Feeney & Feeney
[2022] FedCFamC1F 420
Federal Circuit and Family Court of Australia
(DIVISION 1)
Feeney & Feeney [2022] FedCFamC1F 420
File number(s): SYC 8031 of 2019 Judgment of: MCCLELLAND DCJ Date of judgment: 10 June 2022 Catchwords: FAMILY LAW – PARENTING – Airport watchlist – Whether the child should be placed on the airport watchlist – Where the mother has previously unilaterally left the child in Country F – Current political volatility of Country F-Country G conflict – Imminent sale of mother’s Sydney property creates a period in which mother lacks residential ties in Australia – Unacceptable risk of mother removing the child from the Commonwealth until the mother purchases new property in Australia – Child placed on airport watchlist. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 43, 60B, 60CA, 60CC, 65Y, 67ZC
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fogarty, John, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
Line & Line (1996) 21 Fam LR 156
N and S (1996) FLC 92-655; [1996] FamCA 139
Napier & Hepburn (2006) FLC 93-303; [2006] FamCA 1316
Nikolakis & Nikolakis [2010] FamCAFC 52
Rice and Asplund (1979) FLC 90-725; [1978] FamCAFC 128
Division: Division 1 First Instance Number of paragraphs: 134 Date of hearing: 4 April 2022 Place: Sydney Counsel for the Applicant: Ms Spain Solicitor for the Applicant: Edwards Family Lawyers Counsel for the Respondent: Ms Cantrall Solicitor for the Respondent: ATW Family Law ORDERS
SYC 8031 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FEENEY
Applicant
AND: MS FEENEY
Respondent
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
10 june 2022
THE COURT ORDERS THAT:
1.That each party, MR FEENEY born 1975 and MS FEENEY born 1983, and their servants and/or agents be and are hereby restrained by injunction, irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing, attempting to remove or causing or permitting the removal of X, born 2016 (“the child”), from the Commonwealth of Australia until the child is 18 years of age or such earlier time as the parties agree in writing.
2.IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watchlist, in force at all points of arrival and departure in the Commonwealth of Australia, and maintain the child's name on the Watchlist until the child is 18 years of age or such earlier time as the parties agree in writing.
THE COURT NOTES THAT:
A.The parties acknowledge that, consistent with the principles adumbrated in Rice and Asplund (1979) FLC 90-725, there may, in the future, be changed circumstances of sufficient significance such that either party is justified in bringing further proceedings to seek a variation of these orders.
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 Feeney & Feeney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
To their credit, the parties, Mr Feeney (“the father”) and Ms Feeney (“the mother”) have been able to resolve their disputes in respect of both property and parenting issues other than in respect to one issue, that is, whether the parties’ five year old daughter, X (“the child”), should be removed from the airport watchlist maintained by the Australian Federal Police.
The controversy has arisen in circumstances where the mother was born in Country F, moved to Australia when she was 17 years old and has lived here since that time. She seeks an order for the child to be removed from the airport watchlist so that, from time to time, she can engage in international travel with the child, including returning to visit Country F where her relatives, including, most relevantly, the maternal grandparents, reside.
The father acknowledges that, in ordinary circumstances, it would be desirable for the child to be able to travel overseas with her mother, but he contends there is an unacceptable risk that the mother will retain the child in Country F if orders are made as sought by the mother. In this regard, in 2019, the mother travelled to Country F with the child without the father’s consent and left the child, who was then approximately two and a half years old, in the care of the maternal grandparents for a period of approximately nine and a half weeks while the mother returned to Australia.
In contending that there is an unacceptable risk of the mother travelling to Country F and retaining the child in that country, the father refers to the following:
·The mother’s past conduct as being an indicator of future conduct;
·The fact that the mother now holds a substantial cash sum as result of settlement of the parties’ property proceedings; and
·The mother has placed the apartment in Suburb B, which she owns, on the property market.
In terms of assessing the magnitude of that risk, the father contends that the child would be at an unacceptable risk of physical and psychological harm as a result of potential instabilities in the Country F political environment, in circumstances where that country is currently involved in armed conflict with Country G.
Comparatively, the mother contends that, insofar as her past conduct is relevant, she travelled overseas in 2019 with the child due to an inability to obtain the father’s assistance to care for the child at a time where she was particularly busy in her employment as a professional, having regard to her increased responsibilities at the end of the financial year. While the father did not approve of that travel, the mother notes that, consistent with her repeated statements, she eventually returned with the child to Australia.
The mother also notes that she has placed her apartment in Suburb B on the property market in order to supplement funds that she obtained from the property settlement so that, in combination, she can acquire a suitable home in the C Region of Sydney that is within a 30 minute drive from where the father lives.
The mother attests that she fully understands the father’s concerns about the child travelling to Country F in the current international political climate and agrees that such travel is not appropriate at this point in time. She contends, however, that there are other options for the child to maintain contact with the maternal family, including meeting her maternal grandparents at another location.
For reasons which I explain, the father has not satisfied me on the balance of probabilities that the mother is likely to retain the child in Country F. Nevertheless, I have determined that, at this point in time, there is an unacceptable risk of the mother travelling to Country F in circumstances where she will shortly not own real property in Australia which, in my view, increases the potential for her to leave the Commonwealth. That possibility must be assessed against the potential impact upon the child if the mother did travel to Country F with the child at this point in time. The geopolitical situation involving Country F and Country G, as evidenced by a travel warning issued by the Commonwealth government, is such that the child would be at a particular risk of physical and psychological harm if she travelled to Country F and the political situation in that country further deteriorated.
To his credit, the father acknowledged that circumstances may change in the future and, in the event that he is successful in these proceedings, he is prepared to agree to a notation that the mother should not, in the event of changed circumstances, be precluded from bringing an application in accordance with the principles adumbrated in the well-known case of Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”).
DOCUMENTS RELIED UPON
The father relied upon the following documents:
·Further Amended Initiating Application filed 11 March 2022;
·Affidavit of the father filed 11 March 2022 (“the father’s primary affidavit”);
·Affidavit of the father filed 29 March 2022 (“the father’s secondary affidavit”);
·Case Outline for the father filed 30 March 2022; and
·Affidavit of Ms D filed 30 March 2022 (marked “Exhibit D”).
The mother relied upon the following documents:
·Amended Response filed 18 March 2022;
·Affidavit of the mother filed 18 March 2022 (“the mother’s primary affidavit”);
·Affidavit of the mother filed 1 April 2022 (“the mother’s secondary affidavit”); and
·Case Outline for the mother filed 1 April 2022.
Background
The mother was born in Country F in 1983 and is currently aged 39.
The mother came to Australia when she was 17 years old and has lived here since that time. The mother was granted permanent residency in 2007 and became an Australian citizen in 2012. She is a professional and works as a manager for a multinational company.
The father was born in Country H in 1975 and is now aged 46. He has been living in Australia since 2007 and is a permanent resident of Australia.
The parties commenced living together in 2012 and the mother contends that they were married in 2013, while the father deposes that the parties were married in 2014. There is also a dispute between the parties as to the date of separation however, for the purposes of this decision, I accept the mother’s contention that they separated in March or April 2019.
Both parties acknowledge that, after separation, they have continued to live separately but under the one roof until the present time.
The father filed an Initiating Application seeking both parenting and property orders on 26 November 2019. He successfully obtained an interim order placing the child on the airport watchlist.
In November 2021, the parties resolved all other issues in dispute. The outcome of the property proceedings, by way of summary, was that the father was to retain the former matrimonial home and provide the mother with a payment of $1,050,000, together with a superannuation splitting order. The parties have agreed for the mother to continue residing in the former matrimonial home for a period of six months after the settlement date, being 20 January 2022. After the initial three months, the mother will be required to pay the father $500 per week by way of rental payments for any period that she remains living at the property, not exceeding a further three months.
The mother currently has the settlement monies in an ANZ Bank account while she searches for a property. She intends to purchase a property in the C Region in relatively close proximity to where the father currently resides. To supplement the funds that she has available from the property settlement, the mother has placed a unit that she owns in Suburb B on the market. The mother’s intention to purchase a property in the C Region is consistent with an agreement between the parties that they would live within 30 minutes travelling distance from each other. This is a significant issue in the proceedings. The father contends that, unless and until the mother commits funds that are available to her to acquire another property in Australia, there is an increased risk that she will travel to Country F with the child. I accept that currently there is such an increased risk of the mother travelling, particularly after the time she sells her current Suburb B property and before she acquires a property in the C Region in accordance with her stated intention.
The parenting aspect of the consent orders made on 17 November 2021 is that the child is to live with the mother and spend time with the father six nights per fortnight and half of school holidays, as well as special occasions.
Both parties acknowledge the child has a loving relationship with each parent and both agree that it is important for the child to have a meaningful relationship with each parent.
Both parties acknowledge the other to be a good parent and that the child spends quality time in the company of each parent. Both parents were well presented, articulate and reasonable and I accept that they are both good parents.
The child commenced kindergarten at a local public school this year and is enjoying school and has settled in well. She has many friends that she met at pre-school who also attend school with her.
The child is bilingual, speaking both English and Country F language, and has a number of friends who are also of Country F background. The father contends that he has a concern regarding the possibility of the mother returning to Country F in circumstances where she only speaks to the child at home in Country F. The mother contends she does this consistent with advice she has received that, in order to develop the child’s bilingual capacity, one parent should speak to her in English and the other parent in Country F. I accept the mother is simply applying that philosophy and do not accept that there is an increased risk of the mother travelling to Country F merely as a result of the fact that she adopts that practice.
The child is engaged in a number of activities including attending Country F language classes, and sports. She also attends art class. She enjoys the ocean and experiencing the outdoors. She also enjoys outings such as going to the zoo and the aquarium.
The parties have engaged in extensive international travel prior to the birth of the child.
The parties have been fortunate to go on frequent holidays within Australia and have also travelled abroad with the child.
With the consent of the father, the mother applied for the child to have Country F citizenship on 19 September 2018. That application was granted on 28 January 2019.
Significantly, on 31 May 2019, the mother travelled to Country F with the child.
The mother contends that, during the course of 2018, the parties had discussions about the father travelling to Country H for a period of approximately three months in 2019. She contends, in that context, that it was the father who initially proposed, to the mother, that she take the child to spend time with the maternal grandparents during that period. The maternal grandparents have also visited Australia on a number of occasions since the birth of the child and it is not disputed that the child has a close relationship with her maternal grandparents. These visits are detailed in paragraph 33 of the mother’s primary affidavit.
The evidence is not such that I am able to determine who initiated the proposal to take the child to Country F, but I am satisfied that, in late 2018 and into January 2019, the prospect of the mother travelling to Country F with the child was the subject of a number of discussions between the parents.
With respect to this issue, the mother refers to a specific text message reply sent by the father to the mother in which he agreed to the mother travelling overseas with the child.
On 9 January 2019, the mother sent the father a text message (annexure ‘W3’ to the mother’s primary affidavit) which read:
Hey, just to re-confirm what we spoke yesterday regarding trip to [City E]. [X] & I will fly on 31/5 and then I'll come back to Sydney in mid June and fly back in mid August to pick her up. This part would stay unchanged. Then we'll fly back to Sydney in early September, but if everything goes well and according to plan, we'll change flights to [Country H] in around of 20/8. Is it what we discussed yesterday?
(As per the original)
The father replied in the positive to that text message, stating “yes.”
The mother contends, at paragraph 41 of her primary affidavit, that, as result of receiving that text message on 9 January 2019, she booked flights for herself and the child to travel to City E on 31 May 2019, with the return flights booked for 10 September 2019.
I am satisfied that the father did agree to the child travelling with the mother to Country F at that point in time, in circumstances where he was also proposing to travel to Country H during the same mid-year period.
This was in circumstances where I am satisfied the parties understood that the mother anticipated that her financial responsibilities with her employment were such that she would be particularly busy during June and July 2019. I am further satisfied that both parties understood that, in the event of the father being in Country H during the northern hemisphere summer months, the mother was in need of child care assistance and anticipated that the maternal grandmother was the best person to provide that. It was not disputed that the child had a close relationship with the maternal grandparents, who had stayed for extended periods with the parties on several occasions in the period subsequent to the child’s birth.
The mother contends that, as result of those conversations, she applied for Country F citizenship and a Country F passport on behalf of the child. I accept the mother’s evidence in that respect, which is consistent with the actions taken by the mother, with the support of the father. The parties acknowledged that a precondition to the child obtaining a Country F passport was the child becoming a Country F citizen. The father acknowledges attending the Country F consulate with the mother in late 2018 in order to make those applications.
The mother contends that, after the child obtained Country F citizenship and the mother obtained the child’s passport in January 2019, she advised the father that she intended to travel to City E at the end of May and return to Sydney in early September (paragraph 39 of the mother’s primary affidavit). The father denies any such conversation (paragraph 14 of the father’s secondary affidavit). It is not possible to precisely determine the point in time at which the father indicated his objection to the mother travelling with the child to Country F. However, the mother acknowledges at paragraph 46 of her primary affidavit that, as a result of changed circumstances, the father subsequently withdrew his consent to such travel and that, when she travelled from Australia to Country F, the father did not agree to the travel occurring.
The mother further contends that the parties also discussed the father visiting the mother and the child in Country F, including attending her brother’s wedding which was to be held in August. The evidence is not such that I am able to determine whether such a conversation occurred. I am satisfied however, that, in the period prior to 9 January 2019, it is possible that the parties discussed the potential for the father to travel from Country H to Country F on his way back to Australia, when it was contemplated that the mother would travel to Country F and the father would travel to Country H during the midyear months of 2019.
The mother contends that she advised the father of the flight bookings after they were made. The father denies receiving specific advice of those bookings from the mother. As noted above, by reference to the text exchange between the parties on 9 January 2019, I am satisfied that the father received general information from the mother as to her intentions to leave the child in Country F with the maternal grandmother. However, the father’s subsequent reaction of surprise to receiving advice from the mother that she and the child were on a plane ready to take off from Sydney on its journey to City E on 31 May 2019 causes me to conclude that the father’s version of events is more accurate, in that the mother did not provide him with specific details of the flights that she had booked for herself and the child.
There is no contention between the parties that, on 22 March 2019, the parties had an argument about the proposed trip to Country F, during which the father advised the mother that he no longer agreed for the child to travel with the mother to City E.
On the same day, following the argument, the mother sent a text message to the father, which consisted of a screenshot of the father’s earlier message confirming his consent to the arrangement and that she had “booked all tickets accordingly”. The father replied to that text message with the following:
Things changed. I am not spending [three] months in [Country H] to build the property. That has changed, so has the need to have [X] go to [Country F]. We have discussed this. Conversation is over.
The mother subsequently responded to the father with a series of text messages which, relevantly, included the following statements:
I’ll come back from [City E] on 15 – 20 of June and will go back there on 5 of August. In total six weeks.
…You said before no matter of what the plan [wouldn’t] change.
You can’t change something I’ve booked just because you changed your mind.
I can’t take any leave (annual, sick leave) for June and July. Also I have to go to [New Zealand] for a week for [work] in July. You would have to cancel your travel for July.
The father acknowledged that he commenced new employment in early 2019 and had quite extensive travel commitments as result of his obligations to his new employer, in circumstances where he was in a period of probationary employment.
After sending a schedule setting out her understanding of the father’s travel commitments, the mother sent a further email to the father requesting that he consider her “being away for work from 18 June to 7 August” and seeking his confirmation in writing “that [he] will be at home and [have] no travel for this period.”
In response, the father indicated that he could not commit to reducing his travel and the parties would have to find a compromise. The mother responded that they had found a compromise with her proposal to take the child to Country F and stated “I always put my job last and have [X] and your commitments as a priority. There are only two months of the year where you have to do the same or be more flexible.”
The father responded:
That isn't true. I sacrificed and ended up [losing] my last job because of the exceptional flexibility I needed to cooperate with you and help you with your 'hours' I took a day off that I couldn't afford to do. I have a new job, I have [a colleague] that is a hateful bitch that is making my life miserable. These are her [projects], but they are [projects] I need to make my quota, [if] I don't I am fired, I haven't passed probation!
The mother continued to press her case for her to travel to Country F with the child, stating:
Here is the solution, me and [X] will go to [Country F] and she'll stay with my mum and dad for 6 weeks. Then we'll go for a wedding and go home. You can do your job without stressing out and I can do my [job].
The mother contends that she pressed on with her travel plans to City E, despite not receiving the father’s agreement, in circumstances where the father had commenced a new job and was committed to a number of work trips, including to Melbourne, City J, Perth, and New Zealand. The mother attests to it being anticipated that the father would be away for several nights on each of those trips and that he was accustomed to travelling to the location the day before his work commitments began and travelling home on the day after his work commitments conclude. The father contends that each of his trips were of short duration but does not deny that a number of trips were planned.
On 25 April 2019, the mother sent an email to the day care centre where the child had been enrolled, correcting what she understood to be a misunderstanding on their part in confirming the end of the child’s enrolment. That email from the mother read:
…
Just wanted to clarify that we’re not leaving, just going for holidays and coming back in August. If it’s easier, just keep the security bond until then.
The mother contends that the father was well aware of her intended travel, including as a result of witnessing the mother pack both her suitcase and the child’s suitcase. Again, the father’s reaction to the text message from the mother on 31 May 2019 relating to the imminent flight to City E is such that I prefer the father’s evidence that he was not aware of the mother’s plans to travel to Country F with the child.
In preferring the evidence of the father, I have also had regard to the evidence in which the mother acknowledged that, on the morning of 31 May 2019, she did not make mention to the father that she was travelling to City E, nor did she suggest that the father give any special attention, such as a kiss and hug, to X, who he would not see for several months. The mother further acknowledged that she did not make any arrangements for the father to drive her and the child to the airport. The father’s evidence is also more consistent with the mother’s actions in sending a text message to him, which she acknowledged was sent when she had boarded the plane with the child at 3.14 pm on 31 May 2019 and read “we’re about to take off, will call you when we land in [City E]. We’ll see you in a couple of weeks. XO”.
The father’s evidence is also consistent with his alarmed response to receiving that notification from the mother, including immediately sending her a series of text messages which read:
What?!?
You had better be kidding.
I am calling the police, if you are joking tell me now because this is kidnapping.
On 31 May 2019, the mother travelled with the child to Country F and, after a period of two weeks, returned to Australia on 16 June 2019 without the child. She left the child, who was then approximately two and a half years of age, in the care of her parents. The mother attests that she did so in circumstances where the child was comfortable in the care of the maternal grandparents.
In the period after the mother arrived in City E, the father sent a series of messages to the mother indicating his distress at her actions and imploring her not to leave the child with her grandmother, stating “… I am going to ask you one last time. Are you bringing [the child] home with you[?] Please say yes, if you don’t you will force me to make a decision that will change our, and [the child’s] life for ever.”
In response to the mother’s assertions that the father had knowledge of her intended travel plans, the father sent the following message:
... You left the country with my child without telling me! I told you months ago that you were not to leave. You left knowing full well you were did [sic] not have my permission to take [the child] out of the country. You have abducted her and taken her to [Country F], with the intent to leave her there! You are doing this all with complete disregard to my wishes. You do not have the right to make these decisions. You are ignoring my insistence to bring her back!!
The mother returned to Country F on 8 August 2019 and attended her brother’s wedding. She contends that she asked the father to travel to Country F to attend the wedding with her. The father denies that such a request was made. As previously indicated, I have been unable to resolve whether such a request was made.
The mother returned to Australia with the child on 2 September 2019. She contends this was approximately eight days earlier than the return trip that she had previously booked for 10 September 2019. It is agreed that the father collected both the mother and the child from the airport.
The mother contends that when the child was staying with the maternal grandparents, the parties would communicate regularly with the child who, the mother contends, was comfortable and content during each of the FaceTime communications. Comparatively, the father contends that after the mother left Country F, he had difficulty in arranging communication with the child and, on occasions when he was able to communicate, he witnessed that the child was distressed.
In circumstances where the parties acknowledge that, until such time as the child left Australia, she had co-slept with one or the other of the parties, it can reasonably be anticipated that the child would miss her parents; it is implausible that the child would, on each and every occasion that the parents communicated with her, appear to be in good spirits as contended by the mother. The mother’s evidence in that respect had an element of presenting her conduct in the best possible light and, in particular, contending that the child was not distressed at being away from either herself or the father. As I have said, that evidence is, with respect, implausible.
The mother currently holds both of the child’s passports. She contends that the father can access those at any time. The father contends that, despite his requests, she has not shown him the passports. I accept the father’s evidence in that respect, in circumstances where the mother acknowledged, in response to questions from the father’s counsel, that she has retained the child’s passports in her car. Her evidence was that she initially had the passports in the car because she required evidence of the child’s identity in respect to an application. That response did not, however, explain why she had retained the passports in her car for a period of approximately 12 months.
The fact that the mother has retained the child’s passports exclusively in her possession is a factor that I have considered as marginally increasing the risk that she will travel with the child to Country F without the consent of the father.
The parties’ contentions
The father
The father contends that, in circumstances where the mother travelled with the child from Australia to Country F in May 2019 contrary to his express wishes, the mother presents a flight risk, either in terms of leaving with the child to live in Country F permanently or, alternatively, removing the child from Australia for an extended period of time.
The father acknowledges that the mother is in secure employment but notes she is currently in a position of financial flexibility as a result of receiving a lump sum amount from the parties’ property settlement, and also in circumstances where she is proposing to sell the property that she owns in Suburb B.
The father contends that, while it may be the case that the mother is not on the title of a second property owned by her father in City E, his understanding is that it is effectively the mother’s to use should she return to Country F.
The father further contends that the mother has a close relationship with her brother and her parents, who all live in City E, in the event that she does return to City E with the child.
Finally, by reference to the affidavit of an acknowledged expert in Country F family law, Ms D, filed on 30 March 2022, the father contends that, should it be necessary, the delay and expense involved in him commencing proceedings to seek the return of the child from Country F to Australia are such that it would be impracticable.
The mother
The mother contends that she came to Australia 22 years ago, is settled here and wishes to continue to live in Australia for a number of reasons, including that she experiences a better work life balance and a better standard of living than “anywhere in the world” (paragraph 58 of the mother’s primary affidavit).
The mother notes that the child is bilingual, speaking both English and Country F language, and contends that it is important for the child to maintain cultural ties to Country F and to be able to communicate with her maternal grandparents.
At paragraphs 25 and 26 of her primary affidavit, the mother attests to having a number of Country F language speaking friends who currently live in Australia. The mother further attests to having a number of friends at work, through a mother’s group and through the child’s school. She also has a number of friends who do not have children.
The mother attests to losing contact with her childhood friends from Country F, although she does periodically contact them through social media. The mother further attests that the relationships she has with those friends are not, however, as close and as deep as that which she has with those who live in Australia.
The mother also attests to planning to commence a tertiary course during the second half of 2022.
The mother attests to having stable employment in Australia as manager employed by a large multinational company since 2014.
Conversely, the mother contends that it would be extremely difficult for her to obtain employment of equivalent standing in Country F, in circumstances where the training requirements are different and where she would not be familiar with the Country F system.
The mother contends that her ties to Australia include a property that she owns in Suburb B, which she purchased in July 2010 and is currently tenanted. The mother denies the assertion by the father that she owns a property in Country F.
The mother further contends, at paragraph 59 of her primary affidavit, that it is in the child’s interests to be able to travel to Country F to experience her Country F culture, including visiting “its well known theatres and art galleries and [getting] to know the multi century history of Country F.” She would also like the child to meet members of the extended maternal family.
The mother also contends that it is important for the child to be able to engage in overseas travel generally, including to meet members of the paternal family in Country H, as well as visiting other countries.
The mother contends that, whilst she currently holds a substantial cash reserve as result of the property settlement, she is making a genuine effort to purchase a property in the C Region of Sydney, with those funds to be supplemented by the proceeds of sale which she would receive from her Suburb B property.
The mother similarly refers to the affidavit of Ms D in contending that the Court and the father can be confident that recovery proceedings are viable in the event that the father’s concerns came to fruition and the mother did relocate with the child to Country F. She refers to the advice provided by Ms D, who the parties acknowledge to be an expert in respect to the relevant aspects of Country F law, as influencing the mother to seek orders and notations that would enhance the prospect of the father succeeding in obtaining a recovery order if that became necessary.
Applications
The orders sought by the father are set out in his further amended Initiating Application for Final Orders filed on 11 March 2022 as follows:
1.That the Applicant and the Respondent, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the Child, [X] born […] 2016 (“the Child”), from the Commonwealth of Australia.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the Child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child's name on the Watchlist for the said period, or until the Court orders its removal.
The orders sought by the mother are set out in her case outline document as follows:
1.That the parties have leave to take the child, X, born […] 2016, outside the Commonwealth of Australia for a period of not more than four weeks each year on the following basis:-
1.1 The parent who is proposing to travel with the child ("the travelling parent") shall provide the other parent ("the non travelling parent") with an itinerary, which includes all destinations, mode of transport including but not limited to flight or rail/bus details, the address, email and telephone details of all accommodation where the child will be staying and contact details for the child not less than eight weeks prior to the date of departure, except in the case of medical emergency or death of a family member where notice is to be provided as soon as practicable;
1.2 The travelling parent ensure the child has Facetime (or other agreed video conferencing app) contact with the non travelling parent not less than once per week at a time that is practicable for the child;
1.3 The mother shall retain the child's Passports and in the event the child is travelling with the father the mother shall provide the child's Australian Passport to the father at the changeover prior to the departure and the father shall return the child's Australian Passport to the mother at the changeover at the conclusion of the travel.
2.The parties shall do all acts and things and sign all documents necessary including to sign any Application or consent required and to provide any supporting documents required for the child's Australian and/or [Country F] Passport when it is due to be renewed and prior to the due date for renewal.
3.Within one month of the date of these Orders the parties do all acts and things and sign all documents necessary to request the Australian Federal Police to remove the child's name from the Family Law Watchlist ("the Watchlist") in force at all points of arrival and departure from the Commonwealth of Australia and the parties are thereafter restrained from do any act or thing or signing any document to place the child's name on the Watchlist without leave of the Court to do so.
4.That not less than 72 hours before the date of departure a proposed trip in accordance with Order 1.1 herein, the travelling parent shall provide surety for the non-travelling parent, in the event the travelling parent does not return the child to Australia within 48 hours of the return date nominated as per Order 1.1 herein as follows:-
4.1 by provision of the sum of $10,000.00 to be held in the Trust Account of the travelling parent's Solicitor, to remain in Trust and to be released to the travelling parent upon the travelling parent returning the child to Australia at the end of the overseas trip and/or if the travelling parent fails to return the child to Australia within 48 hours of the return date nominated pursuant to Order 1.1 herein, then such funds shall forthwith be released to the non-travelling parent in order to assist the non-travelling parent to obtain the return of the child to Australia; and
4.2 providing to the travelling parent's Solicitor the signed registration papers with respect to any motor vehicle registered in the travelling parent's name, together with the keys for such vehicle with such registration papers and keys to be held in safe custody by the travelling parent's Solicitor on the same terms to be released to either the travelling parent upon the child's return or the non-travelling parent in the event the child is not returned as per Order 4.1 herein and the non-travelling parent shall be able to sell such motor vehicle to raise funds in order to assist the non-travelling parent to obtain the return of the child.
NOTATION:
A.The Court notes that the parties agree that the habitual place of residence of the child [X], born […] 2016, is Australia and that the Australian Courts have primary jurisdiction to make Orders with respect to the arrangements of the child [X].
B.The Court notes that Final Parenting Orders have been made by consent on 17 November 2021 and that these Orders are final Orders of the Court and are enforceable. These Orders include both parenting and financial issues and the Parenting Orders are Orders numbered 1, to 23 inclusive and Notations A, B and C. A copy of the Orders made 17 November 2021 are annexed hereto and marked with the letter "A".
C.The Court notes that upon the making of this Order relating to the child travelling overseas it has come into full legal force and is a Final Order and can be enforced.
Relevant legal principles
As is the case in respect to orders for a child to spend time with each parent, in deciding what orders are appropriate in respect to overseas travel, the Court is required to have regard to the best interests of the child as provided for in s 60CA of the Family Law Act 1975 (Cth) (“the Act”). Section 60CC sets out a number of factors that the Court is required to consider in determining what is in a child’s best interests.
Also of relevance are ss 43 and 67ZC of the Act. Section 43 sets out the principles to be applied in the exercise of the Court’s jurisdiction and includes, in subsection (1)(c), an obligation to have regard to “the need to protect the rights of children and to promote their welfare.” Section 67ZC relevantly provides:
(1)In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
Note:Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.
(2)In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Those legislative provisions are to be interpreted and applied in a manner that is consistent with the objects of Part VII of the Act, which includes in s 60B(1): “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.”
The principles underlying the objects are set out in s 60B(2) and relevantly include:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Determining the child’s best interests
The matters set out in s 60CC of the Act can broadly be divided into the following groupings:
Primary considerations
The primary considerations set out in s 60CC(2) of the Act are as follows:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(a)Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude towards the child and parental responsibilities, of each of the child’s parents.
(c)Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and, if applicable, taking into account a number of stated matters.
(d)Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
(e)Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(g)Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
In Banks & Banks (2015) FLC 93-637, the Full Court outlined a common sense approach in applying s 60CC, noting in respect of parenting proceedings at [48] that “as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant,” and, while there is an obligation on the judicial officer to “consider” each of the matters set out in s 60CC, that obligation does not mean that each factor must be discussed. To do so, as the Full Court observed at [49], risks the judicial officer “[losing] sight of the forest for the trees”.
As previously noted, the sole issue to be determined in these proceedings is whether the child should remain on the airport watchlist, such that it would preclude either parent from travelling overseas with the child.
While I have considered the potential relevance of each of the matters set out in s 60CC of the Act, I will address those specific considerations that have impacted upon the decision that I have made in this matter.
Meaningful relationship
It is accepted by both parties that the child has a meaningful relationship with the other and each parent wishes for the child to continue having a meaningful relationship with the other parent; I accept that is the case. As I have previously indicated, both parties presented as impressive people who clearly love and care for the child.
Protection from harm
In this matter, the potential harm to the child is not due to the prospect of the child being exposed to physical harm or psychological harm from being subjected to or exposed to abuse, neglect or family violence. I am, however, satisfied that in having regard to the child’s best interests, including the child’s welfare, it would not be in the best interests of the child to be separated from her father indefinitely, or even for a protracted period of time. It can reasonably be inferred that such separation has the potential to cause emotional and even psychological harm to the child.
Additionally, in considering the issue of risk it is relevant that, at this point in time, Country F is involved in armed conflict with Country G and, in those circumstances, the Australian government has advised against travel to Country F due to the potential political instability and the possibility of a declaration of martial law. The mother did not challenge the authenticity of that advice, nor the basis upon which it had been given. Indeed, in fairness to her, the mother acknowledged that it is an entirely inappropriate time for the child to travel to Country F given the current international circumstances.
I will subsequently set out why, at the present point in time, the risk factors present an unacceptable risk to the child.
Additional considerations
Issues relating to the child – their views, level of maturity, culture and relationships
The child is very young and, accordingly, only limited weight can be given to her views. I am satisfied, however, that the child clearly loves both of her parents and enjoys being in their company, a sentiment that is reciprocated by each of her parents.
I am also satisfied that the child has a close relationship with the maternal grandparents, who have visited Australia on a number of occasions and exclusively cared for her for a period of approximately seven and a half weeks in 2019.
There was little evidence presented regarding the nature of the child’s relationship with her parent’s siblings. In circumstances where they live in another country, it is likely that the ability for the child to form close relationships with her aunts and uncles has been impacted by that geographical isolation. However, nonetheless, it was not disputed that these relationships are potentially of significance to the child.
I accept that the child has expressed an interest in overseas travel.
It was acknowledged by both parents that it is desirable for the child to have and develop a cultural connection to both Country F and Country H and both parents further recognised that, issues of risk aside, it would be in the child’s best interests to be able to travel to those countries. The father contended, however, that the issue of risk is such that it tips the scales against the child benefitting from being able to engage in international travel.
Issues relating to the parents – decision making, time spent with the child, fulfilment of obligations to maintain the child attitude, capacity and exercise of parental responsibility
Both parties acknowledge the other party as being a good and capable parent.
One area in which the parties proffer differing evidence is in respect to the extent to which the father cared for and spent time with the child in the period prior to the child travelling to Country F in May 2019. The mother contends that, as result of work commitments, the father would return home late and spend many nights away from the child. I am satisfied that both of the parents’ working commitments impacted upon the time that they otherwise would have liked to have spent with the child. In particular, I am satisfied that the father’s working commitments were such that it is probable that the mother spent a greater proportion of her time caring for the child than the father did in the period prior to the mother travelling to Country F with the child in May 2019.
However, the mother acknowledges that, subsequent to her return from Country F in September 2019 with the child, the father has been a much more engaged parent.
I am satisfied that both parents are engaged with the child. They are dedicated to caring for her and provide appropriate physical, emotional and intellectual support and encouragement. They are both, as I have said, good parents.
The mother, through her counsel, acknowledges that she acted in an irresponsible manner in travelling to Country F with the child in May 2019, in circumstances where she acknowledges that the father did not consent to that occurring.
In evaluating the mother’s conduct, I acknowledge the circumstances in which the mother felt compelled to take that course of action, where she was concerned about childcare arrangements for the child during the busy months of the end of the financial year where she had particularly significant responsibilities in her employment. I further accept that the mother found the father’s responses to her request to find a solution to be most unsatisfactory. Indeed, the father’s responses were self-focused and showed little empathy for the circumstances confronted by the mother. In that respect, while the father implored the mother to work towards a compromise, he did not himself propose an alternative course to the mother travelling to Country F such as, for instance, engaging the services of a nanny.
Nevertheless, for a parent to remove a child from the Commonwealth of Australia without the consent of the other parent is a grossly irresponsible act and one which cannot be lightly dismissed.
Issues of family violence
Neither parent has raised the issue of family violence as being a relevant consideration in this matter. There is, however, evidence of each of the parents engaging in a degree of controlling behaviour directed towards the other, with a view to attempting to secure an outcome that they perceived to be in their interests.
This is demonstrated most relevantly in terms of the mother’s conduct in travelling to Country F without the consent of the father. From the perspective of the father, there was a degree of belligerence in his response to the mother’s request to achieve a child care solution during the end of financial year period in 2019.
Effect of change
This is a highly significant issue in these proceedings. Clearly, if the mother did travel to Country F with the child for an indefinite period of time or, for that matter, for an extended period of time, it would be a very significant change for the child. Most relevantly, it would not only remove her from friends and routine activities in which she is engaged in Australia, but would also deprive her of having a meaningful relationship with her father.
Practical difficulty of implementation
Placing the child on the airport watchlist will necessarily cause practical difficulties for the child in travelling overseas with either parent. The effect of the order is that neither parent will be able to travel with the child while that order remains in place.
Avoiding further proceedings
Counsel for the mother contended that, in the event of the Court making the orders sought by the father at this point in time, it will inevitably be the case that there will be further proceedings in circumstances where the mother wishes to travel overseas in the future. I accept that is the case. Indeed, as was discussed with both counsel during the course of these proceedings, the mother’s application, at this point in time, has been rendered much more difficult by the fact that she is currently in between being the owner of real property in Australia and effecting her stated intention of acquiring a home in the C Region. Further, the potential for the mother to travel to Country F at this point in time presents particular complications due to the ongoing conflict between Country F and Country G.
To his credit, the father acknowledged that he may have a greater sense of security in the mother not retaining the child overseas in circumstances where she acquires a property in Australia and further, in circumstances where it was indicated to the father that, as a result of Court orders being in place, it would be an offence for the mother to remove the child from the Commonwealth without his consent or order of the Court pursuant to s 65Y of the Act.
Balancing Relevant considerations
In this matter, I have had to balance those benefits to the child in being permitted to travel to Country F as against the risks of that occurring without the consent of the father.
It would clearly be in the interests of the child to be able to travel overseas with either of her parents. That benefit would be in respect to not only broadening her life experience but facilitating the child having a greater understanding of her Country F and Country H cultural heritage.
Also of great relevance is the child’s right to have a close relationship not only with her parents but also members of their respective extended families. In that respect, clearly the child has a close relationship with her maternal grandparents who reside in Country F.
The following principles provide some assistance in undertaking that balancing exercise.
An unacceptable risk to a child can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[149].
Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N and S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96].
The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at 81,890–81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM titled ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
Relevant risk related considerations associated with potential international travel have been identified in a number of authorities.[1] Those considerations include:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effect on the child of any deprivation of spending time with the other parent;
·any threats to the welfare of the child by the circumstances of the proposed environment; and
·the degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.
[1] Kuebler & Kuebler (1978) FLC 90-434; Thomason & Malhotra [2010] FamCAFC 85 at [49]–[50].
In this case, the Court has not been provided with details of the mother’s proposed travel which, at this point in time, is aspirational rather than definite.
For reasons which I have set out, I am satisfied that the child would suffer significant emotional distress in the event that she was deprived of the opportunity of spending time with her father for an indefinite period.
It was accepted by both parties that the current international situation involving Country F and Country G presents risks associated with international travel to Country F. Those risks have been identified in the travel advisory material issued by the Australian government, which both parties acknowledge to be authentic.
The Court acknowledges the mother’s promise that she would return to this jurisdiction within the proposed time limits of one month’s travel. The degree of satisfaction that the Court can have aside from the mother’s word is, however, at this point in time, limited having regard to the following:
·the mother’s past conduct as a predictor of the future;
·the fact that the mother is currently in the process of selling her Suburb B property;
·the mother has not yet acquired nor identified the property which she intends to purchase in the C Region; and
·the mother has retained the child’s passports in her sole possession.
Even though that evidence is not sufficient to satisfy me that, on the balance of probabilities, the mother is likely to unilaterally take the child to Country F without the father’s consent, there is a real possibility of that occurring. Applying the risk matrix to which I have referred, having regard to that real possibility and the consequence to the child if the mother did engage in that unauthorised travel, I have concluded that the prospect of the mother travelling to Country F with the child is, at this point in time, an unacceptable risk.
Having determined that there is an unacceptable risk, the question becomes whether that risk can be mitigated. Counsel for the mother referred to the affidavit of Ms D in contending that the father would have efficacious legal remedies available to seek the return of the child, despite the absence of a remedy pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). However, the reality is that such proceedings which would require the father to travel to Country F and would be both complex and costly.
In that context, by way of mitigation of risk, the mother also proposes that the parent intending to travel with the child lodges a $10,000 bond prior to commencing travel. In Line & Line (1996) 21 Fam LR 156 (“Line”), the Full Court stated that, in determining whether a proposed bond was adequate, a trial judge should have regard to whether the sum was sufficient to:
·realistically entice the person removing the child from Australia to return; and
·adequately provision the party left in Australia to take action with proceedings in Australia and overseas to obtain the return of the child if required.
In the context of the potential cost of legal proceedings, the Full Court in Line noted that an additional consideration is whether the country to which the parent will travel with the child is a signatory to the Hague Convention.
In the present case, the proposed bond of $10,000 is, in my view, inadequate having regard to the fact that the father is unable to obtain remedy pursuant to the Hague Convention, and also having regard to the substantial cash resources that the mother currently has available, which will be supplemented upon the sale of the Suburb B property. Until those cash reserves are applied to the purchase of property in Australia, they are available to the mother as a significant resource that can easily be transferred out of the jurisdiction. That cash reserve available to the mother significantly exceeds the amount of the proposed bond.
Summary and conclusion
Accordingly, having identified an unacceptable risk of the mother travelling to Country F with the child for an indefinite period and consideration of such risk has included an assessment of the impact that such conduct would have on the child, I have determined that, at this stage, there are no appropriate steps that can be taken to mitigate against that risk. Accordingly, I propose to make orders as sought by the father.
In doing so, I note that the assessment of risk would substantially diminish in the event of the mother acquiring real property in Australia as she proposes. Accordingly, I propose to add a notation which is consistent with that agreed to by the parties: that the parties acknowledge the circumstances giving rise to these orders may change in the future, such that the Court may consider revisiting these orders without being constrained by the principles adumbrated in Rice and Asplund.
I certify that the preceding one hundred and thirty four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 10 June 2022
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