Doyle & Baldini
[2025] FedCFamC2F 1019
•16 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Doyle & Baldini [2025] FedCFamC2F 1019
File number(s): SYC 1424 of 2024 Judgment of: JUDGE ELDERSHAW Date of judgment: 16 May 2025 Catchwords: FAMILY LAW – Application to remove children from the Airport Watchlist – Application to take the children on an overseas holiday – Where the mother seeks to take the Children to a non-Hague Convention country – Where the mother is not a flight risk and has significant ties to Australia- where the Independent Children’s Lawyer went above and beyond the call of her duty by explaining the orders to the children outside of normal business hours – where the Independent Children’s Lawyer went above and beyond the call of her duty by making her firm’s trust account available to the parties for the purpose of depositing and retaining a surety during the pendency of the overseas travel Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65Y, 69ZL Cases cited: Adamson & Adamson [2018] FamCA 523
DeLuca & Farnham [2019] FamCAFC 100
Goode & Goode (2006) FLC 93-286
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Division: Division 2 Family Law Number of paragraphs: 87 Date of hearing: 16 May 2025 Place: Sydney Applicant: In person by Webex Solicitor for the Respondent: Ms Nadeem (Chidiac Legal Pty Ltd) Solicitor for the Independent Children's Lawyer: Ms Mason (Mason Mia & Associates) ORDERS
SYC 1424 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DOYLE
Applicant
AND: MS BALDINI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
16 MAY 2025
THE COURT ORDERS THAT:
1.Subject to her performance of Order 2 herein, the mother be permitted to cause X born in 2012 and Y born in 2014 (the children) to be removed from the Commonwealth of Australia to travel to Country C, specifically to Country C, for the purpose of a holiday from 19 May 2025 to 29 May 2025 inclusive.
2.By not later than 12:00pm on 19 May 2025, the mother shall pay a bond of $10,000 into the trust account of the Independent Children’s Lawyer by way of a surety, with such funds to be released on 10 June 2025 to the father if the mother does not cause the children to be returned to Australia in accordance with these Orders but otherwise to the mother’s legal representative.
3.The Australian Federal Police be directed to remove the names of the children X born in 2012 and Y born in 2014 from the Family Law Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
4.The Independent Children’s Lawyer is directed to explain the effect of today’s orders to the children at her earliest convenience.
5.Each parent is restrained from identifying to the children the outcome of the mother’s application to travel with them to Country C until after the Independent Children’s Lawyer confirms to them both by email that she has explained the effect of today’s orders to them.
6.Order 1 and 2 of the mother’s Application in a Proceeding filed 6 May 2025 and the father’s Response to the Application in a Proceeding filed 15 May 2025 are otherwise dismissed.
Balance of Application in a Proceeding filed 6 May 2025
7.Orders 3 to 11 inclusive of the mother’s Application in a Proceeding filed 6 May 2025 be adjourned for case management only to the Compliance and Readiness Hearing before her Honour Judge Eldershaw at 12:00pm on 7 July 2025 by Webex.
8.By 4:00pm on 30 June 2025, the father is to file and serve a Response to Orders 3 to 11 of the mother’s Application in a Proceeding and such affidavit evidence on which he intends to rely in respect of such Response.
Liberty to File Terms
9.The parties are otherwise at liberty to write to Chambers at …@... with proposed consent orders and to vacate the next Court event provided the Consent Orders are filed with Chambers containing:
(a)One scanned copy of the Orders signed and dated by all parties on each page;
(b)A clean, unprotected, word version of the Orders being sought, in exactly the same terms as the signed document; and
(c)For final parenting orders, certifications by each party, or if represented by a lawyer, the party’s legal representative, in an annexure to the proposed consent Orders as required by rule 10.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
THE COURT NOTES:
A.The children are booked to depart Sydney Kingsford Smith Airport on … at … on 19 May 2025 arriving City E at … that evening; and return from City E Airport on … at … on 28 May 2025 arriving into Sydney Kingsford Smith Airport at … on 29 May 2025.
B.The children will be staying at “[…]” accommodation in Country C for the duration of the holiday.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE ELDERSHAW
INTRODUCTION
By her Application in a Proceeding filed 6 May 2025, Ms Baldini (the mother), who is the respondent in the substantive proceedings, seeks orders to remove the children, X and Y (the children) who are aged 13 years and 10 years respectively from the Airport Watch List. Her affidavit filed 2 May 2025 upon which she relies in this application, makes it clear that she also seeks an order permitting her to remove the children from the Commonwealth of Australia between 19 May 2025 and 29 May 2025 for the purpose of taking them on a holiday to Country C. The mother, during the course of submissions, also proffered a surety of $10,000.
Mr Doyle (the father), in his Response to the Application in a Proceeding filed 15 May 2025, seeks to dismiss the mother’s application.
The Independent Children’s Lawyer (ICL) supports the mother’s application.
As to the material before me on this application:
(a)the mother reads her Application in a Proceeding filed 6 May 2025, her affidavit filed 2 May 2025 and pages 1 to 5, 8, 9, 15 and 19 of Exhibit M-1;
(b)the father relies on his Response to Application in a Proceeding and affidavit both filed 15 May 2025; and
(c)the ICL asks me to read the whole of the Child Impact Report prepared by Dr F dated 29 November 2024, which I have marked as Exhibit ICL-1. The ICL also relied on page 12 of Exhibit M-1.
For the reasons that follow, I will allow the mother to take the children to Country C for a holiday between 19 and 29 May 2025.
BACKGROUND
Both parties were born in 1992 and are currently 32 years of age.
The parties commenced cohabitation in or about 2012 and separated under the same roof in November 2017. The parties ceased cohabitation in March 2018.
There are two children of the relationship as described above. The children have lived with the mother since separation.
Family Violence
The mother contends that the parties’ relationship was marked by incidents of family violence. The mother sets those incidents out at paragraph 9 to 11 of her affidavit filed 2 May 2025. The mother deposes the following:
(a)an altercation in 2016 whilst she was holding Y, who was then a very small child, in which the father strangled the mother and caused her to lose consciousness;
(b)an incident in March 2018 where there was an argument, the mother says, between the parties which escalated. The mother contends that she attempted to leave the home with the children, but the father attempted to stop her by forcibly taking her car keys, twisting her wrist and striking her in the ribs. She deposes that when she attempted to call the police, the father took her phone, threw it down the stairs and shut the windows while she screamed for help. She deposes that she then retreated to another room while the father punched holes in the walls and attempted to drag her from the house; and
(c)other less specific incidents of family violence are identified at paragraph 11 of her affidavit which I have read but need not reproduce in these Reasons.
The father denies the mother’s allegations of abuse, threats, aggression and emotional harm and says that they are either fabricated or grossly exaggerated. Although the father submits the mother has caused the children to become alienated from him due to examples of unilateral decision making (including booking the subject holiday to Country C), which might be read as a tacit submission of emotional abuse. The father does not raise any issue of the children’s safety in the mother’s care as a general proposition. For instance, he made a submission to the effect that the mother could take the children on a holiday within Australia on the proposed dates instead of travelling to Country C. Given the enormity of distances involved in any number of Australian holiday destinations from Sydney, it is tolerably clear that he does not apprehend a risk to the children in the mother’s care were she to take them on a holiday.
In the context of an interim application on the discrete issue of a 10-day holiday in the mother’s care, I need not, nor cannot resolve the factual contest between the parties as to family violence.
Final consent orders were made between the parties, dated 25 October 2018, the details of which I am not aware. These proceedings were commenced by the father by way of re-opening on 28 February 2024.
Page one of Exhibit M1 records that the parties exchanged text messages in February 2023 in which the father wrote:
[Ms P] also said I'm over reacting to this and I want us to co parent better and make this a positive so I'll sign it - just let me look at the options for if anything was to go wrong overseas etc etc.
please don't do quadbikes in a third world country with them - it's insanely dangerous even here.
I'll also explain to the kids that I was over reacting about the safety thing and it was in my head.
The mother responded:
Okay sounds good. I'm happy to give you all the info when and if we book. I'm not going to keep you out of it, you will know all details and be kept up to date. It will be fine. We need to trust each other with this and make sure we keep each other up to date with the kids. Works both ways. I'm confident we can work through it. The kids are going to be so happy and excited.
The father gave a “thumbs up” emoji to the mother’s response.
Pages two to five of Exhibit M1 record a text message exchange between the parties in August and September 2023 concerning Y’s passport. The mother had not yet booked a holiday at the time but was wishing to do so, with contemplated destinations of Country G, Country C or Country H. The father agreed to take the steps required for Y to be issued with a passport with a text message in terms of “Passport done” and a “tick” emoji. The father explained in his oral submissions that his partner at the time encouraged him to agree to the passport and counselled him on the need to be flexible towards the mother. The father distinguished the events of 2023 with the current application on the basis that the parties were not engaged in litigation at the time.
The mother deposes, without demur from the father, that X has been wearing a headscarf in connection with X’s wish to observe with the Islamic faith. I gather that she has been wearing a hijab since about mid-2024. It is a common fact that the mother observes the Islamic faith and wears a hijab. The father is not Islamic. Order 17 made on 13 December 2024 requires the parties to permit X to dress in accordance with her wishes. Although there is no order about the religious observance by the children, there is an order for equal shared parental responsibility (which necessarily, unless otherwise stated, encompasses religious and cultural upbringing) and an Order permitting the children to observe Eid-al-Fitr and Eid-al-Adha with the mother.
The mother deposes that, in September 2024, X told her “Dad threatened to physically drag me out of the car and up to the apartment because I refused to remove my headscarf.” It is only the mother’s deposition, I do not accept it as a fact other than to take each party’s case at its highest.
Interim Orders
On 13 December 2024, following a contested hearing, interim orders were made by a Senior Judicial Registrar granting the parties equal shared parental responsibility, and that the children live with the mother and spend time with the father each alternate week from after school on Friday, or 3:00pm if it is not a school day, to Wednesday before school begins, or 9:00am if not a school day, and half of each school holiday period.
Orders were made restraining each party from permitting or arranging for the children to attend on a counsellor or psychologist without the other party’s consent, save that the father was to provide the mother with a list of three psychologists by 15 January 2025 for the purpose of providing the children with therapeutic support with respect to their welfare including parental conflict. Various ancillary orders were made to give effect to that Order.
In addition to the Order concerning arrangements for psychological support for the children, the interim orders also granted liberty to the father to arrange family therapy between himself and the children at his expense. The ICL submitted, without demur from the father, that such family therapy has not been arranged.
The interim orders also provide for telephone contact, interstate travel, and other matters which do not require elaboration for present purposes.
The mother deposes that on 15 December 2024, while the children were in the father’s care, X reported to the mother that the father was not allowing her (X) to wear a headscarf. The parties spoke directly and the mother deposes that the father said to the mother “I will let her do what she likes about the headscarf”. The mother deposes that when the children returned to her care, X reported that the father did allow her to wear a headscarf however he told her that she was “representing terrorists” by wishing to do so.
The mother deposes that, on 26 December 2024, while the children were in the father’s care in Queensland, X called the mother and stated that the father was again not letting her wear her headscarf. The mother deposes that X was breathing heavily, choked up and crying. The mother deposes that she offered to speak to the father about this, but X asked her not to. The mother deposes that she spoke to the father, who threatened to have her “bashed”, whereafter the father hung up on the mother and did not answer subsequent calls from her.
The mother deposes that on 12 January 2025, X stated that she and her father had been engaged in a two to three hour argument on 22 December 2024 about X’s wish to wear a headscarf. X told the mother of this argument “Mum I told Dad that I want to kill myself, I want to kill myself!”, which resulted in the father desisting from the argument. The mother deposes that X also said “Mum, I was so upset and screaming at dad that I want to kill myself. After I realised my hands had nail marks on them from clutching my fists so tight to the blanket they hurt so much after”.
Page 19 of Exhibit M1 is a partial text exchange between the parties on, what is agreed to be, 12 January 2025. The mother’s text includes the words “regards to the self-harming incident” which orientates the discussion to the alleged events on 22 December 2024. The father’s response to the mother’s text, as found on page 19 of Exhibit M1, reads:
The "self harming incident" doesn't exist mate - it was a serious conversation and that's it. Do you think I can't see how insane you're behaving making this stuff up? Keep pretending for the court
She's anxious from you fucking with her head coercing her into thinking a book with absolute bullshit in it is true and I refuse to lie to her about it. That's not up for discussion either - I'll teach them how whack your taliban flavoured beliefs and practices are because that's the truth.
There's lots of other ways to practice Islam that don't require her being in a hijab - it's just that one of your multiple husbands over the years thought a particular way was better. They're all false teachings of reality to be fair, but either way it's my duty to give them an out if they want it. We can't all be dole bludgers spending 100% of our time coercing children into practices that keep them under our control for as long as possible.
Anyway this has been fun but I know you too well [Ms Baldini] - you're lying and pretending again and it's clear as day. Quickly go focus on the kids or something before husband #3 gets assigned to you.
(emphasis added)
In oral submissions, the father confirmed that the book with “absolute bullshit in it” means the Quran.
The father’s oral submissions to the Court today were to the effect that the self-harming incident was “a serious incident”. Plainly, there is an impossible tension between the relatively contemporaneous text message which accuses the mother of “Taliban flavoured beliefs” and the Quran being a vessel of “absolute bullshit”, and his submission today.
The mother deposes that, on 14 January 2025, she proposed three psychologists for X pursuant to the December 2024 interim orders. The mother deposes that she did not receive a response from the father and so followed up on 16 January 2025. The mother deposes that she still did not hear from the father and so after a few days, contacted X’s previous psychologist, Ms J, seeking an urgent appointment. X then attended on Ms J by way of a telehealth appointment a few days later and an in-person appointment was booked for 30 January 2025.
Annexure B of the mother’s affidavit is a letter “to whom it may concern” from Ms J which corroborates the mother’s evidence that X attended on the writer on 30 January 2025 and that during the appointment, X disclosed that she had experienced thoughts of self-harm while visiting her father on 22 December 2024.
The mother deposes, without demur from the father, that on 20 January 2025, the father messaged her to inform her that he was travelling to see his mother in Brisbane and offered to take the children with him. She deposes that he did not address the concerns she had been raising about X’s need to attend on a psychologist.
The mother deposes that on or around 22 January 2025, she contacted a Helpline for advice on how to address X’s mental health.
The mother deposes that, on 4 February 2025, her solicitors received correspondence from the father’s then-legal representative proposing the names of three psychologists for X. The mother says she made enquiries of these nominees, but none were available for several months.
Page 12 of Exhibit M1 is an email from the mother’s solicitor to the father dated 13 March 2025. The email refers to the outcome of a mediation on 5 March 2025. I note that all parties agreed that I may read the email and that it was not implicitly, or otherwise, without prejudice. The email records that at the mediation, the parties agreed to the father taking steps to organise family therapy at K Centre at Suburb M for himself and the children within seven days, and that all parties would attend family therapy. I am mindful of Order 13 of the 13 December 2024 interim orders which address family therapy such that I understand the agreement reached at mediation to be one which developed and refined those orders.
The mother deposes that the text exchange appearing at Annexure D of her affidavit occurred on 14 March 2024, though the text exchange is itself, undated. The exchange records the father suggesting that the parties resume cohabitation in a bigger home so that the children could have “the best of both worlds”. He goes so far as to consider converting to Islam if it would mean he could be with the children. The mother did not agree to the proposal, asking the father to solely focus on the children and be there for them.
On 27 March 2025, without prior notice to, or consent of the father, the mother booked airfares and accommodation for the children to travel to Country C for a holiday between 19 and 29 May 2025. The mother says she was unaware of the children being on the Family Law Watch List at the time of the booking. In the presence of a parenting order (not least the 13 December 2024 orders), this is a moot point. Section 65Y of the Family Law Act (Cth) (Act) provides that absent the other parties consent, or an Order of the Court, it is a criminal offence for a party to remove the children from the Commonwealth of Australia. Furthermore, the 13 December 2024 interim orders are silent as to overseas travel, yet specifically allow interstate travel. It is a real concern to me that the mother, being consistently legally represented, may have thought that she could take the children on an overseas holiday without telling the father or making an application to this Court in the midst of extant proceedings, of which this Court is properly seized of jurisdiction, and the issue may only have come to light once she realised the children were on the Family Law Watch List. That is a matter for final hearing.
The text exchange appearing at Annexure E of the mother’s affidavit necessarily post-dates 27 March 2025 given its reference to having “booked”, in past tense, the airfares and accommodation. The mother asked the father to consent to the trip, to which he replied inter alia “Hard no sorry I’ll support nothing non-essential until I consistently get my time with them which is without you […]”
The text exchange at page 9 of Exhibit M1, although undated, appears contextually to follow the exchange found at Annexure E of the mother’s affidavit. The mother stated, amongst other things:
Last time you messaged me you wanted to move in together and convert to Islam and today you are stopping your kids from experiencing travel. It's all good. I will go through the necessary avenues in court that I need, and the children will know you stopped them. Thanks for you time and have a good day.
To which the father responded:
Well you said no to that, so obviously that flexibility on my part isn't there unless that's on the table. It's definitely not a love of control, I have no control over anything obviously – but supporting their travel doesn't seem right to me when they haven't spent any time with me since January. Happy for you to tell them I stopped them going – their time with me is more important. Support that and I'll be flexible.
I note that the sarcastic nature of the mother’s text, and the content of the father’s response was unnecessary. If there is one answer to each party having control, it is over their own responses to one another. Again, that is a matter for final hearing.
On 6 May 2025, the mother filed her Application in a Proceeding which is partially the subject of this decision. The matter was referred by the Registrar to my Chambers and made returnable for case management on 14 May 2025, being a pre-existing date for a Compliance and Readiness Hearing pursuant to directions made on 5 May 2025.
On the morning of 14 May 2025, the matter was listed for a Compliance and Readiness Hearing. There was no appearance by the father, who had mis-diarised the Court event. The matter was stood down until the afternoon to allow contact to be made with the father and potentially hear the travel application on an undefended basis.
Page 15 of Exhibit M1 is an email exchange between the mother’s solicitor and the father during the adjournment on 14 May 2025. The father expressed his position to the proposed travel in terms:
It’s a pretty complicated issue - I’ve not seen my children since the start of January so I can’t support them travelling overseas to [Country C], particularly as a Muslim majority country. [Country C] might be largely flexible and Hindu but it's part of a wider nation and I have no idea what has been going on with my children since [Ms Baldini] stopped me seeing them.
So my position is to not support them travelling overseas until I have the right to parent and see my children.
Were I to have time with them I'd be flexible and supportive of them being in [Country C] for a holiday as it would give me some confidence they were safe and happy and would at least from there perspective expect to come back, but at this stage I have no idea if I'll be able to see them again at all, let alone if they travel overseas.
CHILD IMPACT REPORT
Dr F (Expert) prepared a Child Impact Report dated 29 November 2024 in these proceedings (Report). Interviews occurred on 28 and 30 August 2024.
Of the interview with X, the Expert opined that X impressed as a regulated and intelligent pre-teenage girl, who was articulate, insightful and mature for her age. X was initially anxious about the interview but appears, according to paragraph 19 of the Report, to have managed the interview well. On the subject of X’s wishes to wear a hijab and observe the Islamic faith, the Expert recorded at paragraph 25 and 26:
25. [X] shared that she has started experiencing anxiety symptoms both before and after spending time with her father. She described these symptoms as a tendency to "overthink", along with low energy, sleep disturbance, reduced appetite, and nausea. [X] mentioned that she has attended approximately three sessions with a psychologist to address her anxiety symptoms. She also reported that she has been referred to another psychologist and will be starting with them soon.
26. [X] expressed love for both of her parents and identified her mother as the parent with whom she has a safe and secure relationship. She stated that she deeply wishes to spend more time with her father and has been seeking this for some time. However, she emphasised that she is not willing to increase her time with him if it comes at the expense of feeling oppressed. She sought for her father to respect her decision to become a Muslim and allow her to practice her faith.
Of the interview with Y, the Expert opined that he presented as an engaging, energetic young man displaying a cheeky but courteous interpersonal style. I note paragraphs 30 and 34 of the Report which state:
30. [Y] spoke warmly about both of his parents, noting that they have very distinct personalities and parenting approaches. He mentioned feeling comfortable expressing his thoughts and emotions to his mother. However, he shared that he hesitates to say anything to his father that might upset him, referencing a past comment where his father suggested he might as well move back to Brisbane. [Y] reported that whilst he loves his stepfather, he also loves and needs his father.
[…]
34. [Y] was asked if he would like to have more or less time with either parent, and if he had any opinion on how he would like his future parenting arrangement to be. [Y] expressed a clear desire for an equal, week-about parenting arrangement. He emphasised that he loves both of his parents but wishes his father would allow him and [X] to practice their Islamic faith while in his care. Additionally, [Y] stated that he would like his father to be punctual for changeovers.
The Expert identified no concerns regarding the children’s physical safety in the mother’s care (see paragraph 35 of the Report). I note paragraphs 41 and 43 of the Report:
41. During the interview, both children expressed awareness of the parental conflict, noting that their parents frequently argue and have differing parenting styles and opinions regarding what is in their best interests. [Y] shared that his mother has shown him text message exchanges between her and the father, highlighting that the father is not kind to her in his communication. [Y] also reported that his father does not like [D] and speaks about him in a derogatory manner. Both children expressed a desire for their parents to improve their co-parenting relationship and get along better.
[…]
43. One of the issues in dispute is the time the children spend with the father, and while the parents disagree on this, the children both report the desire to increase their time with the father. Both children also sought for the father to allow them to practice Islam whilst they are in his care.
I note paragraphs 45 to 51 of the Report:
Parents’ Understanding of the Children’s Needs
45. Both parents described [X] as an intelligent young lady and a high-achieving student. The father reported that when she attended [O School], [X] was consistently achieving beyond grade expectancy across all key learning areas. Both parents also reported that [Y] has a diagnosis of ADHD and that he requires support to maintain focus to non-preferred tasks. To date, the parents have not agreed to medication as a management tool for [Y]’s ADHD symptoms and have instead adopted behavioural and practical strategies to support his learning and development. According to the father, he had considered both children’s learning needs when choosing a suitable school and that he was satisfied with [O School]’s high academic focus and NAPLAN results. Regarding the mother’s decision to change the children’s school, the father expressed concern that the decision had been made on the convenience of the location. He stated that [N School] does not cater to the children’s specific learning needs and expressed concern for their academic progression.
46. The father accused the mother of imposing her practice of Islam on the children. He reported that during their relationship, [Ms Baldini] had not practiced Islam and that they had agreed that they would not raise the children to be observers of any particular faith. According to the father, [X] had not had any conversations with him regarding her practice of religion, Islam or the possibility of her wearing a hijab until [Ms Baldini] phoned him in June 2024 to inform him that [X] was Muslim and that she had decided to wear a hijab. The father opined that [X] is not old enough to make the decision to wear a hijab or to practice religion. He was, however, agreeable to the children learning about different religions and cultures. At interview, both children stated that they identify as Muslim and expressed a strong connection to their faith. [X], in particular, shared that she feels anxious both before and after spending time with her father. She explained that his comments about Islam and his refusal to allow her to wear the hijab have been upsetting for her. [Ms Baldini] emphasised that she had not forced or encouraged [X] to wear the hijab, nor to become a Muslim. She explained that through the process of reconnecting with her Islamic faith, the children developed a curiosity and desire to learn more about the religion.
47. At interview, [X] clearly stated that her choice to adopt Islam and wear the hijab was entirely her own. She also reported experiencing much anxiety and distress in response to her father not accepting her religion. It is the report writer’s opinion that the ongoing lack of communication between the parents about this matter is placing significant emotional pressure [X]. The parents have not been able to communicate directly with each other about this issue, effectively placing [X] in the middle of the parental conflict. This dynamic is likely causing [X] considerable distress, as it appears that she is managing the parents' conflicting perspectives on a deeply personal decision.
48. The parents differ in their proposals however their proposals each reflect a reasonable attempt to prioritise the children based on an appropriate understanding of the children’s needs. The parents appeared genuine in their desire to understand the children and ensure that the children’s needs are being appropriately considered and met. The father demonstrated understanding of the children’s need for their mother, and was particularly focused on their need for quality education that meets their learning needs.
49. Similarly, the mother demonstrated a well-developed understanding of the children and their needs, emphasising the importance of their psychological and emotional wellbeing, meaningful social connections, and the freedom to practice their religion. She explained that her decision to change the children’s school was made with careful consideration of their educational needs. Specifically, she expressed concerns that [Y] was not receiving adequate learning support for his ADHD at [O School], noting that she had attended multiple meetings with his teachers to address these issues. She believed that she was acting in the best interests of the children by changing their school.
DEVELOPMENTAL CONSIDERATIONS
50. At her stage of development, [X] will be developing a stronger sense of identity and the focus on herself will increase. Her communication of thoughts and feelings will be improving. In this stage of development, parental support continues to be important, so her parents should encourage [X] to communicate with them, and it is important that they maintain a non-judgmental stance in their conversations with her. [X] will have strong opinions and ideals, and needs to feel valued and respected by both parents.
51. [Y] is also starting to develop a clearer sense of identity and self-esteem which is influenced by feedback from adults and peers. He requires a consistent and supportive environment to ensure facilitate his emotional wellbeing.
The Expert made various recommendations, including those found at paragraphs 52 and 53 of the Report, to which the ICL made specific reference:
52. An area for improvement is related to the parents’ attitudes towards each other. If they are able to put the conflict behind them and focus on aspects of parenting that they perceive the other to be doing well, they may be able to role model to the children mutual value and respect for one another. If they are able to achieve this, it will assist the children in maintaining important connections and relationships with both parents and their partners. This will continue to be important as the children progress in age and develop a deeper awareness of the dynamic between the parents.
53. Both children need the parents to foster a sense of belonging in each home that is not dependent on the amount of time they live with each of them, or their religious affiliation. [X] and [Y] need the parents to actively listen to their views and support their preferences about the parenting arrangements.
COMPETING CONTENTIONS
Mother
The mother contends that it is in the best interest of the children to travel to Country C for the proposed holiday as it will allow them to “decompress” in the context of significant emotional and psychological strain over the past six months. The period in question, says the mother, has included the re-establishment of time with the father, interviews with the Expert (which I note are not within the last six months but are nevertheless recent), engagement with the Independent Children’s Lawyer, instability of accommodation including three months in a refuge following the separation from her more recent partner, X commencing high school, X attending on a counsellor, and both parties separations from their most recent partners.
The mother contends that she is not a flight risk, in that she was born in Australia and has always lived here, has a large extended family in Australia including nine siblings, and she is the carer for her disabled father. The mother says that she has no family overseas. The mother deposes that the children’s lives are based entirely in Sydney including their schooling, extended family, friends, doctors and extracurricular activities. The mother deposes to living in a three-bedroom rental property in Sydney for which she receives a rental subsidy while awaiting public housing.
The mother says through her legal representative that, were X to experience a mental health crisis while in Country C, she could access X’s counsellor in Australia via telehealth and also contact a Help Line by telephone, as she did in January this year.
The mother contends that the children are looking forward to the proposed holiday.
Father’s Contentions
In his oral submissions, the father identified that he respects the mother’s rationale for the holiday as a way of assisting to solve or reduce the children’s stress but said that it need not be overseas. He said that the time could instead be used to travel to a destination within Australia.
The father was opposed to Country C as a destination noting it is a “Muslim majority country”. When asked to expand on the submission, the father said that he has no support in Country C and no ability to assist the children were an incident or misadventure to occur. It was difficult to understand precisely what the father meant by this given his concession that he could travel to Country C if necessary. However, doing my best, I understand him to be saying that due to the poor degree of parental communication and high levels of conflict, he cannot rely on the mother to inform him of a problem during the trip for which the children would require his intervention or support.
The father contended that the trip would escalate conflict between the parties. When asked whether that could be ameliorated by his agreement to the trip, the father cited the fact that Country C is not a signatory to the Hague Convention on the Civil Aspects of Child Abduction. The father did not point to any evidence that the mother was a flight risk but expressed a more general concern about this possibility.
In his oral submissions, the father contended that the trip to Country C ought not occur, although he is not opposed to the mother using the same dates for travel with the children within Australia. This is at odds with paragraph 4 of his affidavit filed 15 May 2025 wherein the father cited a disruption to the children’s school attendance as a reason for the Country C trip to be opposed. It cannot follow that the children could travel elsewhere in Australia, but not to Country C if their school attendance is really a problem.
The father conceded that he has used requests by the mother, including to travel to Country C with the children, as bargaining chips because he has been desperate to see the children.
Independent Children’s Lawyer Contentions
The Independent Children’s Lawyer supports the mother’s proposal for travel. She submits that the mother is not a flight risk, noting for example that the children are enrolled in Australian schools, and the mother is the carer of her elderly father.
The Independent Children’s Lawyer acknowledged that the process for causing children to be returned from a non-signatory state is more difficult than from signatory state and a bond may be a partial amelioration of this.
The Independent Children’s Lawyer submits that the father cannot posit that he has concerns about X ’s self-harm incident in December 2024 in the face of the text message located at page 19 of Exhibit M1.
The Independent Children’s Lawyer identified that it is a matter of considerable concern that the father has used this proposed trip, and other matters historically (such as Y’s passport application in 2023), as points of leverage with the mother, and that such is a “quid pro quo” approach which undermines the veracity of his opposition to the proposed trip.
The Independent Children’s Lawyer submitted that the relationship between the children (or at least X) and the father is fractured, and that his opposition to an opportunity for them to experience a sense of comfort, stability and joy from a holiday is concerning.
The Independent Children’s Lawyer has described the father as “his own gaoler” in that he has not availed himself of the opportunity to arrange family therapy despite the interim orders from December 2024 and the agreement reached at mediation in March 2025. The ICL submits that the father cannot sustain a contention that he is desperate to see the children while simultaneously failing to take the therapeutic steps available to him.
APPLICABLE LAW
Consistent with the provisions of s 69ZL of the Act, my Reasons are, by necessity, short.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to any disputed facts.
Parenting proceedings are governed by Part VII of the Act. Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration in making a parenting order. Section 60B of the Act outlines the objects and principles underlying Part VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC.
The Full Court in Goode & Goode (2006) FLC 93-286 set out the procedural steps in an interim application. An order permitting a child to leave the jurisdiction is a parenting order. Authorities such as Kuebler & Kuebler (1978) FLC 90-434, Line & Line (1997) FLC 92-729 (Line) and DeLuca & Farnham [2019] FamCAFC 100 (DeLuca & Farnham) identify a number of factors that are relevant to a determination that I am required to make in assessing the risk of return of the children to Australia.
In DeLuca & Farnham, the Full Court affirmed propositions arising out of the Full Court’s earlier decision in Line. In that respect, the Full Court in DeLuca & Farnham observed as follows:
35.In Line & Line (1997) FLC 92-729 (“Line”), the Full Court set out at [4.49]–[4.51] relevant matters when considering the authorisation of international travel as follows:
4.49 The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).
4.50We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25 October, 1980 (“the Convention”). However, in considering and deciding what weight to give to this factor, the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country.
4.51Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context the relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level. In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration.
39.In Line, the Full Court said at [4.48] that the two-fold purpose of security was to provide a sum:
a)Which would realistically entice the person removing the children to return; and
b)To adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.
In Adamson & Adamson [2018] FamCA 523 (Adamson), McClelland J (as he then was) observed:
50. It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
I will address such matters as are relevant.
Country C is not a Hague Convention country. I note the mother’s evidence about her ties to Australia. The father does not assert flight risk in any serious way. Only that if the mother did not return, it would be harder for the children to be brought back to Australia in the absence of the Convention.
I accept that the mother has ties to Australia and that she has extended family in this country, is the carer of her disabled father and the children are enrolled in schools and otherwise engaged with their local community. The mother’s affidavit identified strong family and social connections to Australia. All of this points to a motivation for her to return to Australia.
The father does not point to any evidence of the mother being likely to retain the children outside the jurisdiction, other than a general concern.
Consistent with the observations of the Full Court in Line, I accept there is an inherent risk consistent with the father’s fears that the mother may not return. However, absent any evidence that grounds a fear in relation to that proposition more meaningfully, I am satisfied that the mother is likely to return to Australia with the children after the proposed 10-day holiday.
I now turn to the s 60CC considerations such as are relevant to my determination.
There is no evidence that leads me to be concerned that the children would not be safe in the mother’s care during the proposed trip. They primarily live with her, the father does not raise a particular contention concerning risk, and the expert assessment suggests the same.
Of concern to me is how X may cope if she were to become emotionally dysregulated while overseas. The mother, through her lawyer, identified that X’s counsellor can provide telehealth appointments and that the mother can contact a Help Line by telephone. The mother, I accept, acted proactively and promptly to make appropriate arrangements in January of this year when X’s needs were such that she required intervention by a professional person and I am satisfied that she would do so again. I take judicial notice of the fact that Country C is about three hours behind Sydney, such that accessing telephone-based services with a Sydney provider is feasible for X.
The children are not currently spending any time with their father. He says that he is desperate to do so yet does not explain why he has not availed himself of the opportunity to arrange family therapy. In any event, the father’s oral submissions were to the effect that the children could use the same 10 days to go on an interstate holiday with the mother i.e. spend the same time away from Sydney, and him in any event.
There is no evidence of the children’s views with regard to this proposed travel. That said, it was commonly accepted that the children would be looking forward to the trip and would be disappointed not to go. The father contends that the strength of his relationship with them is such that any disappointment would not degrade that relationship.
Having regard to the Report, I am satisfied that the children have a close relationship with each parent although there are specific points of tension between the father and X that require expert therapeutic intervention should the father wish to avail himself of that.
There is no other matter relevant to my consideration under s 60CC.
It was commonly accepted that a holiday next week would be beneficial to the children to allow them to “decompress” in the context of their stress. A holiday to Country C has been booked and the children are aware of it and likely looking forward to it. The circumstances in which the arrangements were made by the mother are matters for final hearing and will no doubt be the subject of much discussion. However, this is not the time to debate those issues. The fact is, across the bar table, all parties recognise that the children would benefit from a holiday. The father suggests a different destination in the same period, thus cannot be heard to say that he would be missing out on time with them. The father’s affidavit refers to the children missing school, which I accept is not ideal. However, given he is supportive of a non-overseas holiday in the same period, the children’s absence from school is not an issue.
I am concerned about the resort by the father to using events such as this as “bargaining chips” in his interactions with the mother. Again, that is a matter for final hearing and more detailed expert evidence in due course. For present purposes, it reveals a disingenuous stance on the father’s part. He submitted that he did not intend in historical examples of such bargaining (e.g. the 2023 passport issue) to be controlling. Perhaps not, but it is the impact of this stance upon the children that operates on my mind.
I am required to act cautiously in the circumstances. I am satisfied that any urgent psychological needs for X as may arise whilst in Country C can and will be addressed appropriately by the mother from Country C and that it is more likely than not that the mother will return to Australia as proposed. I am satisfied in all the circumstances that it is currently in the best interests of the children that they be permitted to leave the jurisdiction for a 10-day holiday to Country C.
FINAL DISPOSITION
To ensure a constructive and age-appropriate narrative is provided to the children about this application, I will ask the Independent Children’s Lawyer to attend to that task and restrain the parents from discussing this matter with the children until she confirms that she has spoken to the children. I am thankful to the Independent Children’s Lawyer for agreeing to do the same, either this (Friday) evening or tomorrow (being a Saturday and a day she is not expected to work) as I am of the view that it is in the children’s best interests that they receive a constructive and balanced narrative about why it is they are going to Country C, given they aware of today’s proceedings.
I will make an Order for the mother to pay a surety of $10,000 as proffered by her. Those funds may be paid into the trust account of the Independent Children’s Lawyer. The Court is again thankful to the Independent Children’s Lawyer for making that facility available to the parties in circumstances where the father is self-represented.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 25 July 2025
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