Clayton and Bant (No 2)

This matter concerned a dispute between a father and mother regarding the time their child, Y, would spend with the father. The court was required to determine the quantum of time the child would spend with the father and the conditions to which that time would be subjected. The child expressed a desire to spend more time with the father, with whom she maintained a loving relationship, and the father indicated he could meet the demands and expense of supervised time in Australia. However, the mother held a genuine belief that the father posed a risk of unilaterally removing the child from the jurisdiction without her consent, a risk the court found to be unacceptable due to the potential negative impact on the child's emotional wellbeing.

The central legal issue before the court was to balance the child's desire to spend time with her father against the mother's genuine concerns about the father's potential to remove the child from the jurisdiction. The court was required to make findings regarding the risk of such removal and determine what arrangements, if any, were in the child's best interests. This involved considering the father's stated intentions and the mother's fears, as well as the practicalities of supervised time in Australia.

Forrest J found that there was a real risk the father would unilaterally take the child outside of the jurisdiction to live with him if supervised time was not ordered. Consequently, the court determined that it was in the child's best interests to spend supervised time with the father in Australia until she turned 18. The court also made orders regarding the father's costs in relation to an application by the mother for a witness to give evidence electronically, finding it unreasonable for the father to have initially opposed this application before changing his position.