mr Boothby said that initially that he had felt that he had L plates on in respect of his parenting, but was getting more relaxed about it.  In her evaluation, Dr B thought that the three girls were emotionally less distressed than they had been earlier.  That is, I think, greatly to Mr Boothby, and indeed to Mr R and the maternal grandmother’s credit that the children are getting on okay.

1. I asked Mr Boothby a number of questions, as did Ms Boothby’s lawyer, Ms Tinning, about the business and its overall viability.  As I say, my impression of Mr Boothby is that he is a knockabout sort of bloke.  He tells me that he grew up on a farm and has a love of the (hobbies omitted). 

2. He was upfront, I think, with me that he has not always been the most successful business person in the world.  But he told me that he loves doing what he does, which is (business omitted). 

3. He has significant stock but he also has significant debts.  He has – to use the vernacular – maxed out his credit cards and has significant debts to his parents, who seem to be willing to stick by him through thick and thin.

4. He has a number of staff on his business, including a bookkeeper, someone who helps the bookkeeper, two (omitted), a (omitted) and a (omitted).  It is neither possible nor my function to assess the viability or value of the business at this stage. 

5. I do, however, accept that Mr Boothby likes the business and that he wants to keep on going with it and therefore his continued involvement with it is, of itself, a significant incentive for him to return to this country with the three children concerned.

6. More significantly, I accept Mr Boothby’s evidence that he accepts and realises that it is in the fundamental best interests of the three children concerned that they continue to live in Adelaide and keep in with the social network and support that they have here in the form of their friends, their sporting groups and their maternal family and school companions. 

7. Dr B, I think, was impressed with Mr Boothby, particularly how he was going in and approaching his role as the children’s primary carer.  In my assessment, I do not think that Mr Boothby is the sort of person who would put his own emotional needs before those of the children. 

8. As is the way of the modern world, Mr Boothby and Ms W met one another online.  She is a person who has an adult son or a nearly adult son, who lives in (country omitted).  She has business interests in real estate in (country omitted).  How successful or otherwise they are, I am not precisely sure.

9. Mr Boothby met her in August of last year in (country omitted).  She has not travelled to Australia.  Mr Boothby’s evidence was that she was refused a tourist visa because there were concerns that she would overstay such a visa.

10. In due course, he, in conjunction with Ms W, is interested in exploring how she might come to this country in due course.  He has proposed to her and she has said yes.  However, the parties have not set a date – Mr Boothby and Ms W have not as yet set a date for a marriage. 

11. Mr Boothby’s evidence was that the three children come first and one of the purposes of the holiday to (country omitted) is for the children to meet Ms W in a relaxed and comfortable setting and see how they get on with one another.

12. Where that will lead, Mr Boothby says he is not as yet sure.  But, as I say, from his perspective, the children come first.  Mr Boothby has been to (country omitted) in the past.  He has been a regular visitor there over the last decade or so.  He has gone there to purchase stock for his business.  He does not speak (language omitted).  His evidence to me was that (country omitted) is not a place that he finds particularly attractive in a personal sense.  He does not want to live there.

13. More importantly, it is my assessment that, in practical terms, he really could not exist, with three young children, in (country omitted).  Before I heard his evidence, I conjectured to myself whether the (omitted) business was a front for some sort of criminal enterprise. 

14. It is a curious thing when issues relating to conspiracy to murder arise. They suggest that any such person involved in such behaviour, either as a protagonist or potential target, are persons involved in a criminal milieu.  There is no evidence before me, and it has not been suggested to Mr Boothby, that he has a significant income stream that comes from some clandestine or secret source.

15. Certainly, the evidence that is available to me does not indicate that he lives in a manner that is not other than congruent with his purported financial circumstances.  Mr Boothby does not present himself nor act like a wealthy person.  Accordingly, if Mr Boothby was intending to live in (country omitted), he would have to get some form of employment for himself or have to be supported by Ms W. 

16. It is my assessment that the probability of Mr Boothby being able to finance himself, in any sustainable way, in either (country omitted) or (country omitted) is extremely limited.  I accept his evidence, in addition, that neither location has any appeal for him as a long-term home.

17. Fundamentally, I accept his evidence that he likes what he does for a living and he likes his life in Australia and has no incentive to change it.  It is also, I think, significant that from my perspective, he does not appear to have behaved with any level of vindictiveness towards Ms Boothby and, indeed, has supported the children, maintaining their relationship with her in what can only be described as extremely difficult circumstances. 

18. In this context, it is a significant matter that Ms Tinning has indicated that her client is intending to plead guilty to one of the counts of conspiracy to murder and it is anticipated that she will be sentenced to a significant prison sentence as a result.

19. 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].

20. 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. 

21. Accordingly the issue of whether the children concerned in this case should or should not travel to (country omitted) in (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)].

22. 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, Y and Z’s best interests to travel outside of Australia.  Necessarily, given the structure of the Act, this is a multi-faceted inquiry.

23. 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.

24. 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. 

25. 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.

26. 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.

27. 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)]. 

28. 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.[1]

    [1]  See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205

29. 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. 

30. This is the essence of the mother’s concerns.  She asserts that the father will not honour his promise to return and that, as a consequence, the children will be robbed of their precious relationship with her.

31. 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.

32. 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.[2]

    [2]  See Line & Line (1997) FLC 92-729 at 83,846

33. I can never rule out the possibility that Mr Boothby is a sophisticated person, who has a longstanding plan to move the children out of this country.  However, in my assessment, the risk of that is a very small one. 

34. I accept that Mr Boothby has significant ties with Australia and that any potential risk or motive he may have not to return the children to this country is very small.  His reason for wanting to travel, in my assessment, is a genuine one and the length of the trip is a modest one. 

35. In my view, in all the difficult circumstances which the three children have had, it is likely to be beneficial to them to have a nice holiday in a nice environment with their father and their paternal grandparents.

36. It is difficult to see that this holiday will have any significant consequences for the children’s relationship with their mother.  In all the circumstances, I do not think it is necessary to impose any security or fix any sum of money to guarantee the children’s return. 

37. I am well aware that (country omitted), the (country omitted) and (country omitted) are not signatories to the Hague Convention.  However, for the reasons I have provided, I think the likelihood that Mr Boothby will be able to function in those countries is extremely slight.

38. As Mr Boehm, counsel for the father, points out, many thousands of Australians, including families with children, travel to (country omitted) each year.  True it is that there was a very significant terrorist incident in 2002 but regrettably, we live in an age where every country in the world is subject to the risk of a terrorist atrocity. 

39. That of itself, in my view, is not reason to forbid the trip nor is it a ground on which the mother relies.  Rather, it is her position that the children may not come back because of the father’s relationship with Ms W.

40. Having heard the evidence, I think it is more likely that Ms W would prefer to live in Australia with Mr Boothby than vice versa.  I have heard no evidence from Ms W, but Mr Boothby’s evidence is that that is her preference. 

41. One must be careful not to be blinded by the attractions of one’s own country and not realise that citizens of other countries prefer their own country, but I accept that Ms W is likely to prefer to live in this country rather than (country omitted), which is a developing country beset with all manner of issues.

42. So for those reasons, I have come to the conclusion that I should make the necessary orders authorising the father’s proposed trip to (country omitted), with the children, subject to the normal conditions relating to providing information about the travel to the children’s maternal relatives.

43. For all these reasons, the orders of the court are as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date:             28 August 2014